United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: PA/08506/2016

 

THE IMMIGRATION ACTS

Heard at Glasgow	Decision & Reasons Promulgated
On 8 May 2017	On 9 May 2017

Before

 

UPPER TRIBUNAL JUDGE MACLEMAN

 

Between

 

K S NABE

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

 

Respondent

 

Representation

 

For the Appellant: Mr S Martin, of Jain, Neil & Ruddy, Solicitors

For the Respondent: Mr M Matthews, Senior Home Office Presenting Officer

 

DETERMINATION AND REASONS

1.              The appellant is a citizen of Iraq, born on 12 November 1992. He appeals against a decision by First-tier Tribunal Judge Handley, promulgated on 2 February 2017, dismissing his appeal against refusal of asylum.

2.              The grounds of appeal to the UT make various challenges to the judge's adverse credibility findings, classified as applying too high a standard of proof, inadequacy of reasoning, irrationality, and failure to take account of the appellant's explanations.

3.              The judge granting permission drew attention to [25], where the judge says:

" Asylum. The standard of proof is the balance of probabilities."

4.              Mr Matthews sought to uphold the decision, observing that is by an experienced judge thoroughly familiar with the lower standard of proof, correctly set out at [26] and [27] in relation to humanitarian protection and article 3 of the ECHR. He argued that the substantive reasoning did not suggest that the wrong standard had in fact been applied, and that it was doubtful whether the claim in any event was capable of falling within the Refugee Convention.

5.              I think the explanation for the misstatement of the standard of proof is a slip in preparation. If the later resolution of the case had been couched in language which unambiguously mentioned the lower standard, the error would not have been material. However, that is not the case, so this is an error on a fundamental point, not corrected in the rest of the decision, such that it cannot stand as a satisfactory explanation to the appellant of why his case has failed.

6.              The decision of the FtT is set aside. None of its findings are to stand, other than as a record of what was said at the hearing.

7.              The nature of the case is such that it is appropriate in terms of section 12(2)(b)(i) of the 2007 Act and of Practice Statement 7.2 to remit the case to the FtT for an entirely fresh hearing.

8.              The member(s) of the FtT chosen to consider the case are not to include Judge Handley.

9.              No anonymity direction has been requested or made.

 

 

 

 

8 May 2017

Upper Tribunal Judge Macleman