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

A black background with a black square Description automatically generated with medium confidence

 

IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2022-006099
	First-tier Tribunal No: PA/00082/2021

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

10 ^th February 2025

 

Before

 

UPPER TRIBUNAL JUDGE BLUNDELL

and

UPPER TRIBUNAL JUDGE BULPITT

 

Between

 

ASDO

(ANONYMITY ORDER MADE)

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Ms Atas, Counsel instructed by Parker Rhodes Hickmotts Solicitors

For the Respondent: Mr Parvar, Senior Home Office Presenting Officer

 

Heard at Field House on 15 January 2025

 

Order Regarding Anonymity

 

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.

 

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court. We make this order because the appellant contends that she is in need of international protection and her safety outweighs the presumption in favour of open justice.

DECISION AND REASONS

1.              This is the appellant's appeal against the decision of First-tier Tribunal Judge Scott-Baker (the Judge) promulgated on 26 August 2022 in which the Judge dismissed the appellant's appeal against the respondent's decision to refuse her protection claim. At the conclusion of the appeal hearing, we announced our view that the Judge's decision contained an error of law such that it must be set aside and the appeal remitted to the First-tier Tribunal for a fresh hearing. In this decision we provide our reasons for that conclusion.

Background

2.              The appellant is 50-years-old. On 17 September 2019 she was granted a visa permitting her to visit the United Kingdom. When she arrived in the United Kingdom on 4 October 2019 however she was refused leave to enter by Border Officers who raised concerns about her being trafficked into the country. The same day the appellant claimed asylum asserting that she feared her husband who does not share her support for "the Kanu Movement". She was granted immigration bail while her claim was considered and she has been living in the United Kingdom subject to that bail since.

3.              The appellant was interviewed about her claim on 17 March 2020 and explained that she is from the Igbo tribe, but her husband is Yoruba. She stated that she feared persecution by Nigerian state authorities and ill-treatment by her husband because of her support for Biafran independence through the Kanu Movement and her involvement with the Indigenous People of Biafra (IPOB) which has been declared a terrorist organisation in Nigeria. Her claim was refused by the respondent on 17 December 2020 who concluded that the appellant was not a member of IPOB either in Nigeria or the United Kingdom and that she could safely return to Nigeria without facing ill-treatment from the state authorities or from her husband. The appellant appealed against that decision to the First-tier Tribunal.

4.              The Judge heard the appellant's appeal on 30 June 2022. Documentary evidence was served and the Judge heard oral evidence from the appellant and her friend Cordelia Eze as well as submissions on behalf of the respondent and appellant. The appellant's case included an assertion that she was at further risk of persecution because of her involvement while in the United Kingdom with the Mitcham branch of IPOB.

5.              In her very thorough decision promulgated on 26 August 2022, the Judge found that the appellant had not been involved with IPOB while in Nigeria and that she had not suffered ill-treatment from her husband as a result. The Judge accepted that the appellant was a member of IPOB in the United Kingdom, that she has attended meetings and demonstrations organised by IPOB and that there are photographs of the appellant doing so on Facebook and Youtube. The Judge found however that this will not lead to her receiving adverse attention from the Nigerian authorities. The Judge further found that the appellant does not sincerely hold political views and therefore that she would not be at risk on return to Nigeria. In all these circumstances the Judge dismissed the appellant's protection appeal. The Judge went on to dismiss the appellant's human rights appeal, finding that the appellant would not face very significant obstacles to integration on return to Nigeria and that her removal to Nigeria would involve a proportionate interference with the appellant's private life.

The appeal to the Upper Tribunal

6.              Having been refused permission by the First-tier Tribunal, the appellant renewed an application for permission to appeal against the Judge's decision to this Tribunal. There was unfortunate lengthy delay before that application was considered but eventually permission was granted, and the appeal was listed before us on 26 July 2024.

7.              The appellant's grounds of appeal focus on the judge's conclusions regarding the appellant's activity in the United Kingdom and the risk to which it might expose the appellant on return to Nigeria. At [16] of the renewed grounds of appeal, it is suggested by Ms Atas that the judge erred in concluding that the appellant was not sincere in her sur place activity because it had never been suggested to the appellant that her activities were in bad faith. At the hearing on 26 July 2024, we asked whether it was agreed between the parties that it had not been suggested to the appellant during the hearing before the Judge that her activities were in bad faith. The parties stated that neither had a contemporaneous record of the evidence before the Judge and that the best evidence on the point would be the recording of the hearing. They applied jointly for the hearing to be adjourned so that the recording could be obtained and listened to. We agreed with that course of action and accordingly granted an adjournment for that purpose.

8.              A listening appointment having taken place, and the recording of the hearing before the Judge having been heard by both parties, a rule 24 response was submitted by the respondent in which it is accepted that the matter of whether the appellant was sincere in her support of IPOB or whether her activities with IPOB in the United Kingdom were in bad faith was not put to the appellant during the hearing and that in these circumstances there was a material error of law in the Judge's decision. Accordingly, the respondent did not oppose this ground of appeal. It was in these circumstances that the hearing was reconvened before us.

Our Decision

9.              We agree with the respondent's concession that the failure to put the sincerity or otherwise of her activities with IPOB in the United Kingdom to the appellant during the hearing and before an adverse finding was made, amounted to a material error of law. A party is 'required to challenge in cross-examination the evidence of any witness of the opposing party if he wishes to submit ... that the evidence should not be accepted on that point': Tui v Griffiths [2023] UKSC 48; [2023] 3 WLR 1204, at [43], endorsing that statement in the 20th Edition of Phipson on Evidence. The assertion that the appellant's support for IPOB was insincere and her activities on their behalf were in bad faith was not put to the appellant who was unfairly deprived of an opportunity to respond as a result. Indeed it would appear from the Judge's summary of the submissions made by the respondent at [90] that those submissions did not address the question of the appellant's sincerity when engaging in those activities at all. In these circumstances it was procedurally unfair for the Judge to reach a conclusion at [118] that was adverse to the appellant.

10.          We find that this procedural unfairness requires that the Judge's decision be set aside. The appellant's asserted activities on behalf of IPOB whilst in the United Kingdom is now the bedrock of her claim and a lawful decision about the claim cannot be reached without fair consideration of those claimed activities, including whether they were undertaken because of a sincere support for IPOB and their aims, or "in bad faith" to support an asylum claim. A fresh hearing of this appeal is therefore required to enable this issue to be properly and fairly considered.

11.          At one point Ms Atas asked us to preserve findings that the Judge made about the extent of the appellant's activities in the United Kingdom. In our judgment however it is not possible to distinguish those findings about the extent of the activities from the Judge's unfair finding about the appellant's insincerity when engaging in them, or indeed from other findings adverse to the appellant, such as the finding at [120] that the activities will not have been of interest to the Nigerian authorities. Applying the guidance in AB (preserved FtT findings;  Wisniewski principles) Iraq [2020] UKUT 268 (IAC) ; [2020] Imm AR 1451, we consider that it would be artificial to attempt to draw a bright line around the favourable findings whilst at the same time requiring an assessment of the other aspects of the appellant's credibility. In our view none of the Judge's findings about the appellant's political activities in the United Kingdom can be preserved, therefore, and the circumstances require a fresh holistic consideration of the appellant's protection claim "de novo".

12.          Having heard submissions from both Ms Atas and Mr Parvar we were also satisfied that such a re-hearing of the appeal should take place in the First-tier Tribunal. The implication of our conclusion about the error in the Judge's decision is that there has not been a fair and just hearing of the appellant's appeal, and in those circumstances we do not consider it appropriate to deprive the appellant of the opportunity of a second appeal. In reaching this conclusion we do have in mind the considerable delay that there has already been in dealing with this asylum claim which is now more than five years old. As we pointed out in the hearing however, that is a feature which cuts both ways since the delay means that there is now further evidence to be considered and extensive fact finding required, something which is better suited to the First-tier Tribunal.

13.          Accordingly, we set aside the Judge's decision and remit the matter for a re-hearing at Taylor House. We note that the appellant is now represented and Ms Atas's submission that the appellant will want to prepare and serve an updated bundle of evidence before that hearing. Given the age of the appeal we observe that this should be done without delay.

Notice of Decision

The decision of First-tier Tribunal Judge Scott-Baker involved an error of law and is set aside.

The appeal will be listed for a fresh hearing in the First-tier Tribunal before a Judge other than Judge Scott-Baker

 

 

Luke Bulpitt

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

3 February 2025