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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI- 2024-003304
	First-tier Tribunal Nos: PA/55101/2022 & IA/00389/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 20 ^th of March 2025

 

Before

 

UPPER TRIBUNAL JUDGE RINTOUL

 

Between

 

AE

(ANONYMITY ORDER MADE)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr S McTaggart instructed by James Strawbridge Solicitors

For the Respondent: Ms E Blackburn, Senior Home Office Presenting Officer

 

Heard at Belfast RCJ on 13 March 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 .

DECISION AND REASONS

1.              The appellant appeals with permission against a decision of First-tier Tribunal Judge S Gillespie promulgated on 4 June 2024, dismissing his appeal against a decision of the Secretary of State to refuse his asylum and protection and human rights claims.

2.              The appellant is an Ethiopian national of Somali cultural and ethnic origin. The area from which he come is where the borders of Kenya, Ethiopia and Somalia meet, and is contested. The area is under the control of the dominant Ogaden tribe; the appellant is from the Somali minority.

3.              The outline of the appellant's case is set out in detail in the decision of the First-tier Tribunal but in outline he is caught between two antagonists: the Ethiopian authorities and the Ogaden tribe. His case is that despite leaving Ethiopia in 2008 he is still at risk having been in prison on two periods by the Ethiopian authorities from 2000 for two years when he was tortured and brutally treated, and again for two months in 2008 when he was tortured.

4.              The Secretary of State did not accept the appellant's account observing that there would be a sufficiency of protection and internal relocation for him within Ethiopia.

5.              In the bundle of material prepared for the appeal by the appellant, there was an expert medical report on the appellant's claim to have been a victim of torture from Professor Jason Payne-James. There is also an expert report from Mr John Birchall addressing the country background.

6.              The judge attached little weight to the report from Professor Payne-James. He also rejected the appellant's claim that he is at risk of harm from the Ethiopian authorities and that he was at risk of harm from the Ogaden clan. He drew inferences adverse to the appellant pursuant to Section 8 of the 2004 Act for failing to claim asylum in Ireland en route before travelling on to Belfast and did not accept, despite Mr Birchall's report, that the appellant would be at risk on return to Ethiopia or could not relocate to any area where he would not be at risk.

7.              The appellant sought permission to appeal on the grounds that the judge had erred:

(i)             in making a series of arguably perverse or irrational findings in relation to the report of Professor Payne-James;

(ii)          in failing to take into account the appellant's witness statement and oral evidence when stating that there was "nowhere is any explanation given as to why the Ethiopian authorities had a renewed interest in him in 2008. No context to his second arrest is given." [32];

(iii)        in failing to take into account the appellant's evidence explaining how he was able to travel from Ethiopia to Kenya without trouble;

(iv)        in failing to direct himself to the applicable standard of proof or refer to the relevant authorities;

(v)          in failing to apply the correct standard of proof;

(vi)        in accepting the respondent's position as a starting point thereby applying an insurmountably high standard of proof.

8.              Permission to appeal was granted on paragraphs 2 to 4 and 7 of the grounds.

9.              I heard submissions from both representatives. Mr McTaggart submitted that the judge had failed properly to assess the report of Professor Payne-James and what his role was in documenting and assessing scars under the Istanbul Protocol. He submitted further that there had been no proper reference to the appellant's witness statement and that the references at several points [35], [38] and [43].

10.          Ms Blackburn submitted that the judge's conclusions were open to him, although it might have been better had he not referred to the respondent's conclusions being sustainable.

11.          In approaching the decision of the First-tier Tribunal, I bear in mind the principles set out in Ullah v SSHD [2024] EWCA Civ 201 at [26]. I also bear in mind Volpi v Volpi [2022] EWCA Civ 464 at [2] and HA (Iraq) [2022] UKSC 22 at [72]. The impugned decision must be read sensibly and holistically. When reading the decision, I am entitled to assume that the reader is familiar with the issues involved and arguments advanced. Reasons for the judgment will always be capable of having been better expressed and an appeal court should not subject a judgment to a narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.    

12.          Reading the decision as a whole, it appears that the judge confused the role of Professor Payne-James with that of a country expert. It was not part of Professor Payne-James's role to undertake an assessment of the credibility of the appellant's account and in any event the purpose of the report is not, contrary to what the judge appears to think at [33], put forward to corroborate the appellant's account of more than one detention. It was to document the scars and to reach conclusions as to whether the appellant is a victim of torture. As the report itself states, given the age of the scars it is not possible to discern when they were incurred. Further, the number of detentions or when they occurred is not relevant to deciding whether or not the specific injuries were, as the doctor found, highly consistent with the account given of how the wounds had been inflicted.

13.          It is not, however, necessarily the case that having made such an error that this is material to the outcome. At [33] the judge said this "I am not persuaded by that explanation when Professor Payne James has been proceeding under a misapprehension, and I emphasise it is not merely what he said at the asylum interview but the absence of any mention of a second detention in his PIQ statement".

14.          I accept, however, that credibility was the central issue in this case. As Mr McTaggart submitted, the only evidence that the appellant had brought to the table according to him in Ethiopia was his own evidence supported by the report of Professor Payne-James which concluded that he had been ill-treated and tortured. The judge does not appear to have made any findings on that, or for that matter, other issues. Instead, he defers to the respondent's conclusions finding them sustainable. That is indicative of

15.          Contrary to what the judge wrote at [32] the appellant does at paragraph 15 of his witness statement explain renewed interest in him in 2008 and give context to the second arrest. While I accept, as Ms Blackburn submitted, that the judge appears to have read the witness statement to which he refers in the first line of paragraph 33 he does not appear to have read it with proper care, as otherwise he could not have said that there was no explanation give. Further, he does not appear to have taken into account either the appellant's explanation as to how he was able to travel, instead referring to the point made by the respondent [34].

16.          Turning to the final ground on which permission was granted. It is of concern that at several points in this decision the judge refers to the respondent's conclusions as being "sustainable" rather than making his own findings of fact. That is despite a clear self-direction that it is for him to reach decisions, not simply to review what the Secretary of State has said. While that formulation makes it difficult to ascertain if the correct standard of proof has been applied, it is very much a failure to make proper findings of fact. Whilst it is not pleaded, it is clear from this decision that the judge has failed to make any findings as to whether the appellant has been detained or ill-treated in the past.

17.           Taking all of these factors into account cumulatively, I consider that the decision is unsustainable and must be set aside. The findings as to credibility are unsustainable and accordingly, I am satisfied that the decision must be set aside as a whole and that the correct disposal of the appeal will be for me to remit it to the First-tier for a fresh hearing on all issues.

Notice of decision

(1)           The decision of the First-tier Tribunal involved the making of an error of law and I set it aside.

(2)           I remit the appeal to the First-tier Tribunal for there to be a fresh hearing before a judge other than Judge S Gillespie. For the avoidance of doubt, none of the findings of fact are preserved.

Signed Date: 14 March 2025

Jeremy K H Rintoul

Judge of the Upper Tribunal