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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case Nos: UI-2024-004046 UI-2024-004048 UI-2024-004049 UI-2024-004050
	First-tier Tribunal Nos: PA /59670/2023 PA/59676/2023 PA/59679/2023 PA/59681/2023 LP/02349/2024 LP/02350/2024 LP/02351/2024 LP/02352/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

11 ^th February 2025

 

Before

 

UPPER TRIBUNAL JUDGE GREY

DEPUTY UPPER TRIBUNAL JUDGE MERRIGAN

 

Between

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

 

FHAS

and others

(ANONYMITY ORDER MADE)

Respondents

Representation :

For the Appellant: Ms S. Nwachuku, Senior Home Office Presenting Officer

For the Respondents: Mr A. Adebayo, Solicitor, Hoffmans Solicitors

 

 

Heard at Field House on 27 January 2025

 

Although this is an appeal by the Secretary of State, I shall refer to the parties as they were in the First-tier Tribunal.

 

Order Regarding Anonymity

 

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

 

No-one shall publish or reveal any information, including the name or address of the appellants, likely to lead members of the public to identify the appellants. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

1.             This is an appeal brought by respondent against the decision of First-tier Tribunal Judge Farrelly dated 23 July 2024, in which she allowed the appellants' appeal against the respondent's decision to refuse their protection claim.

2.             The lead appellant (hereinafter 'the appellant') is from Kuwait and claims asylum on the basis that she is an undocumented Bidoon and on the basis of her husband's political activity in Kuwait. Her husband is dependant on her claim. Her three children also claim asylum on the same basis as her. The claims were considered by the respondent under the Family Asylum Claims process and refused by a decision on 23 October 2023.

3.             The decision of Judge Farrelly was set aside by this Tribunal with no findings preserved in a decision by Upper Tribunal Judge Grey dated 11 November 2024 (annexed to this decision). The appeal was listed for a resumed hearing in the Upper Tribunal for the decision to be re-made.

4.             The basis upon which the decision of Judge Farrelly was set aside was due to a failure by the Judge to adequately reason why she had departed from the previous findings of First-tier Tribunal Judge Shergill who dismissed the appellant's husband's appeal in a decision dated 6 November 2019.

5.             In dismissing the appeal Judge Shergill relied on the provisions of Article 1E of the Refugee Convention in relation to the appellant's husband having taken residence in Greece and being granted protection status there. In addition, or in the alternative, Judge Shergill found that the appellant's husband could not be a refugee under Article 1A(2) because he was not outside the country of his former habitual residence as a result of Refugee Convention grounds because he was formerly habitually resident in Greece and there was no protection claim made in relation to Greece, his appeal was only ever about Kuwait.

6.             It was argued on behalf of the appellant at the error of law hearing, and is repeated in the appellant's skeleton argument filed in relation to the re-making hearing, that the Devaseelan principles do not apply to the appellant in respect of the findings of Judge Shergill because the decision concerned her husband's appeal.

7.             For the reasons set out in the error of law decision at [20] and [21] and applying AL (Albania) v SSHD [2019] EWCA Civ 950, the previous judicial findings in the husband's appeal must undoubtedly be the starting point in relation to the appellant's appeal because the asylum claims of this married couple arise out of the same factual matrix. Just as the appellant was dependant on her husband's asylum claim, her husband is now dependent on her asylum claim. The claims are based on the same claimed factual circumstances.

8.             Further to directions issued at the error of law hearing the following documents were filed and served by the appellants:

                                i.             A skeleton argument.

                             ii.              A supplementary bundle comprising 63 pages.

                           iii.             The decision of First-tier Tribunal Judge Curtis dated 19 April 2021.

                           iv.             The decision of Upper Tribunal Judge Macleman dated 12 November 2020 (provided at the Tribunal's request upon receipt of item iii. above).

9.             The appellants' supplementary bundle includes an additional witness statement from the appellant in which she now accepts (for the first time in these proceedings) that she was indeed granted refugee status in Greece. She claims that her refugee status in Greece has now expired. In addition, the bundle includes a statement from the appellant's brother-in-law. He states that he arrived in the UK in September 2019 and successfully claimed asylum here, after previously being granted refugee status in Greece in October 2017.

10.         We sought representations from the parties regarding the fact the decision of Judge Curtis had not been produced at previous hearings, either in the First-tier Tribunal or Upper Tribunal. The decision had been filed with the Tribunal by the appellants on 23 January 2025 without explanation. It was noted that the appellants' skeleton argument stated at [11]:

"The interesting point now is that the Upper Tribunal found that Judge Shergill determination (sic) of 2019 is erroneous, set it aside and remitted the appeal to the First tier tribunal for a de novo hearing before Immigration Judge Curtis."

11.         On noting the content of the skeleton argument the Tribunal issued directions for the appellants to file and serve a copy of the Upper Tribunal decision setting aside the decision of Judge Shergill by close of business on Friday 24 January 2024. The appellants' representatives duly filed the decision of Upper Tribunal Judge Macleman dated 12 November 2020.

12.         Although the Judge's note of proceedings at the error of law hearing on 5 November 2024 indicate that the Tribunal was advised that the decision of Judge Shergill had not been appealed, it is now apparent from sight of the decisions of Judge Macleman and Judge Curtis that this is not correct.

Decision of Upper Tribunal Judge Macleman dated 12 November 2020

13.         The appellant's husband sought permission to appeal the decision of Judge Shergill. Permission was granted by the First-tier Tribunal. Judge Macleman determined the matter on the papers without a hearing after having provided the Secretary of State with an opportunity to make representations on the asserted error of law, which she declined to do. The decision of Judge Shergill was set aside with no findings preserved.

14.         In relation to the husband's asylum claim the Secretary of State had not made a declaration of inadmissibility under paragraph 345A of the Immigration Rules on the basis that another EU state had granted the husband refugee status. The Secretary of State had engaged with and substantively considered the claim. Judge Macleman found that refusal of the husband's asylum claim gave rise to a right of appeal under section 82 NIAA 2002 and Judge Shergill had therefore erred in finding that the appellant's husband could not claim asylum in the UK because of his grant of refugee status in Greece and in failing to substantively consider the claim. The appeal was remitted for a de novo hearing before another judge in the First-tier Tribunal.

Decision of First-tier Tribunal Judge Curtis dated 19 April 2021

15.         The husband's appeal came before Judge Curtis at a hearing on 22 March 2021. In dismissing the appeal Judge Curtis found that the appellant's husband had failed to establish to the lower standard of proof that he was an undocumented Bidoon. Key findings which resulted in this conclusion included the following:

                                i.             The husband had lied about his journey from Kuwait to the UK and had only confirmed the truth of his migratory journey when the respondent had gradually disclosed the information held about his presence and asylum claims in other European countries prior to his arrival in the UK. Eurodac documents confirmed that the husband was in Hungary in 2015, in Germany in 2016, in Turkey in 2016/2017, and in Greece on two occasions including in 2018 when he and his family were granted refugee status. He had also been in or travelled through Macedonia, Serbia, Austria and France at various points. He gave the Greek authorities a false name with a false date of birth. He had been refused asylum in Germany.

                             ii.              Having repeatedly lied at interview about claiming asylum in other countries it was "difficult to avoid drawing the conclusion that rather than taking refuge in one of the various safe countries through which the [husband] travelled, he was determined to travel to London because that is where he "wanted" to go" [36] .

                           iii.             The husband failed to disclose his attendance at a political demonstration in Kuwait at his screening interview. He had failed to establish that he had attended a demonstration and is wanted by the authorities in Kuwait as claimed [38] to [41]. The husband and a witness gave inconsistent evidence about their attendance at a demonstration [62].

                           iv.             Since leaving Kuwait in 2015 the husband had led a peripatetic lifestyle and had access to significant sums of money to facilitate his journey around Europe [69].

                              v.             In view the "unwavering altruism" of a family friend in Kuwait who, it was claimed, had provided the family with ongoing financial assistance, passports and other support and assistance, it should have been relatively easy to obtain something in writing from this friend to confirm the husband's undocumented status and the support it was claimed he had provided but no such evidence had been adduced [42].

                           vi.             The husband had provided an inconsistent account about what money and support he had received over the years and from whom, and how he had managed to save money in Greece when he claimed he left because he was not receiving any support there.

                         vii.              The husband's claim of financial support from his family in Kuwait, and the extent of that support, was implausible if they were Bidoons with limited employment opportunities in Kuwait.

                       viii.             The husband did not adequately explain how his wife was able to access medical treatment and undergo an operation in hospital in Kuwait and how his family were able to rent property in Kuwait without appropriate documentation [53] [54].

                            ix.             The husband had given an inconsistent account of whether his father had registered for a 'green card' and any documentation he had obtained. The husband had a lack of understanding and provided a lack of detail regarding the process for obtaining a green card in Kuwait which was not credible in light of his claim to be an undocumented Bidoon [55][56].

                              x.             The husband gave an inconsistent account about his employment in Kuwait.

                            xi.             The husband was well connected to people involved in the facilitation of illegal immigration and had been in possession of false passports as had his wife [48].

                         xii.             The husband appellant has a history of lying to the authorities.

16.         In addition, at [59] to [61] of the decision, the Judge noted various adverse credibility findings in relation to the husband's witnesses including a finding with detailed reasoning that the husband and witnesses had discussed their evidence during the lunch break mid-hearing despite the Judge's warning not to do so.

Error of law decision

17.         Undoubtedly the decision of Judge Curtis should have been before Judge Farrelly at the appellant's hearing and it should have been before this Tribunal at the error of law hearing. The Tribunal sought information from the representatives as to why this situation had arisen.

18.         In initial discussions Mr Adebayo had referred to "tactical reasons" for the decision not being before the Tribunal previously and stated that he was focussed on the appellant who was his client rather than her husband. He stated that the decision was "of no assistance to my client" and "If the husband is found not to be credible, there's nothing that's going to be helpful to my client". He stated that he had first received instructions from the appellant in September 2022 and would have received the decision of Judge Curtis then.

19.         It was then pointed out to Mr Adebayo that the decision of Judge Curtis should have been before the First-tier Tribunal and Upper Tribunal when it was apparent that the Tribunals were taking the decision of Judge Shergill as the starting point in the appellant's appeal. When directly questioned on why the decision was not before the Tribunal previously, Mr Adebayo stated that he had only "discovered" and read the decision a few days prior when preparing the appellants' skeleton argument for this hearing. It is difficult to reconcile this explanation with Mr Adebayo's previous references to tactical reasons and adverse credibility findings regarding the husband.

20.         On further questioning regarding this apparent discrepancy, Mr Adebayo was insistent that he had not read Judge Curtis's decision until a few days before because he was focussing only on his client rather than her husband. However, it would appear to us that on receipt of instructions from the appellant, a legal adviser would want to inform themselves at the outset as to why their client's husband's appeal had been unsuccessful, given that the client was dependant upon her husband's asylum previously and he was now dependant on hers. Moreover, the basis of the appellant's claim is in part due to the claim that her husband was wanted by the authorities in Kuwait having attend a political demonstration.

21.         The Tribunal sought representations from Ms Nwachuku concerning the respondent's failure to identify that the decision of Judge Shergill relied upon by the respondent in the proceedings in the First-tier Tribunal had been set aside. She apologised to the Tribunal and explained that the documents in relation to the appellant's husband's appeal had been stored in Manchester and she had to request them for the hearing today. When Ms Nwachuku received the documents she stated that it had not been apparent from them that the decision of Judge Shergill had been set aside and she only became aware of it when it was provided by the appellant's representative.

22.         The Tribunal noted that the decision of Judge Shergill at [3] recorded the husband's date of birth as 5 April 1983. However, the decision of Judge Curtis recorded the date of birth as 5 April 1989. It is also noted at [22] of Judge Curtis's decision that the appellant's husband gave the Greek authorities a false name and date of birth and his wife had also provided a false date of birth. It appears possible that incorrect data regarding this family, such as different dates of birth, may have contributed to some of the issues in accessing all relevant information. This also may in part explain why the refusal decision in this appeal makes no reference to the grant of refugee status in Greece.

23.         It is of significant concern to the Tribunal that the decision of Judge Curtis was not disclosed until two working days before the re-making hearing and over two months since the error of law hearing and that it was not before Judge Farrelly. It is difficult to escape the conclusion that a possible reason why the existence of the decision was not disclosed earlier was because of the multiple adverse credibility findings recorded by Judge Curtis.

24.         Mr Adebayo sought to re-visit the error of law decision of this Tribunal in light of the decision of Judge Curtis, boldly asserting that the decision of Judge Farrelly should now stand as correct given the emergence of Judge Curtis's decision.

25.         We cannot accept this submission. The decision of Judge Farrelly was set aside on the basis of inadequate reasoning for departing from the previous judicial findings of Judge Shergill in relation to the refugee status of the appellant and her family in Greece. As set out above, it is now clear that Judge Shergill's decision had been set aside and Judge Farrelly was not aware of this. If the decision of Judge Curtis had been disclosed to Judge Farrelly she would have been required to take the findings of Judge Curtis as her starting point, and following AL (Albania) would have been required to consider if there was a very good reason for departing from these findings.

26.         As a result of the Judge Farrelly's ignorance of the decision of Judge Curtis (through no fault of hers) her decision was made on the basis of a 'mistake in fact' which undermined the fairness of proceedings E&R v Secretary of State for the Home Department [2004] EWCA Civ 49. The mistake is unarguably material and amounts to an error of law.

27.         This Tribunal's error of law decision was also made in ignorance of the decision of Judge Curtis. However, we confirm the decision to set aside the decision of Judge Farrelly in its entirety. If the existence of the decision of Judge Curtis had been before this Tribunal at the error of law hearing the decision of Judge Farrelly would have still been set aside, albeit on a different basis. The matters concerning the emergence of the decision of Judge Curtis are therefore not material to the outcome of the error of law decision which shall stand together with the supplementary reasoning in this decision.

Disposal of the appeal

28.         With some reluctance, having heard submission from both representatives and given the unusual circumstances of this case, we are of the view that this appeal should now be remitted to the First-tier Tribunal for a de novo hearing before a judge other than Judge Farrelly, an outcome which could have been potentially avoided with greater transparency and/or diligence previously. At the error of law hearing it had been determined that the matter would be retained in the Upper Tribunal on the basis that the re-making of the decision would involve limited fact-finding concerning the appellant's refugee status in Greece. In light of the decision of Judge Curtis there is potentially significant further fact-finding required.

29.         As discussed at the hearing, in advance of a de novo hearing in First-tier Tribunal and in furtherance of the Overriding Objective the respondent should conduct a thorough review of her position in this appeal to determine whether the decision under appeal should be maintained in light of the following matters:

                                i.             The findings of Judge Curtis;

                             ii.              The grant of refugee status in Greece to the appellant and her family; and

                           iii.             The grant of refugee status in the UK to members of the appellant's husband's family.

30.         Ms Nwachuku indicated the respondent's position on the grant of refugee status in the UK to the members of the appellant's husband's family was set out in the respondent's review document dated 14 March 2024. It states that "although it is accepted that they have been granted protection status, the facts and basis of their asylum claim is unknown and no documentary evidence has been adduced to prove that they were all claiming on the same material facts as the A and her family.". However, the respondent will have access to the asylum minutes supporting the decisions to grant refugee status which are not available to the appellant and which should provide the respondent with clarity on this issue.

Directions

1.       No later than 7 days from the date of receipt of this decision the Mr Adebayo of Hoffmans Solicitors shall provide a written statement with a statement of truth addressing the following matters (marked for the attention of UTJ Grey):

a.       When his firm first took possession of a copy of the decision of Judge Curtis;

b.       When the person with conduct of this matter first read the decision of Judge Curtis; and

c.        Details of the name of the firm and person with conduct of the appellant's husband's asylum claim and appeal.

2. No later than 28 days from the date of receipt of this decision the respondent shall file with the First-tier Tribunal and serve upon the appellant a position statement addressing the matters referred to at [29] above.

Notice of Decision

The appeal is to be remitted to the First-tier Tribunal for a de novo hearing to be heard by a judge other than Judge Farrelly.

Sarah Grey

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

3 February 2025

A black and white emblem with lions and unicorns Description automatically generated

 

IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case Nos: UI- 2024-004046 UI-2024-004048 UI-2024-004049 UI-2024-004050
	First-tier Tribunal Nos: PA /59670/2023 PA/59676/2023 PA/59679/2023 PA/59681/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

13 November 2024

 

Before

 

UPPER TRIBUNAL JUDGE GREY

 

Between

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

 

FHAS

and others

(ANONYMITY ORDER MADE)

Respondents

Representation :

For the Appellant: Ms S Nwachuku, Senior Home Office Presenting Officer

For the Respondents: Ms R Rashmi, Counsel instructed by Hoffmans Solicitors

 

 

Heard at Field House on 5 November 2024

 

Although this is an appeal by the Secretary of State, I shall refer to the parties as they were in the First-tier Tribunal.

 

 

Order Regarding Anonymity

 

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

 

No-one shall publish or reveal any information, including the name or address of the appellants, likely to lead members of the public to identify the appellants. Failure to comply with this order could amount to a contempt of court .

DECISION AND REASONS

1.             This is an appeal brought by respondent against the decision of First-tier Tribunal Judge Farrelly ('the Judge') dated 23 July 2024, in which she allowed the appellants' appeal against the respondent's decision to refuse their protection claim.

Factual Background

2.             The lead appellant (hereinafter 'the appellant') is a Kuwaiti citizen who claims asylum in the UK on the basis that she is an undocumented Bidoon and on the basis of her husband's political activity in Kuwait. Her husband is dependant on her claim. Her three children also claim asylum on the same basis as her. The claims were considered by the respondent under the Family Asylum Claims process and refused by a decision on 23 October 2023.

3.             The appellant's husband previously claimed asylum in the UK with the appellant dependent upon his claim. The husband's claim was refused by the respondent and his appeal against that refusal was dismissed by Judge Shergill in a decision promulgated on 7 November 2019. That decision was not appealed.

4.             The appellant and her children brought an asylum claim on 4 January 2022 which was refused by the respondent on 23 October 2023. The refusal decision states that it was not accepted that the appellant was an undocumented Bidoon and refers to significant inconsistencies between the account of the appellant and that which her husband provided in his asylum claim. The decision refers to the dismissal of the appellant's husband's appeal. However, no reference is made in the refusal decision to the specific findings of Judge Shergill, including findings that the family's country of habitual residence prior to arriving in the UK was Greece and the appellant's husband had been recognised as a refugee by the Greek authorities.

The decision of Judge Shergill, 6 November 2019

5.             At [8] of Judge Shergill's decision it was noted that the respondent produced a Eurodac document at the hearing on 5 September 2019 which Judge Shergill found confirmed the appellant's husband had been granted international protection status in Greece. He also noted that the appellant's husband had stated in evidence that he had been granted 'political asylum' in Greece.

6.             Further to Judge Shergill's finding that the appellant's husband had been granted international protection in Greece, he proceeded at [9] of the decision to set out in detail the legal basis upon which the appellant's husband could not claim asylum in the United Kingdom because of that grant of international protection, and on the basis of which he dismissed the appeal.

7.             Judge Shergill found that the appellant's husband (and the appellant) had been resident in Greece from October 2017 until May 2019 before coming to the United Kingdom. He found that Greece was a country in which they had taken residence and/or was their country of former habitual residence.

8.             In dismissing the appeal Judge Shergill relied on the provisions of Article 1E of the Refugee Convention in relation to the appellant's husband having "taken residence" in Greece and being granted protection status there.

9.             In addition, or in the alternative, he found that the appellant's husband could not be a refugee under Article 1A(2) because even if he remained someone without nationality, he was not outside the country of his former habitual residence as a result of Refugee Convention grounds because he was formerly habitually resident in Greece and there was no protection claim made about Greece, his appeal was only ever about Kuwait.

10.         At [11] of the his decision Judge Shergill states "As the appellant has been granted international protection, I take the evidence at its highest .....that the appellant was a stateless undocumented Bidoon". At [13] Judge Shergill found that the appellant's husband had failed to discharge the obligation on him to show he could not obtain his status documentation or otherwise rely on the status he was granted by the Greeks. Judge Shergill found that the appellant's husband could reasonably be expected to have approached the Greek authorities in the UK to show that he had no ongoing legal status of international protection, nationality, current residence or 'former habitual residence' that could be relied upon in Greece if that were the case.

Judge Farrelly's decision under appeal

11.         The Judge allowed the appellant's appeal finding that the appellant had demonstrated that she and her family are undocumented and were entitled to protection "Given the way the Kuwait State treat people without documentation" - [22].

12.         At [16] of the decision the Judge states that she applied the " Devaseelan notion" and adopts Judge Shergill's finding that the appellant's husband is an undocumented Bidoon, and that the appellant and their children are also undocumented.

13.         At [27] the Judge found that the appellant and her husband were treated as asylum seekers in Greece and were given some documentation. The Judge refers to the approach adopted by the respondent in the refusal decision in considering the appellant's asylum claim on the basis that her country of former habitual residence was Kuwait. The Judge found that the appellant and her family are outside of this country owing to fear of persecution.

14.         At [28], in relation to the appellant's status in Greece, the Judge states that there is a lack of evidence as to what Greece actually conferred and refers to the fact that the "Euro Dat" document was not before her. The Judge states that there is nothing to indicate that the appellant and her family have Greek nationality and whether their country of former habitual residence is Greece is "contradicted by the refusal decision". Further, the Judge refers to the failure of the respondent to make any enquiries of the Greek authorities citing MW (Nationality: Art 4 QD; duty to substantiate) Eritrea [2016] UKUT 453 (IAC).

15.         In allowing the appeal the Judge concludes that the although she accepts on balance that the appellant and her family were "given some documentation" in Greece, she finds that it is not established that they were given protection at such a level as to exclude them from seeking protection here.

The Respondent's grounds of appeal

16.         The respondent appeals of the basis that the appellant's appeal was brought on identical facts to that of her husband when she was dependant on his claim and the Judge erred in failing to have regard to the previous judicial findings of the appellant's husband's appeal. The respondent asserts in the grounds that it was incumbent upon the Judge to give reasons for why she departed from the findings of Judge Shergill that the family were habitually resident in Greece and were refugees in that country, and that her failure to do so was a material error of law. The respondent relies on the case of AL (Albania) v SSHD [2019] EWCA Civ 950 (' AL') in relation to the application of the Devaseelan guidelines where a claim is brought by a different party, such as a family member, arising out of the same factual matrix.

17.         The respondent accepts in the grounds that the findings of Judge Shergill were not specifically referred to in the refusal decision but states that the respondent's review provided in the appeal process was clear that matters in relation to Judge Shergill's findings were "in contention", as did the respondent's representative at the hearing.

18.         Permission to appeal was granted by First-tier Tribunal Judge Kudhail.

Analysis and decision

19.         The Judge correctly states at [17] of the decision that Devaseelan is concerned with factual findings rather than legal conclusions of a previous tribunal. However, it is noted that the Judge does not indicate at any stage in the decision that she did not agree with Judge Shergill's legal analysis in respect of the appellant's husband's appeal. There were no submissions before me that Judge Shergill's legal analysis was incorrect or that there had been any material change in the law since the appellant's husband's appeal was determined. There was no challenge by the appellant's husband to the decision of Judge Shergill.

20.         It was not argued before me that the appellant's asylum claim arises out of a different factual matrix to her husband's claim in 2019, upon which she was dependent. This is not a case where there is only a partial overlap between the appellant's claim and that of her husband. I accept the respondent's submissions that the claims are essentially identical. In these circumstances, according to the AL, the guidelines from Devaseelan v SSHD [2002] UKIAT 702 apply, which state at [32] that a previous judicial determination should always be the starting point in a subsequent appeal and be treated as an authoritative assessment of the appellant's status at the time it was made. The guidelines go on to set out matters which may cause a subsequent adjudicator to depart from the previous judicial findings. On reading the decision under appeal it does not appear to have been argued that any of the circumstances set out at [32] of Devaseelan, such as facts happening after the first adjudicator's determination, which could cause a subsequent adjudicator to depart from the previous judicial findings arose in respect of the appellant.

21.         In AL Lady Justice Davies states at [23] that the Devaseelan guidelines apply in relation to earlier findings of fact made in a determination relating to a different party such as a family member, but arising out of the same factual matrix and that those guidelines begin with the premise that the first tribunal's determination should be the starting point. At [25] she states "Further, following the Devaseelan guidelines, not only is the earlier determination the starting point, it should be followed unless there is a very good reason not to do so.".

22.         The starting point for the Judge in determining the appellant's appeal was thus the findings of Judge Shergill that the appellant's family's country of former habitual residence before arriving in the UK was Greece and that the appellant's husband had been granted protection in Greece. It was not suggested to me that the appellant would not have been granted internation protection if her husband was or otherwise would not have benefited from any international protection conferred on her husband.

23.         The reasons provided by the Judge for departing from the finding of Judge Shergill are limited. She refers to the position seemingly taken by the respondent in the refusal decision, the fact that she did not have the Eurodac document before her, and the respondent's failure to conduct enquiries with the Greek authorities.

24.         The respondent's refusal decision was very brief, particularly for an asylum claim. The focus of the respondent's refusal was in respect of the credibility of the appellant's claim to be an undocumented Bidoon. Although there is a reference to the dismissal of her husband's asylum appeal in the decision there is no reference to the specific findings of Judge Shergill. Ms Nwachuku admitted that there were deficiencies in the refusal decision. However, contrary to what the Judge states at [23] of the decision, the respondent's review dated 14 March 2024 (nearly three months prior to the hearing) does refer to the decision of Judge Shergill and his finding that the appellant's husband had been granted international protection status in Greece.

25.         There was no suggestion that this was not a matter before the Judge at the hearing and the Judge correctly turned her mind to this matter in determining the appeal. Where I find the Judge has erred is in failing to provide adequate reasons for departing from the findings of Judge Shergill in relation to the protection status of the appellant and her family and their place of former habitual residence prior to their arrival in the UK. In fact, in adopting the finding of Judge Shergill that the appellant's husband is an undocumented Bidoon at [16] of the decision, it could be argued that the Judge took this finding out of the context of Judge Shergill's reasoning which stated "As the appellant has been granted international protection, I take the evidence at its highest for the purposes of disposing of the appeal that the appellant was a stateless undocumented Bidoon.".

26.         Although the Judge notes at [23] that the refusal decision in relation to the appellant's husband's asylum claim of June 2019 states that the respondent accepts that he is a habitual resident of Kuwait, this decision pre-dates the findings of Judge Shergill from November 2019 that his country of former habitual residence was Greece. This was the starting point for the Judge in the appellant's appeal. The refusal decision in the appellant's appeal is silent on this issue. There is no reference to any fresh evidence before the Judge which would cause her to depart from Judge Shergill's findings on this matter. The Judge records that in oral evidence the appellant and her husband stated that they had recently been to the Greek Embassy to get documents but did not receive anything. This Judge does not state whether this evidence was accepted, or if it was, on what basis.

27.         It appears from [25] and [28] that a significant factor in the Judge departing from the previous finding of Judge Shergill that the appellant's husband had been granted international protection in Greece was that the Eurodac document before Judge Shergill had not been produced in the appellant's appeal. Whilst I find that it was unfortunate that this document had not been produced in these proceedings, in circumstances when it is clear and undisputed that the previous Judge had sight of the evidence in question and reached unequivocal findings on what that evidence established, I find that it was not open to the Judge to depart from Judge Shergill's findings on this basis, without more. I am not persuaded that this alone is capable of amounting to a "very good reason" for departing from the previous judicial findings. Alternatively, I find that the Judge has provided inadequate reasoning to enable the respondent and this Tribunal to understand why she considered this to amount to a very good reason for departing from those previous findings.

28.         The Judge refers at [28] to a failure by the respondent to make enquiries of the Greek Embassy and refers to MW (Nationality; Art 4 QD; duty to substantiate) Eritrea [2016] UKUT 453 (IAC) (' MW'). However, in circumstances where the respondent had previously obtained and produced documentation before the Tribunal in 2019 which was accepted by a judge as establishing the refugee status of the appellant's husband in Greece, I am unpersuaded that the respondent is under a duty to carry out further enquiries in respect of this matter. On a careful reading of MW I can find no support for the submission that the respondent was under a duty to make enquiries of the Greek authorities in circumstances such as these; essentially to rebut a previous judicial finding that someone has been granted international protection in another country.

29.         Although I was not addressed on the majority of the specific issues that were addressed in Ms Rashmi's skeleton argument which was handed to me during the hearing, I have considered this document. It is submitted that the Judge "acknowledges the starting point as per Devaseelan but acted appropriately by considering new, individualised factors that were not present in the 2019 decision by Judge Shergill.". The skeleton refers to the best interests of the appellant's children, the lack of adequate protection for refugees in Greece, and the length of the appellant's residence in the UK. Upon careful consideration of the decision and the evidence and documentation before the Judge, including the appellant's appeal skeleton argument and respondent's review, I find these were not matters before the Judge and upon which she did not, and was not required to, adjudicate.

30.         In conclusion, for the reasons set out above, I find that the Judge made a material error of law in failing to adequately reason why she departed from the previous findings of Judge Shergill in the appellant's husband's appeal.

31.         In view of the deficiencies noted above in respect of the respondent's refusal decision, it is considered in the interests of justice to resume the hearing for a re-making of the decision. Due to the limited nature of the evidence required to undertake the re-making, the matter will remain to be determined by the Upper Tribunal rather than remitted to the First-tier Tribunal. The case will therefore be listed for a resumed hearing in the Upper Tribunal for the decision to be re-made, on a date to be notified to the parties.

Directions

No later than 7 days before the date of the resumed hearing:

1.       Should either party seek to rely upon any further evidence not previously before the First-tier Tribunal, that evidence shall be filed with the Upper Tribunal and served upon the other party in an index, consolidated bundle together with any relevant application under rule 15(2).

2.       Should the appellant require an interpreter for the hearing, a request shall be made to the Upper Tribunal in that regard identifying the language and dialect required for any interpreter.

Notice of Decision

The Secretary of State's appeal is allowed. The decision of Judge Farrelly is set aside. The decision will be re-made at a resumed hearing.

Sarah Grey

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

11 November 2024