ON APPEAL FROM UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
[Appeal No: AA/08297/2010]
Strand, London, WC2A 2LL
B e f o r e :
(SIR NICHOLAS WALL)
LORD JUSTICE RIMER
LORD JUSTICE JACKSON
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Mr Colin Thomann (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.
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Lord Justice Jackson:
Part 1, Introduction
Part 2, The Facts
Part 3, The Appeal to the Court of Appeal
Part 4, Decision.
Part 1. Introduction
"(1)Subsection (2) applies if the Upper Tribunal, in deciding an appeal under section 11, finds that the making of the decision concerned involved the making of an error on a point of law.
(2)The Upper Tribunaló
(a)may (but need not) set aside the decision of the First-tier Tribunal, and
(b)if it does, must eitheró
(i)remit the case to the First-tier Tribunal with directions for its reconsideration, or
(ii)re-make the decision.
(4)In acting under subsection (2)(b)(ii), the Upper Tribunaló
(a)may make any decision which the First-tier Tribunal could make if the First-tier Tribunal were re-making the decision, and
(b)may make such findings of fact as it considers appropriate."
Part 2. The Facts.
"27. It therefore appears that the Immigration Judge found that he was First Secretary and Mr Ngongo was President of his branch based on a document produced by either the Respondent or Mr Ngongo and their oral evidence albeit the Judge appeared to reject their accounts of what was said to have happened in the DRC.
28. Having regard to those factors and the Judge's assessment on credibility I am not satisfied the Respondent did hold the position claimed but whilst I accept the Appellant's submission on this point I do not agree it shows a material error when I consider whether the Respondent would be at risk because I do not see how this information would necessarily have come to the attention of the 'DRC spies'.
38. Having considered all of the above factors I have concluded that although the Immigration Judge carefully considered all of the factors there was a material error because:
a. The Immigration Judge (like his predecessor) found the Respondent lacked credibility;
b. He rejected evidence from both the Respondent and his witness about activities of APARECO in the DRC;
c. There was no independent evidence (as pointed out by him) that APARECO were viewed as a problem in the DRC;
d. There were photographs of the Respondent at demonstrations but there was no evidence that he was anything more of a 'hanger-on' apart from oral evidence from the Respondent and his witness who had both previously been disbelieved;
e. The Judge concluded that the Respondent had joined APARECO (UK) to bolster an asylum claim.
39. His behaviour and the consequences for him had to be assessed in the light of the decisions of YB, BK and SS and in light of the above matters I did not find it reasonably likely that his actions would be brought to the attention of the authorities and for these reasons I find that there was a material error."
"The deputy immigration judge did not recuse himself because he did not consider himself in difficulty. The deputy judge's position was that there was a difference between making findings at the error of law stage and the full hearing stage and that he was there to hear the evidence about sur place activities. He said that he had not preserved his own findings from the error of law hearing so he would not recuse himself."
Part 3. The Appeal to the Court of Appeal
Part 4. Decision
Lord Justice Rimer :
Sir Nicholas Wall:
Order: Appeal dismissed