THE IMMIGRATION ACTS
Heard at Manchester Civil Justice Centre
On 10 January 2019
Decision and Reasons Promulgated
On 17 April 2019
DEPUTY UPPER TRIBUNAL JUDGE O'RYAN
(ANONYMITY ORDER MADE)
For the Appellant: Mr Schwenk, Counsel, instructed by the Greater Manchester Immigration Aid Unit.
For the Respondent: Mr Tan, Senior Home Office Presenting Officer
DECISION AND REASONS
1 This is the appellant's appeal against the decision of Judge of the First-tier Tribunal Devlin dated 1 May 2018 following a hearing at the Manchester hearing centre on 19 April 2018.
2 The appellant is a national of Guinea who last entered the United Kingdom on 4 February 2017. He made a protection claim on 4 April 2017, asserting that he was at risk of serious harm from the authorities in Guinea for reason of his political opinion. The appellant claims to have been politically active for the UFDG party, and also to have set up an Non-Governmental Organisation; there was some suggestion that the authorities suspected that his activities within this NGO were also political. The Respondent had rejected the appellant's claim and the appellant appealed to the judge. He was unrepresented before the judge.
3 The judge noted at  that the appellant's account had remained consistent in its basic focus and outline throughout. However, the appellant's account involved a sequence of events occurring in Guinea between 20 th and 25 th February 2017, ie after he had entered the United Kingdom. The judge noted conflicts in the oral and documentary evidence as to the number, dates, and locations of certain raids said to have taken place on the appellant's property (whether his home, the office of his own business, or his NGO office) and whether and how many times his office manager, FS, had himself been arrested during those events. The judge considered these matters within his decision between -, and found that the Appellant's evidence on these mattes was unreliable (end of ).
4 Although the judge rejected at - and at - certain other concerns raised by the respondent about the appellant's account, the judge held that certain other elements of the account were to be regarded as 'somewhat suspect': at , the appellant's claim that he had remained at home following his own arrest and detention in October 2016 because his lawyer had advised him to do so; and at , that a wanted person's warrant had been issued in respect of him on 20 February 2017. Further, certain discrepancies in the arrest warrant, considered at - and at - were held by the judge to adversely affect the weight that the judge was prepared to attribute to it. The Judge also noted that the Appellant had not produced any medical evidence in support of his appeal. The appeal was dismissed.
5 The appellant, or someone assisting him, prepared manuscript grounds of appeal challenging the judge's decision. These argued, in summary, that the judge had erred in law in:
(i) failing to adjourn the appeal to enable the appellant to obtain medical evidence;
(ii) failing to have regard to certain GP notes which were before him which were said to establish that the GP had diagnosed that the appellant was suffering from post-traumatic stress disorder;
(iii) making inadequate findings of fact and providing inadequate reasons for findings made within the decision;
(iv) making inadequate conclusions regarding the emails from SF; the grounds provide: "...while I have mentioned that I have an important email in French received on24/02/2017. The email was not translated because I did not have a solicitor yet."
6 Permission to appeal was initially refused by Designated Judge of the First-tier Tribunal Woodcraft in a decision dated22 June 2018.
7 A renewed application for permission to appeal was filed by the appellant in person on 11 July 2018, although now supported by typed grounds of appeal which I am informed were prepared pro bono by Mr Schwenk. Those grounds argue, in summary, that the judge erred in law in:
(i) preceding unfairly; Mr Shwenk's grounds purport to quote from the Appellant's original manuscript grounds: "I told [the FTTJ] that I have an important email in French that I received on24/02/2017 ..."; it was argued that the content of that email (which was submitted with the renewed application for permission to appeal with an uncertified translation) included relevant evidence as to the sequence of events commencing on 20 February 2017; the existence of that email having seemingly been brought to the judge's attention, it was argued that the judge proceeded unfairly by failing to admit the email, or to permit the appellant to read it out orally, and for the court interpreter to have interpreted that part of the appellant's evidence;
(ii) failing, when treating the Appellant's lack of medical evidence as undermining the credibility of his account, to take into account the fact that the appellant had been unrepresented before the judge; and in any event the judge had failed to have regard to the content of the GP's records;
(iii) failing, when considering the weight to be attached to any discrepancy within the appellant's account, to have regard to the appellant's assertion that he had been tortured, the effect of which might itself have resulted in discrepancies or inconsistencies in the appellant's evidence.
8 Permission to appeal was granted by Upper Tribunal Judge Chalkley on 15 October 2018 on the basis that the first challenge raised a properly arguable issue which should be explored by the Upper Tribunal, but it was noted that all grounds may be argued.
9 Upon the matter coming before the Upper Tribunal, Mr Schwenk, previously assisting pro bono, was now instructed by the Greater Magister Immigration Aid Unit. However, Mr Schwenk informed me that it had thus far been difficult to collate all the papers in the matter; he did not, for instance, have a copy of the Appellant's bundle before the FTT, referred to in the decision at  as comprising 5 items and running to some 167 pages. It is to be noted from  that the judge described an item within that bundle as being a witness statement of the Appellant, being 5 pages. The judge does not mention the date of the witness statement.
10 Mr Schwenk first sought to rely upon the procedural fairness argument which I have summarised at [6(i)] above. However, I drew to the parties attention an apparent discrepancy as to what the appellant himself had asserted in his original grounds of appeal. The assertion is made in the Appellant's original manuscript grounds of appeal, that he had 'mentioned that' he had an email dated 24 February 2017, whereas Mr Schwenk in purporting to quote from those original grounds, had asserted that the original grounds stated that 'I told him that ...'. It eventually became apparent that there were two versions of the manuscript grounds of appeal. The grounds had been written out again, with the content remaining unchanged, save for the difference that I have noted, and the addition of a further sentence at the end of Ground 4. Mr Schwenk had had sight of the slightly different set of manuscript grounds when preparing his types renewed grounds of appeal.
11 It is unclear why two handwritten documents appear to have been prepared by the appellant in which the only material difference is a change of emphasis as to what the appellant had done to bring the existence of the email of 24 February 2017 to the judge's attention. Mr Schwenk obtained instructions on this matter, and informed me that the appellant had indeed prepared, or caused to be prepared, different versions of the handwritten grounds of appeal, but Mr Schwenk had not been able to obtain clear instructions as to why that had been done. Of course, Mr Schwenk cannot be said to have been at fault in merely seeking to quote from the document which had been brought to his attention.
12 I additionally noted that there was no witness statement from the appellant submitted under Rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008 as to what had actually happened in the appeal hearing, or what he had done to bring the email of 24 February 2017 to the judge's attention. Wherever an appellant asserts procedural unfairness, the allegation must be properly evidenced. It is not.
13 I am not satisfied, in the absence of any witness statement from the appellant on this matter, and in the light of the doubt raised by the appellant's two different versions of his handwritten grounds of appeal, that there is any satisfactory evidence to establish that the appellant did bring the judge's attention to the existence of an email dated 24 February 2017 which may or may not have had a bearing on the judge's analysis of the overall evidence relating to the events between 20 and 25 February 2017.
14 However, during the course of the hearing before me another anomaly as to the evidence before the judge became apparent. I have mentioned above that the judge noted in the decision that the bundle before him comprised 5 items, in 167 pages, and that the appellant's witness statement had been 5 pages long.
15 When addressing the apparent discrepancies in the appellant's evidence as to the events of 20 - 25 February 2017, the judge sets out at  an extended passage, said to be found in paragraph 20 of the appellant's witness statement.
16 However, the copy of the appellant's bundle which is to be found on the Tribunal file, stamped as having been received by the Tribunal at the Piccadilly hearing centre on 16 April 2018, contains only 4 items, is 142 pages in length, and contains a witness statement which is 9 pages in length, and was signed by the Appellant on 19 April 2018 (ie the date of the hearing). It also contains at paragraph 20 an account of the events between 20 and 25 February 2017 which differs materially from the quotation set out in the judge's decision at .
17 Although Mr Schwenk informed me that he did not have a copy of any appellant's bundle, he had a copy of the 9 page witness statement. Mr Tan confirmed that the Home Office file contained a copy of the bundle which was on the Tribunal file, ie 4 items, 142 pages, including the 9 page witness statement. There was no copy of a bundle with 5 items, 167 pages, including a 5 page witness statement on either the Tribunal or Home Office file.
18 It therefore appears that there was another bundle, which was greater in size, although oddly containing a shorter statement, that the judge referred to when deciding the appeal. That bundle is not on file.
19 Without setting out the full content of two versions of paragraph 20 of the Appellant's two different witness statements, I form the view that the differences in the accounts given in these statements, set out (i) in the quote at  in the decision, and (ii) in the statement actually on the Tribunal file, are sufficient for me to be satisfied that the judge may have arrived at a different conclusion on the credibility of the appellant's account of events between 20 and 25 February 2017, if in fact the judge ought to have been considering the 9 page version of the witness statement rather than the 5 page version referred to in his decision.
20 Against that background, I considered what the appropriate course of action might be. Mr Schwenk canvassed the possibility of adjourning the appeal, so that a witness statement might be prepared by the appellant as to exactly what transpired at the hearing, and explaining how there appeared to be two different versions of his appeal bundle. Given that the appellant was not represented at the time of the hearing before the judge, I agree that in order for this Tribunal to be satisfied on a balance of probabilities as to what actually happened during the preparations for the appeal hearing on 19 April 2018, and why there appears to have been two different bundles in existence, oral evidence would, unusually, be required from the appellant, using an interpreter, at this error of law stage. Further, if I were to adjourn the matter, it may be appropriate to invite the judge to provide a note as to his own recollection of events. It may also be possible for me to cause enquiries to be made at the hearing centre Piccadilly to attempt to establish the whereabouts of the missing second bundle.
21 I also considered whether an alternate approach to determining this appeal may be taken; by considering whether there may have been, to a hypothetical fair minded observer, the appearance that the appeal proceeded unfairly, arising from a possible error as to which version of the statement was to be relied upon. However, there is no suggestion that the judge was biassed in any way, and it may in fact not have been apparent to any observer that any confusion had in fact arisen.
22 Rather, without adjourning, and without making any findings as to how and why there were two versions of the appellant's bundle before the Judge, or making a finding as to which of them he should have taken into account, I am satisfied at this juncture that there was an error of law in the judge's decision; by failing to set out the fact that there were two bundles, with two differing statements, and to make a clear finding as to which evidence he was taking into account, and why. The error was, in essence, to identify the relevant evidence.
23 I take into account, in making that decision, that the 9 page witness statement, giving the account of events from 20 to 25 February 2018 and which differs from the version set out in the judge's decision, was filed with the Tribunal 3 days before the hearing but appears to have been signed on the date of hearing; indeed may well have been signed by the Appellant at the hearing itself. I am satisfied that it was on the Tribunal file at the date of hearing.
24 I also note that there are two mistranscriptions in the last 2 lines of para  of the judge's decision; the judge there states: "Likewise, the email from (SF) dated 18 January 2018 makes no mention of any arrest on 20 February 2018 - although it does make reference to his arrest " Between 24 and 25 February 2015"". The judge's second reference in that sentence to 20 February 2018 should be a reference to 20 February 20 17, and the reference to 24 and 25 February 2015 should be a reference to 24 and 25 February 20 17. These mistranscriptions, whilst not amounting to material errors in themselves, do nothing to reassure the reader of the decision that the judge was taking the correct evidence into account.
25 I am satisfied that the judge's error as set out at  above was material to the outcome of the hearing. Although there were reasons given by the Judge for rejecting the Appellant's account, other than the alleged discrepancies in the appellant's evidence regarding the events of 20 to 25 February 2017, I am of the view that these events represent the core of the appellant's account, and I am not satisfied that had the error I have identified not been made, that the judge would inevitably have arrived at the same decision.
26 Further, by the end of oral hearing before me, Mr Tan had in any event accepted, in the light of my finding that the differences in the two versions of the witness statement were capable of being material to the outcome of the appeal, that the level of uncertainty as to whether the judge had taken the relevant evidence into account resulted in the judge's decision being unsafe and not sustainable.
27 Insofar as the error identified above was not raised in the appellant's grounds of appeal, I gave the appellant permission to rely on the point, with no objection from Mr Tan.
The judge's decision involved the making of a material error of law.
I set the decision aside.
I remit the appeal to the First tier Tribunal
28 Given the confusion identified above as to exactly what evidence was or should have been before the judge, it behoves the appellant, who is now represented by experienced solicitors, to set out in witness evidence exactly what the sequence of events was between 20 and 25 February 2017, and to provide any and all relevant evidence relied upon in support of the appellant's account.
1. The appellant shall file and serve a consolidated, replacement bundle, not less than 10 days before the rehearing of this appeal before the First tier.
2. If the respondent intends to rely on any evidence not already contained within his bundle (for example, any version of the appellant's witness statement other than the 9 page version dated 19 April 2018) he must file and serve it not less than 5 days before the rehearing of this appeal in the First tier.
Signed: Date: 14.4.19
Deputy Upper Tribunal Judge O'Ryan
Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
This appeal concerns a protection claim. Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their family. This direction applies both to the appellants and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.
Signed: Date: 14.4.19
Deputy Upper Tribunal Judge O'Ryan