Upper Tribunal (Immigration and asylum chamber), 2022-10-21, PA/03592/2020
| Appeal Number | PA/03592/2020 |
| Hearing Date | 13 September 2022 |
| Published date | 07 November 2022 |
| Date | 21 October 2022 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
UI-2022-000197
(PA/01592/2020)
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: UI-2022-000197
(PA/03592/2020)
THE IMMIGRATION ACTS
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Heard at Birmingham CJC |
Decision & Reasons Promulgated |
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On 13th September 2022 |
On 21st October 2022 |
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Before
UPPER TRIBUNAL JUDGE MANDALIA
Between
RK
(Anonymity Direction Made)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr M Hussain, Fountain Solicitors
For the Respondent: Mr C Bates, Senior Home Office Presenting Officer
DECISION AND REASONS
An anonymity direction was not made by the First-tier Tribunal (“FtT”). As this a protection claim, it is appropriate that a direction is made. Unless and until a Tribunal or Court directs otherwise, RK is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of his family. This direction applies amongst others to all parties. Failure to comply with this direction could lead to contempt of court proceedings.
Introduction
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The appellant is a national of Iraq. He arrived in the United Kingdom 25th March 2019 and made a claim for asylum the following day. His claim for international protection was refused by the respondent for reasons set out in a decision dated 10th June 2020. The respondent accepted the appellant is an Iraqi national of Kurdish ethnicity but rejected the core of the appellant’s account relating to the events leading to his departure from Iraq. The appellant’s appeal against that decision was dismissed by First-tier Tribunal Judge Aziz for reasons set out in a decision promulgated on 22nd December 2021.
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The appellant claim that the decision of Judge Aziz is vitiated by material errors of law. He advances four grounds of appeal. First, the judge applied a higher standard of proof when assessing the international protection claim than the lower standard of proof applicable. Second, the judge erred in assessing the appellant’s account as being implausible without considering his account in the context of the appellant’s social and cultural background. Third, the judge erred in concluding that there was no objective or country information before the Tribunal to support his claim that the Iranian authorities would cross the border into the IKR to target individuals such as the appellant. Fourth, the judge gave inadequate reasons for attaching little weight to a letter relied upon by the appellant from the ‘Freedom & Human Rights Organization in Kurdistan Region of Iraq’.
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Permission to appeal was granted by First-tier Tribunal Judge Kudhail on 2nd March 2022. She said:
“The grounds assert that the Judge erred in applying too high a standard when assessing the appellant’s protection claim. The judge does refer to the appellant’s account at paragraph 51 as highly implausible and throughout the decision does not refer to the lower standard in his assessment of credibility. Accordingly, there is an arguable error of law.”
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The respondent filed a Rule 24 response dated 28th March 2022. The respondent said she does not oppose the appellant’s application for permission to appeal on ground one, which asserts that the FTTJ applied a higher standard of proof when assessing the appellant’s claim. She went on to say that the respondent accepts there is a material error of law in relation to ground one, and the decision of the FTT should be set aside. The respondent suggested that it would be appropriate to remit the matter back to the FTT.
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By email sent to the Upper Tribunal and the applicant’s representatives at 17:53hrs on 9th September 2022, the respondent gave notice that the Rule 24 response previously served conceding a material error of law in the decision of the First-tier Tribunal is withdrawn. The respondent said that the appeal is now opposed. The respondent said:
“… The concession within the attached R24 was not well made in seemingly drawing a distinction between a ‘Real Risk’ and a ‘Reasonable Degree of Likelihood’ as regards the low standard of proof. As the SSHD’s published policy makes clear the terms are interchangeable and there is no difference- …”
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The respondent referred to her published guidance and provided the relevant hyperlink.
Preliminary issue
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At the outset of the hearing before me, Mr Hussain submitted that Rule 24 of The Tribunal Procedure (Upper Tribunal) Rules 2008 provides for the respondent to provide a response to a notice of appeal within one month after the date on which the respondent was sent notice that permission to appeal had been granted. Here, the respondent had done so under cover of the letter dated 28th March 2022. The respondent conceded that there is a material error of law in relation to ground one and accepted that the decision of the FtT should be set aside. Mr Hussain submits there is nothing in Rule 24 that permits the respondent to withdraw the response filed in accordance with the rules. He submits that up until yesterday, the appellant had understood that his appeal would be remitted to the FtT for hearing afresh, and it is “unfair” for the respondent to withdraw a concession made six months earlier. He submits there had been ample opportunity since 28th March 2022 for the respondent to withdraw the concession, but the respondent had not done so. I asked Mr Hussain a number of times what the ‘unfairness’ or ‘prejudice’ to the appellant is, by the respondent’s belated withdrawal of the concession. Mr Hussain submits the prejudice to the appellant is that it is ‘unfair’ to now allow the respondent to withdraw a concession, when the appellant has proceeded since March 2022 on the basis that the respondent accepts the decision of the First-tier Tribunal should be set aside and the appeal should be remitted for hearing afresh.
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In reply, Mr Bates referred to three decisions of the Court of Appeal that touch upon the test to be applied when considering whether a party should be permitted to withdraw a concession previously made. He referred to the judgments of the Court of Appeal in NR (Jamaica) v SSHD [2009] EWCA Civ 856, Rauf v SSHD [2019] EWCA Civ 1276 and Koori v SSHD [2016] EWCA Civ 552. Mr Bates submits the concession made by the respondent in March 2022 was made on a mistaken premise and contrary to the respondent’s own published guidance; ‘Assessing credibility and refugee status in asylum claims lodged before 28 June 2022 Version 10.0’. The respondent’s published guidance states:
“… ‘Reasonable degree of likelihood’ is a long way below the criminal standard of ‘beyond reasonable doubt’, and it is less than the civil standard of ‘the balance of probabilities’ (i.e. ‘more likely than not’). Other terms may be used: ‘a reasonable likelihood’ or, ‘a real possibility’, or ‘real risk’; they all mean the same…”
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Mr Bates submits it is ultimately for the Tribunal to determine whether the decision of the First-tier Tribunal is vitiated by a material error of law. There is no suggestion that the respondent has acted in bad faith. The appellant’s appeal has been listed for hearing and the appellant is represented. There is no reason why the appeal cannot be heard in the usual way, and if it is said that the appellant requires an adjournment because there has been insufficient time to prepare for the hearing in light of the respondent’s change in position, the respondent would not oppose that application.
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In reply, Mr Hussain referred me to paragraph [12] of the judgment of Lord Justice Goldring in NR (Jamaica). He accepts the Tribunal has a discretion, but he submits, the respondent had ample time to withdraw the concession previously made. He urged me to refuse to exercise my discretion in favour of the respondent and submits the respondent should not be permitted to renege on the concession previously made.
I acknowledge that the withdrawal of the concession previously made by the respondent has come late in the day. That is unfortunate. I accept as Mr Bates submits, the concession made by the respondent is on the face of it, contrary to her own published guidance regarding the assessment of credibility. I am satisfied that there is, in the exercise of my discretion, good reason in all the circumstances for me to permit the concession to be withdrawn. Mr Hussain has been unable to point to any prejudice to the appellant beyond saying that it is ‘unfair’ because the appellant has believed for the past six months that his appeal to the Upper Tribunal is conceded and that the appeal will be remitted to the First-tier Tribunal for hearing afresh. Mr Hussain was unable to point me to any steps that have been taken by the appellant in reliance upon the concession made. It would have been open to the appellant’s representatives to invite the Tribunal to make a decision without a hearing under Rule 34, but they did not do so. The absence of any prejudice to the appellant is not to say that the application to withdraw the concession should...
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