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

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: PA/05728/2017

 

 

THE IMMIGRATION ACTS

 

 

Heard at Field House	Decision & Reasons Promulgated
On 29 June 2018	On 31 July 2018

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

 

 

Between

 

MR A S G

Appellant

v

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

 

Representation :

For the Appellant: Ms A. Jones, counsel instructed by Elder Rahimi

For the Respondent: Mr. N. Bramble, Senior Home Office Presenting Officer

 

____________________________________________

 

DECISION AND REASONS

________________________________

 

1. This appeal came before me for an error of law hearing on 19 March 2018, when I found an error of law and adjourned the appeal for a resumed hearing. A copy of the decision promulgated on 25 April 2018 is appended.

 

2. At the hearing before me, counsel for the Appellant served a skeleton argument which had been served the previous day by email (but was not on the Tribunal file). She sought permission to adduce new evidence, which was that the Appellant's wife is now pregnant with twins and her estimate date of delivery is 17 November 2018. Mr Bramble had no objection. I also had receipt of a skeleton argument drafted by Ms Ahmad for the Respondent. The parties agreed that the issue is internal relocation to Kabul.

 

3. I heard submissions first from Ms Jones, who drew my attention to the fact that there are some facts which are entirely accepted in relation to this Appellant. She went through the country guidance decision in TG [2015] UKUT 595 (IAC) which states a Sikh or Hindu in Afghanistan does not face a real risk of persecution on the basis of ethnicity or religion and all circumstances need to be considered. She sought to rely on [71], [78]-[80]; [85]-[89], [90] [91]-[92], [94] and [95]; [109]-[111]. The issue of internal relocation is dealt with at [115]-[118] and material to this assessment are gender, family support, financial circumstances; access to accommodation, education and employment and the Upper Tribunal's conclusions are at [119].

 

4. She submitted that as with this Appellant, the fourth Appellant in TG is from Jalalabad and the only matter before the Tribunal was relocation. The Upper Tribunal found that he was married with a daughter in secondary education; that there was no real risk of state sponsored persecution but he had no contacts there [133] and found at [136] that it was unreasonable to expect him to relocate.

 

5. Ms Jones accepted that the starting point following Devaseelan is the first determination, which can be found at Annex H1-12 and is dated 1 March 2007. The Respondent accepts that the Appellant and his wife are from Jalalabad and accepts their ages. She accepted that there are negative credibility findings at [15] onwards. However, the First tier Tribunal accepted that the Appellant was a Sikh living in Jalalabad before he left and that he attended school for 4 years and after that he began working for his father in a shop there. The Judge did not accept the account of leaving Jalalabad, nor that he had returned for a while on his own. At [24] he found the Appellant left for economically motivated reasons given the evidence that the business had deteriorated. Ms Jones submitted that his other findings were based on the country situation and guidance at that time and that things have now moved on.

 

6. She drew my attention to the psychological report of Rachel Thomas dated 5 July 2017, which was not relied on for credibility but because the conclusions are important in that the Appellant was significantly traumatized with severe symptoms of PTSD which was chronic with post traumatic traits. She submitted that he received some financial support from his brother: [34] of previous Judge's decision.

 

7. She submitted that, in a nutshell, it would be unduly harsh to expect the Appellant to internally relocate because:

 

(i) he was not from Kabul nor was his family. He left Afghanistan from Jalalabad and Kabul is an unknown environment for him and he has no family connections there. The Appellant's Bundle before the First tier Tribunal contains letters from various relatives and A3 of the Respondent's bundle sets out details of the UK based relatives and British passports;

 

(ii) the Appellant had only a limited education as he was at school for 4 years only. His working life was spent entirely in his father's textile shop or connected to it. The Judge noted that the business had suffered and become a much less reliable source of income;

 

(iii) the Appellant has been living in the UK since 20 August 2006 and has never had permission to work in that time. Thus the chances of him having any reasonable prospect of establishing a new business are very limited and due to a lack of connections there, to be able to rent premises and provide security and rent; he has no capital (as he has been unable to earn here) and his previous business had deteriorated significantly.

 

(iv) the Appellant's mental health needs to be considered as these would impact on his ability to establish a new business and this is unrealistic.

 

(v) the Appellant is likely to be dependent on the diminishing ability of the gurdwara to provide charity.

 

(vi) whilst she accepted foetuses at 20 weeks gestation do not have human rights in their own right, the effect of a long awaited pregnancy on the parents is entirely relevant and in her submission it would be unduly harsh for the 38 year old Appellant's wife pregnant with twins in a first successful pregnancy to relocate to Kabul.

 

8. Mr Bramble sought to rely on the Respondent's submissions set out in his colleague's skeleton argument and did not propose to add to that.

 

9. I allowed the appeal and announced my decision at the hearing. I now give my reasons.

 

Findings

 

10. The Appellant's case, in essence, is that he is on all fours with the fourth Appellant in TG as he too is from Jalalabad and that, for the reasons outlined at [7] above, it would be unduly harsh or unreasonable to expect him to relocate to Kabul or elsewhere in Afghanistan.

 

11. The Respondent's skeleton argument makes the following points:

 

(i) the Appellant's account had been disbelieved by the First tier Tribunal who dismissed his appeal in 2007 and this was the starting point and any new evidence which could have been brought to the attention of the Tribunal previously should be treated with the greatest circumspection;

 

(ii) no weight should be attached to the psychological report given that it was prepared over 11 years after the claimed persecution occurred;

 

(iii) in respect of the country guidance decision in TG the Appellant could set up his own business on return to Afghanistan with the financial assistance of family members in the UK and there is a Sikh community in Kabul who would be able to assist.

 

12. Mr Bramble did not seek to make any additional submissions as to the credibility of the Appellant or risk on return to the Appellant and his wife.

 

13. The headnote to TG (Afghan Sikhs Persecuted) CG [2015] UKUT 595 (IAC) provides:

 

"Risk to followers of the Sikh and Hindu faiths in Afghanistan:

(i) Some members of the Sikh and Hindu communities in Afghanistan continue to suffer harassment at the hands of Muslim zealots.

(ii) Members of the Sikh and Hindu communities in Afghanistan do not face a real risk of persecution or ill-treatment such as to entitle them to a grant of international protection on the basis of their ethnic or religious identity, per se. Neither can it be said that the cumulative impact of discrimination suffered by the Sikh and Hindu communities in general reaches the threshold of persecution.

(iii) A consideration of whether an individual member of the Sikh and Hindu communities is at risk real of persecution upon return to Afghanistan is fact-sensitive. All the relevant circumstances must be considered but careful attention should be paid to the following:

a. women are particularly vulnerable in the absence of appropriate protection from a male member of the family;

b. likely financial circumstances and ability to access basic accommodation bearing in mind

-  Muslims are generally unlikely to employ a member of the Sikh and Hindu communities

-  such individuals may face difficulties (including threats, extortion, seizure of land and acts of violence) in retaining property and / or pursuing their remaining traditional pursuit, that of a shopkeeper / trader

-  the traditional source of support for such individuals, the Gurdwara is much less able to provide adequate support;

c. the level of religious devotion and the practical accessibility to a suitable place of religious worship in light of declining numbers and the evidence that some have been subjected to harm and threats to harm whilst accessing the Gurdwara;

d. access to appropriate education for children in light of discrimination against Sikh and Hindu children and the shortage of adequate education facilities for them.

(iv) Although it appears there is a willingness at governmental level to provide protection, it is not established on the evidence that at a local level the police are willing, even if able, to provide the necessary level of protection required in Refugee Convention/Qualification Directive terms, to those members of the Sikh and Hindu communities who experience serious harm or harassment amounting to persecution.

(v) Whether it is reasonable to expect a member of the Sikh or Hindu communities to relocate is a fact sensitive assessment. The relevant factors to be considered include those set out at (iii) above. Given their particular circumstances and declining number, the practicability of settling elsewhere for members of the Sikh and Hindu communities must be carefully considered. Those without access to an independent income are unlikely to be able to reasonably relocate because of depleted support mechanisms."

 

14. In respect of the fourth Appellant, who it was accepted would be at risk of persecution from non-state agents in Jalalabad, the Upper Tribunal held:

 

"134.     Unlike the first three appellants, the fourth appellant has no direct means or ability to support his family and it is likely that he will have to turn to the Temple for support. We comment above on the resource issues in relation to the tradition of support provided by the Temple, which is enshrined in the beliefs and practices of these religious groups, which is funded by donations from an ever dwindling and economically challenged congregation. The evidence also refers to a number of individuals already having sought the support of the Temple and the overcrowding that occurs there already as a result.

 

135.     The situation of the fourth appellant's wife and daughter will be similar with the additional factor that they are unlikely to be able to leave the very difficult conditions at the Temple without male support to provide a form of protection, although whether this is credible and effective from an elderly gentleman with his own health needs is debatable.

 

136.     Having assessed the situation of the fourth appellant and his two dependents we find it would be unreasonable to expect them to relocate to Kabul. He has no family or other contacts there and his circumstances are such that will find it very difficult to survive economically in the absence of access to an independent income. He is likely to have to resort to living in the Temple with his family with little or no contact with the outside world. We find that when his circumstances are considered cumulatively they support a finding he will be prevented from living a relatively normal life without undue hardship. We find internal relocation in such circumstances not to be reasonable."

 

15. I have also had regard to the expert reports of Claudio Franco. His most recent report of 4 July 2017 provides inter alia at AB viii [11]: " As "idol worshippers" the sectarian extremists see Hindus and Sikhs as even lower than Shia. Attacks against the ever-dwindling Sikh and Hindu communities have likewise become seemingly routine. In incidents which achieved international coverage, in June 2016, a Sikh proprietor of a natural medicine store was almost beheaded in broad daylight in Kabul when a customer demanded he convert to Islam and then attacked him with a large knife. In October 2016, a Sikh man was abducted by militants wearing Daesh-style fatigues and killed in Jalalabad..."

 

And at xiii [19]: " the security situation in Afghanistan generally, and in Nangarhar in particular, are unquestionably at the most precarious they have been since 2001... It is also clear that the level of sectarian tension and attacks targeted at religious minorities, whether Shia, Hindu or Sikh, have reached an unprecedented level."

 

And at xiii-xiv [20]: "[the appellant] would be at grave danger in Afghanistan due to the mere fact of being a Sikh. The last remaining members of the Sikh community are fleeing Afghanistan and lacking community support and facing generalized discrimination, I consider it would be extremely difficult and very plausibly lethally dangerous for ASG to attempt to re-establish himself in Jalalabad or elsewhere in Afghanistan."

 

16. I make the following findings of fact:

 

(i) the Appellant is from Jalalabad. He has consistently maintained that this is the case;

 

(ii) neither he nor his wife have any family members in Jalalabad and they have had no contact with anyone living there or elsewhere in Afghanistan for many years, which is unsurprising given that they left the country in 2006. The Appellant's mother, two sisters and a brother are all residing in the United Kingdom and his siblings are British. His brother, Taranjeet has been missing since 2006. His wife's parents and brothers are in the United Kingdom and have settled status. They have had no contact with her sister since before they left Afghanistan. The Appellant's father died many years ago;

 

(iii) the Appellant has no property in Afghanistan;

 

(iv) the Appellant and his wife are financially supported in the UK by their family members and he has not worked since he arrived in 2006. Whilst he speaks Dari and Pashto he cannot read or write in those languages. He states and I accept in light of TG, the background evidence and the expert report of Claudio Franco, that there is little prospect of him finding employment if returned to Afghanistan, as the unemployment rate is very high; he would not find work with a Muslim employer and the Sikhs who have remained are very poor and have no work to offer;

 

(v) I find as with the fourth Appellant in TG that he would most likely resort to having to live in the gurdwara with his wife and little or no contact with the outside world.

 

17. I find in light of the above that the Appellant cannot reasonably return to Jalalabad given presence of Daesh/Islamic State and the deterioration in the security situation, particularly for minorities including Sikhs, as set out in the expert report of Claudio Franco. I further find that he cannot reasonably be expected to internally relocate to Kabul or elsewhere in Afghanistan and that it would be unduly harsh to expect him to do so. Even if he were to receive financial support from his or his wife's family in the United Kingdom, the evidence appears to indicate that there would be an absence of practical support or effective protection. I further take account of the finding in TG that the ability of the gurdwara to continue to offer support is diminishing. Given that the relevant date is that of the date of hearing I also take account of the fact that the Appellant's wife is pregnant with twins, which also renders her particularly vulnerable. I find there is a real risk that the Appellant and his wife would be targeted by sectarian extremists solely on the basis of their Sikh religion.

 

Decision

 

18. The appeal is allowed on protection grounds.

 

 

Rebecca Chapman

 

Deputy Upper Tribunal Judge Chapman 22 July 2018

 

 

ANNEX

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: PA/05728/2017

 

 

THE IMMIGRATION ACTS

 

 

Heard at Field House	Decision & Reasons Promulgated
On 19 March 2018
	.......................................

 

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

 

 

Between

 

MR ASG

(ANONYMITY DIRECTION made)

Appellant

v

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

 

Representation :

For the Appellant: Ms. A. Jones, counsel instructed by Elder Rahimi Solicitors

For the Respondent: Ms. Z. Ahmad, Senior Presenting Officer

 

_______________________________________

 

ERROR OF LAW DECISION & REASONS

_______________________________________

 

1. The Appellant is a national of Afghanistan, born on 1 January 1975 and is of the Sikh faith. He arrived in the United Kingdom on 20 August 2006 and claimed asylum the following day. This application was refused on 23 October 2006 and his appeal against that decision was dismissed in a decision promulgated on 1 March 2007. The Appellant became appeal rights exhausted on 9 August 2007.

 

2. The Appellant made submissions in support of a fresh claim on 5 December 2008 and 26 June 2012, both of which were rejected. On 9 March 2015, he made a further set of submissions which were considered by the Respondent and treated as a fresh claim, but refused in a decision dated 4 May 2017, on the basis of the credibility of the claim and in light of the country guidance decision in TG (Afghan Sikhs Persecuted) CG [2015] UKUT 595 (IAC).

 

3. The Appellant appealed and his appeal came before First tier Tribunal Judge Young for hearing on 13 July 2017. The Appellant did not give evidence on the basis that he had been assessed as psychiatrically unfit, however, his brother, HG, gave evidence and was cross-examined. In a decision promulgated on 11 August 2017, the appeal was dismissed. An application for permission to appeal to the Upper Tribunal was made, in time, on the basis that the Judge had erred materially in law:

 

(i) in failing to place weight on the report of Dr Rachel Thomas and in failing to make findings in respect of it;

 

(ii) in making findings which are internally contradictory in respect of paragraph 276ADE of the Rules and the CG decision in TG (Afghan Sikhs Persecuted) CG [2015] UKUT 595 (IAC);

 

(iii) in failing to take account of material factors when considering TG (Afghan Sikhs Persecuted) CG [2015] UKUT 595 (IAC).

 

4. Permission to appeal was granted by Upper Tribunal Judge McWilliam in a decision dated 19 December 2017, on the basis that it is arguable that the judge rejected the entirety of the evidence of the consultant psychologist, Dr Rachel Thomas, when assessing credibility whilst when assessing risk under Article 3 accepted that the Appellant has PTSD symptoms and major depressive illness. It is arguable that the findings about the medical evidence lack clarity.

 

5. In a rule 24 response dated 16 January 2018, the Respondent opposed the appeal on the basis that the decision disclosed no material error of law and the grounds of appeal amount to mere disagreement with the Judge's findings.

 

 

 

 

Hearing

 

6. At the hearing before me, Ms Jones sought to rely on the grounds of appeal. She then took me through the Judge's decision, observing that in granting permission to appeal, Upper Tribunal Judge McWilliam refers to [132] where the FtTJ stated that he was not prepared to place weight on the terms of the report and [162] which in fact is a consideration of the decision of the Court of Appeal in KH (Afghanistan) [2009] EWCA Civ 1354. However, at [161] whilst finding that he is not satisfied that there is the " clearest possible evidence of a real risk of" suicide, the Judge appeared to accept, based on the report, that the Appellant reported " significant suicidal ideation." The Judge considers the report and findings of Dr Thomas at [113]-[132]. At [159]-[160] the Judge misdirected himself in assessing the risk of suicide with reference to the decision in N [2004] UKAIT 00053 which is entirely out of date and fails to refer to the judgments of the Court of Appeal in J [2005] EWCA Civ 629 and Y & Z [2009] EWCA Civ 362 . Ms Jones submitted that the Judge proceeds on the basis that the psychological report is right at [161]-[165] and this is contradictory in respect of his conclusion at [132] not to place weight on the report. She submitted that one cannot be sure what was accepted and what was rejected in terms of the psychological report because the Judge does not distinguish and in fact elides at [25]-[27] whether what the Appellant told the psychologist was true and whether he was mentally ill or not. It would be perfectly possible for a Judge to say that an Appellant's version of events of what triggered these events is correct or find that the Appellant is not mentally ill at all. Such a finding needs to be made explicitly and not by implication.

 

7. Ms Jones also submitted that the Judge made contradictory findings in respect of the country guidance decision in TG at [133] in that he makes findings that the Appellant was able to trade in textiles as a self-employed tradesman throughout the region [75](d) so he could make a living or find accommodation but he has sold all his properties and businesses. She submitted that the Judge erred in finding that he would be able to protect his wife whilst working full time as a travelling salesman because this cannot all be true at the same time and the findings were clearly inconsistent.

 

8. Ms Jones further submitted that the Appellant is from Jalalabad whereas the lead Appellant in TG is from Kabul. In the case of the Appellant from Jalalabad he was accepted to have a well-founded fear of persecution and the Judge has simply not considered the objective evidence in relation to Jalalabad. There were also three expert reports from Claudio Franco stating that he would be inclined to exclude the possibility of return to Jalalabad, both in terms of economic viability and the personal safety of the Appellant and his family and the possibility of relocation elsewhere as extremely risky. Yet all the Judge has said about the expert reports is that they do not overcome TG at [87]-[89] and that the Appellant could have the continuing support of his family by remittances being sent from the UK to Afghanistan [107]. Ms Jones submitted that there were material errors of law.

 

9. In her submissions, Ms Ahmad submitted that, in respect of the

first ground of appeal and the fact that the Judge had failed to apply the law correctly in respect of his consideration of the suicide risk, this had not been raised in the grounds of appeal or by Judge granting permission. She submitted that it was not material in light of the decision as a whole in that, even if the Judge applied the law correctly, he could not succeed so it was not material as he did not accept the report. She submitted that there was no contradiction in that from [159]-[163] it does not seem that the Judge accepted the contents of the psychologist's report and at [164] there was no acceptance that this Appellant had suicidal episodes and thus no acceptance that the report is acceptable or reliable and the Judge was simply considering the suggestion made.

 

10. In respect of the Judge's consideration of the medical evidence, Ms Ahmad sought to rely upon HH (Ethiopia) [2005] UKAIT 00164 and SS (Sri Lanka) [2012] EWCA Civ 945. In her submission the Judge looked at the report in great detail at [131] and those considerations have been not been challenged in any meaningful way in the grounds. It is clear from SS (Sri Lanka) that the weight to be attached to the report is a matter for the Judge and the Judge's consideration of the report is very detailed and his findings were open to him.

 

11. In respect of the grounds relating to the country guidance decision in TG she submitted that it is clear that consideration of risk to Afghan Sikhs is very fact sensitive and in her submission the Judge gave consideration to the CG case and his findings were open to him. At [133] and in respect of the two criticisms made in terms of asserted inconsistency, in her submission there was no suggestion that the Appellant would need to be away all the time and so he would still be at home with his wife. It had been open to the Judge to make these findings as there was nothing to show how long he would be away from his wife. She submitted that it was further open to the Judge to find at [133](b) that the Appellant could start a business, despite having sold his properties. Ms Ahmad submitted that the failure by the Judge to take account of the fact that the Appellant is from Jalalabad does not take the Appellant any further, given the fact sensitive assessment. She further submitted, in reliance on AH (Sudan) [2007] UKHL 49 at [30] that the Tribunal should be cautious when findings of fact have been made and that decisions should be respected unless it is quite clear that the First tier Tribunal Judge has misdirected himself in law.

 

12. In her reply, Ms Jones submitted that the fact that the Judge considered the medical report over 19 paragraphs does not mean it is a lawful decision. She submitted that it is possible to read the whole determination and not be sure what the decision is. She further submitted that, in respect of the Article 3 parts there is considerable consideration and reliance on the psychological evidence. None of careful judicial phrases appear and the conclusions upon the medical evidence are confusing. In respect of the Judge's application of TG Ms Jones submitted that the issue here is Jalalabad as the place of origin which is a highly material fact and was simply not referred to. The fourth Appellant in TG was found to have a well-founded fear of persecution in Jalalabad whereas by far the largest number of Sikhs is in Kabul. Dr Ballard's reference is that they are different worlds is at [32]. There are some families living in the gurdwaras outside Kabul: see [51] but none in Kabul where they live near Gurdwara.

 

13. I reserved my decision, which I now give with my reasons.

 

Findings

 

14. I have given careful consideration to the submissions of both parties and to the decision of the First tier Tribunal Judge, which is lengthy and detailed, running to 166 paragraphs over 26 pages. Whilst I take Ms Jones's point that it is possible to read the entire decision and not be clear what the decision is, that is not in fact the case, however, I do find that the decision could have been more succinctly drafted and that it was not necessary to include lengthy citations from the psychological and country expert reports in lieu of findings on those reports. This is not in itself an error of law but it does make it more difficult to ascertain the reasons provided by the Judge for his findings and to ascertain exactly what those findings are.

 

15. In respect of the specific grounds of appeal raised on behalf of the Appellant, I find although the Judge gave detailed consideration to the report of the consultant psychologist, Dr Rachel Thomas at [113]-[132] his focus was on the facts and the history of the case. The Judge does not engage with Dr Thomas' diagnoses of the Appellant as " significantly traumatised" whose presentation was consistent with an individual " suffering from severe symptoms of Major Depressive Disorder which appear to be chronic in nature and with post-traumatic traits" but rather rejects the underlying facts as a means to conclude that he was not prepared to place weight on the terms of the report. I find that this was an erroneous approach, given the clear and consistent line of jurisprudence from Mibanga [2005] EWCA Civ 367 onwards that the credibility of a claim should be considered in light of the expert evidence, rather than the other way around.

 

16. I further consider there is merit in the submission that, having placed no weight on Dr Thomas' report, the Judge went on to place weight on the report in respect of the risk of suicide, which is inconsistent. It is also the case that the Judge misdirected himself in law in respect of the risk of suicide by relying on entirely outdated and immaterial law rather than the Court of Appeal judgments in J [2005] EWCA Civ 629 and Y & Z [2009] EWCA Civ 362. Whilst this was not a point raised in the grounds of appeal, I consider that it is a Robinson obvious point and that it renders the Judge's findings in this respect unsustainable.

 

17. In respect of the manner in which the Judge applied the country guidance decision in TG (op cit), the Judge sets out the headnote in full at [87] and analyses it at [133]-[136]. I find that, given that the basis of that decision was that the question of whether or not an individual member of the Sikh community is at real risk of persecution on return to Afghanistan is fact sensitive and that all relevant circumstances should be taken into account, the failure by the Judge to factor into his consideration the fact that the Appellant is from Jalalabad rather than Kabul is a material error, particularly in light of the finding in the country guidance case that the fourth Appellant had a well-founded fear of persecution in Jalalabad. There is no consideration by the Judge in this case of whether or not the Appellant and his wife could reasonably be expected to internally relocate to Kabul. I further consider that the ground raised as to the Judge's contradictory finding that the Appellant could support himself and his wife by working as a salesman throughout the region ie. travelling and could at the same time protect her is made out.

 

18. I have considered whether despite the errors set out above, the decision or parts of the decision of the First tier Tribunal Judge can stand, bearing in mind that the Appellant's initial asylum claim was refused and his appeal dismissed in March 2007, with negative credibility findings and that the decision in Devaseelan applies and in light of the decision of their Lordships in AH (Sudan) [2007] UKHL 49 at [30]. I have concluded that, bearing in mind the overriding objective and given that this is a fresh claim and that the position of Sikhs in Afghanistan has changed since the Appellant's previous appeal was dismissed over 11 years ago and that the Appellant has been diagnosed by a consultant psychologist as suffering from mental health problems as a consequence of which he was not psychiatrically fit to give evidence, the fairest course of action would be to set aside the decision of the First tier Tribunal Judge.

 

Decision

 

19. The decision of First tier Tribunal Judge Young is vitiated by errors of law. That decision is set aside and the appeal is adjourned for a hearing de novo before the Upper Tribunal.

 

 

_________________

 

DIRECTIONS

_________________

 

1. The appeal is to be listed on the first available date for submissions only with a time estimate of 1 hour.

 

2. The parties are to provide skeleton arguments 5 days before the hearing.

 

3. Any further evidence upon which the Appellant seeks to rely is subject to application to the Upper Tribunal in accordance with the requirements of paragraph 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008.

 

 

Deputy Upper Tribunal Judge Chapman

 

25 April 2018