Inadequate Reasons for Factual Findings
By Danielle Cohen Immigration Law Solicitor LinkedinDanielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice.
We made an application for leave to remain in the United Kingdom and the application was refused under Article 3 and Article 8. We appealed the decision to the First Tier Tribunal and the appeal was won on 28th February 2013 where the First Tier Judge allowed the appeal under Article 3 and Article 8. The Home Office applied for permission to appeal the determination to the Upper Tribunal. In granting the application of the Home Office the Judge found that it is arguable, the Tribunal provided inadequate reasons for its factual finding. It was found also the Tribunal failed to address the issue of internal relocation within the context of Article 3, ill-treatment in Japan, and failed to provide a proper analysis of the Article 8 issue in line with the decision in Gulshan. Both ourselves and Counsel acted pro bono in the error of law hearing and after careful consideration the upper tribunal found the determination had to be set aside. The reason for doing so was because a party to adversarial proceedings is entitled to know the reasons why a decision has or has not gone in their favour. In this appeal it was not sufficient for the Judge to set out the evidence that she heard from the Appellant together with details of her cross examination which was extensive and then state in one sentence that she finds that the starting point in an assessment of credibility is that she finds the appellant to be a credible witness, without providing any specified reasons or reasons why she came to that finding. Furthermore, although the Judge goes on to state that the current evidence does not indicate a sufficiency of protection nowhere has the Judge provided an analysis of the evidence or articulated reasons as to why she concluded as she did.
Counsel submitted that if the Court found that the Judge had erred materially then the Court should proceed to substitute their own decision on all evidence that was before them. We do not set the entirety of the Appellant’s story, but suffice to say that we provided very lengthy statements, a psychologists report and country report from Professor Goodman.
Having dismissed our case under Article 3 the Tribunal posed the question “Does the legitimate aim really justify requiring a vulnerable Appellant who has spent half her life in the UK to discontinue her currently beneficial psychological treatment for genuine mental health issues and return her to a country where she would be constantly living in legitimate fear of the abuse. The answer is plainly “no”, said the Tribunal. The Secretary of State upon whom the burden of proof rests, was unable to come up with any sufficient or satisfactory explanation of why that level of interference with her established private life was proportionate. It is for these reasons that the Tribunal found the proposed interference by the Respondent with the exercise of the Appellant’s rights to respect for private life is not proportionate to the legitimate public ends sought to be achieved and the appeal succeeded and was allowed under Article 8.