As to the Presidential Guidance Note No 2 of 2010, Ms Atas drew attention to the fact that she had made express reference to this guidance at [2] and [5] of her skeleton argument which was before the judge, and also to the case of AM (Afghanistan) [2017] EWCA Civ 1123 which held that it was an error of law to fail to follow the Presidential Guidance. Ms Atas submitted that the judge had failed to make any finding as to whether or not the Appellant was vulnerable and if he was vulnerable what impact this had on the credibility of the Appellant and his evidence.
In relation to ground 1 of the grounds of appeal, the assertion that the judge had misapplied the guidance in Devaseelan , Ms Atas relied on the fact that the determination of Judge Boyd was not before the First-tier Tribunal and that the judge should have asked for it and that it was material at the very least in relation to the issue of whether or not there were very significant obstacles to the Appellant's integration in Albania.
In relation to ground 4 of the grounds of appeal, Ms Atas submitted that the judge erred in failing to apply his finding at [28] that the Appellant suffers from mental health problems to his assessment of whether or not there would be very significant obstacles to his integration in Albania. She submitted the Appellant was someone with severe mental health problems and a further level of consideration ought to have been made that given the length of time the Appellant had been suffering from mental health issues, nor was any consideration given to how stigma and discrimination would impact the Appellant on return: see [19] of her skeleton argument.
In her submissions, Ms Isherwood acknowledged that the judge did not refer to the Appellant asking to be treated as a vulnerable witness, however this does not mean that this evidence would have been accepted. She submitted that this was a human rights claim only as the asylum appeal had been dismissed and could not be reopened and that it was clear that the asylum claim was settled from [14] of the determination. Ms Isherwood submitted it was clear the judge had considered the evidence before him: see [27] and [28] and at [31] that it was open to the judge to make the findings he did. Whilst it was disappointing that the judge did not have the First-tier Tribunal determination of Judge Boyd there was no material error of law.
I found that there are material errors of law in the decision and reasons of First-tier Tribunal Judge Hussain. I gave my decision with brief reasons at the hearing and I now provide my full written reasons.
At [28] of the determination the Judge held:
"I am satisfied that the appellant suffers from mental health issues."
It is clear from the medical evidence that was before the judge, and which he largely accepted, that the Appellant is a person with mental health difficulties and that this was clearly material to an assessment of his human rights claim. In these circumstances, and particularly given that reference was made to the Presidential Guidance Note No 2 of 2010 in relation to vulnerable witnesses in the skeleton argument, it was incumbent upon the judge to determine whether or not he found the Appellant to be a vulnerable witness and then to make his findings on that basis. That he failed to do.
At [28] the judge held:
"I find they (the mental health issues) are not severe to enough impact his ability to integrate in the sense the expression is explained in Kamara (op cit)"
I find that the judge has failed to provide reasons as to why he has reached his finding, in light of the medical evidence that was before him. This error is clearly material both in terms of the decision that the judge had to make and the context in which the judge had to consider the appeal.
I further find that ground 3 is also made out in that the judge reached adverse findings in relation to the Appellant's ability to function on a day-to-day basis at [28] and in relation to the Appellant's contact with his family at [31] without specifically putting these points to the Appellant in order to give him the opportunity to respond. In the absence of a Presenting Officer I find it was incumbent upon the judge, if he had concerns about aspects of the evidence, that these needed to have been put to the Appellant either directly or through his own representative.
Lastly, I find that the judge's decision to proceed with the hearing in the absence of sight of the previous decision of First-tier Tribunal Judge Boyd gives cause for concern. This is because, as Ms Atas submitted, following Devaseelan that determination was the starting point and also because the findings made by Judge Boyd were clearly material in relation to the human rights aspect of that appeal to the findings that needed to be made in relation to this human rights appeal. I find that the appeal could not be fairly determined given the absence of sight of that previous decision given its materiality and relevance.
For these reasons I set the decision of First-tier Tribunal Judge Hussain aside and remit the appeal for a face to face hearing de novo confined to consideration of the Appellant's human rights appeal, at Taylor House.
Both parties should utilise their best endeavours to make available to the First tier Tribunal and the other party a copy of the decision and reasons of First tier Tribunal Judge Boyd promulgated on 6 October 2014.
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
June 2023