Tribunal decisions

The decision

AB (Witness corroboration in asylum appeals) Somalia [2004] UKIAT 00125

IMMIGRATION APPEAL TRIBUNAL

Date heard: 4 May 2004
Date notified: 3 June 2004

Before

DR H H STOREY (VICE PRESIDENT)
MR A G JEVANJEE
MR M G TAYLOR CBE

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

And

Respondent
Representatives
Ms A Holmes for the appellant; Mr B Lams of Counsel instructed by Shehan Pinidiya & Co Solicitors for the respondent.

DETERMINATION OF APPEAL AND REASONS

1. The appellant, the Secretary of State, has appealed with leave of the Tribunal against a determination of Adjudicator, Mr F E P Meadows, allowing the appeal of the respondent, a national of Somalia, against the decision giving directions for removal following refusal to grant asylum. To avoid confusion the respondent is hereafter referred to as the “claimant”.

2. The Adjudicator accepted that the claimant was a member of a minority clan, the Shansiya Banadari, and was therefore at real risk of persecution. The grounds of appeal argued that the Adjudicator failed to give adequate reasons.

3. The Adjudicator`s reasons were stated as follows:

“10.1. I found the Appellant to be a credible witness. I also found the Appellant witness credible.

10.2. The Appellant’s cousin Ahmed Bashir corroborated a great deal of the Appellant’s evidence. Ahmed Bashir despite what Ms Shocker said in her submissions was able to mention the correct number of siblings, which the Appellant had. He knew about the Appellant’s father’s death. He said that his own father died of natural causes which is what the Appellant had said. He also mentioned his uncle’s restaurant and described the Appellant’s house and the colour of the front room in exactly the same way as the Appellant had done”.

4. We have several difficulties with the Adjudicator’s reasons. First and foremost, he failed to give any reasons that related to the claimant’s evidence as such or indeed to the witness’s evidence as such. He relied simply on the fact that the claimant and his witness corroborated each other’s accounts. In our view that was an error on his part. If A and B concur in their evidence that does not without more prove that they are telling the truth, even under the lower standard of proof. It may be that A and B are telling the truth; equally it may be they are lying. The Adjudicator should have identified something about the claimant’s evidence, other than that it was corroborated, which made it creditworthy.

5. Secondly, and compounding this error, the Adjudicator failed to address the respondent’s very clear challenges to the claimant’s credibility, challenges which had been raised in the Reasons for Refusal letter and repeated in large part at the hearing.

6. One of these challenges was to the effect that the respondent did not consider the claimant’s account of his clan identity and history could be taken at face value, since information relevant to his alleged clan membership was available in the public domain and such knowledge could easily be learnt in order to portray him as a clan member. Given the nature of this challenge, the Adjudicator should have specifically addressed it and indeed should also have addressed whether other aspects of the claimant’s evidence, including the concurrence between the claimant and his witness, could be taken at face value rather than being regarded as the result of coaching. He should have said something to indicate why he did not consider the claimant’s (or his witness’s) account was contrived.

7. Another of the challenges raised by the respondent was that the claimant had not given a consistent or plausible account of what happened to his father’s and uncle’s restaurant business once the Hawiye were said to have taken over. On the one hand the claimant’s evidence was that his father continued to run his warehouse business and his uncle a restaurant business. On the other hand, his evidence was that they both had to work in those businesses “like slaves”. Even if this apparent discrepancy in the evidence was capable of resolution, it was essential for the Adjudicator to address it and state why he considered that the claimant had explained it satisfactorily.

8. A further difficulty was that the Adjudicator did not explain why he considered the witness was to be believed, notwithstanding he was related to the claimant. Obviously, being a relative does not prevent a person from giving truthful testimony, but such a person cannot be regarded as a wholly independent witness and, given the decisive weight the Adjudicator sought to attach to this man’s evidence, it was incumbent on him to explain why he did not consider the family connection lessened the veracity of the account he gave. We are not helped by the Adjudicator`s failure to clarify whether the witness was present during the appellant`s evidence: if the witness had not been present, the fact that his evidence accorded with the appellant`s may have meant it carried more weight. It may be that the Adjudicator, in assessing the witness, attached weight to the documentary evidence showing he had been granted refugee status, although in the absence of further evidence that the grant was made on the basis of the witness being from the Shansiya tribe that may have added little. On all these matters we simply do not know what was in the Adjudicator`s mind.

9. A final difficulty we have is that the Adjudicator in paragraph 10.3 appeared to think it relevant to the risk the claimant had faced and would face that he had described himself at one point as “white-skinned”. However, in the asylum interview the claimant had said that a Hawiye person would not be able to tell his clan origin just by looking at him.

10. Mr Lams sought valiantly to persuade us that we should read paragraph 10.2 as cogent and sufficient reasons for the Adjudicator’s positive credibility findings. However, we were not persuaded by any of his submissions. His submissions did identify a number of reasons that may have been in the mind of the Adjudicator, but these were no more than speculation. The fact is proper reasons were not given. We do not consider that it can be implied from the Adjudicator’s earlier rendition of the evidence that he carefully weighed all the relevant matters. As a consequence we consider that his principal findings of fact are unsafe.

11. We would add a comment on the growing practice of appellants and/or their representatives adducing letters granting refugee status to someone who is (or is said to be) a relative or colleague. All too often it is assumed such letters magically prove that the person concerned was granted refugee status on the basis he says he was. All too rarely are such letters accompanied by documents confirming on what basis the person concerned actually claimed asylum or, if an appeal was involved, on what basis the Adjudicator allowed that person`s appeal. Since such additional documentation should often be still available to the person concerned or to that person`s solicitors, Adjudicators should consider what weight they can attach to refugee grant letters when they are not accompanied by confirmatory documents of this kind.

12. For the above reasons and in accordance with the provisions of Rule 23 of the Immigration and Asylum Appeals (Procedure) Rules 2000, the appeal is allowed to the extent that it is remitted to be heard by an Adjudicator other than Mr F E P Meadows.

DR H H STOREY
VICE-PRESIDENT