Tribunal decisions

The decision

IAC-AH-sc-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: aa/00224/2016

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 14 February 2017
On 2 March 2017

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

s y a
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Willoughby, instructed by Parker Rhodes Hickmotts, Solicitors
For the Respondent: Ms R Pettersen, a Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant, S Y A, claims to be a citizen of Russia who was born in 1976. He claims to have entered the United Kingdom in 2008 using a forged document. When encountered by the United Kingdom authorities in 2011, he gave his nationality as Czech and he was deported to the Czech Republic in January 2014. He was returned by the Czech authorities on the grounds that he was not a Czech citizen. In 2014, the appellant claimed that he was a Russian citizen and claimed asylum. His application was refused by a decision of the respondent dated 27 January 2016. The appellant appealed to the First-tier Tribunal (Judge Asjad) which, in a decision promulgated on 7 November 2016, dismissed the appeal. The appellant now appeals, with permission, to the Upper Tribunal.
2. There are two grounds of appeal. I shall deal first with ground 2. This concerns the treatment by the judge of the expert report relied upon by the appellant. The report was written by Dr Robert Chenciner. At [14], the judge wrote:
I do not find however that the expert has been given the whole picture about this appellant – he does not appear to have met the appellant in person but instead spoke to him in Russian. He has not been told about the appellant’s claim to be Czech or his other aliases. Importantly, the appellant’s asylum interview or the information he gave therein appears not to be considered either. Whilst the expert comments on the implications of the appellant’s claimed illegal exit, he appears not to have been told that the appellant gave inconsistent testimony about how he exited – on the one hand claiming that he left on the Ukrainian passport and then a Czech passport (2.1, 2.5 screening interview). He has also not been told about the plethora of lies that the appellant has told, his convictions for dishonesty and that he has given contradictory information about his roots in Russia. On balance, I find I can place only little weight on the expert’s evidence notwithstanding his expertise in the matter.
3. The expert’s opinion was that the appellant is “half-ethnic Chechen which would be recognisable to the Russian authorities and the public and which shows in his facial feature (sic)”. The expert considered that the appellant had a “North Caucasian accent”.
4. At [12] the judge concluded that the appellant “is thoroughly dishonest, has a propensity to lie and will fabricate stories depending on the situation he finds himself in. He has no credibility whatsoever.”
5. The appellant asserts that the expert did have “the whole picture”; at page 30 of the expert’s report, the expert had written, “I confirm that in my opinion the context of the statements of the appellant ... is plausible with regards to inter alia: screening ... SEF ... HORFR (sic) ... statement ... HORFR ... witness statement”. The argument advanced by the appellant is that the judge has attached little weight to the expert’s report for an invalid reason, namely that the expert did not have all the documentation before him. The appellant submits that the passage of the report from which I quote above shows that the expert did have all relevant documents. The expert had given his opinion aware of those parts of the evidence which might cast doubt on the appellant’s reliability as a witness of truth.
6. I reject the appellant’s argument. I find, in particular, that the judge was correct to highlight the fact to the expert had failed to address at all parts of the evidence which the judge had found to contain inconsistencies and inaccuracies. Indeed, instead of dealing with those matters in his report, the expert has simply recorded that the written evidence which he had seen supported his finding that the appellant is of Chechen ethnicity. It follows that either the expert has not read the evidence to which he refers in his report or, if he has read it, he has, for reasons which remain obscure, refrained from dealing at all with those parts of it which might challenge the accuracy of the appellant’s account. If for no other reason, the report should have been given little weight because of the failure or refusal of the expert to address these matters.
7. I find, therefore, that the judge’s conclusion that the appellant was a thoroughly dishonest witness should stand. At [15], the judge made it absolutely clear that he did not accept that the appellant was a Chechen Russian. Ultimately, the judge made no finding as to the actual nationality of this appellant, leaving it for the Secretary of State to determine his nationality. To do so involved no error of law. It was for appellant to prove his case (that he was a Chechen Russian) and the judge has found that he has failed to prove that case.
8. In the circumstances, the first ground of appeal falls away. This challenges the judge’s alternative findings at [15] and following as regards the risk on return to Russia if the appellant had been able to establish that he was a Russian Chechen. The appellant complains that the judge’s analysis of the case law concerning prison conditions and illegal exit was flawed. The problem with that submission is that those parts of the judge’s decision are made in the alternative; the judge’s primary (and, I find, entirely sound) finding is that the appellant was not a Russian citizen. The appellant will not be returned to Russia so problems regarding illegal exit from and prison conditions in that country do not arise.
Notice of Decision
9. This appeal is dismissed.
Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 14 February 2017

Upper Tribunal Judge Clive Lane

TO THE RESPONDENT
FEE AWARD

I have dismissed the appeal and therefore there can be no fee award.

Signed Date 14 February 2017

Upper Tribunal Judge Clive Lane