The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/01153/2012


Heard at Bradford
Determination Promulgated
On 25 March 2013
On 7 June 2013









For the Appellant: Mr Salmon, Bradford Law Centre
For the Respondent: Mrs Pettersen, a Senior Home Office Presenting Officer


1. The appellant, MK, was born on 2 May 1969 and is a male citizen of Togo. The appellant had appealed to the First-tier Tribunal (Judge Shimmin) against the decision of the respondent dated 19 January 2012 to refuse him leave to enter the United Kingdom having refused his claim for asylum. The First-tier Tribunal dismissed the appeal and the appellant now appeals, with permission, to the Upper Tribunal.
2. Granting permission, Judge Blandy wrote:
“The grounds of the application draw attention to the rather unusual nature of the appellant’s claim, namely that he was guilty of serious misconduct in Togo such that he was excluded from the right to protection under the Refugee Convention by virtue of Article 1F of that Convention, but nevertheless argued that he was at risk on return treatment contrary to Article 3 ECHR because of what he had allegedly done. It is argued the judge was inconsistent as to whether the appellant’s account with regard to the core of his claim, namely his misconduct, was true. It is also argued the judge erred in law with regard to his treatment of the medical evidence. I do find the grounds to be arguable. There is arguably a material inconsistency between the findings of the judge in paragraph 32 and his overall finding that the appellant lacked credibility in paragraph 50 of the determination. Furthermore with regard to the medical evidence, whilst a report of Dr Lord dated 19 August 2011 might not have been entirely consistent with the Istanbul Protocol a later report of 30 January 2012 arguably clarifies her opinion by reference to that Protocol and I consider it is arguable that the judge did not give sufficient grounds for appearing to disregard her evidence as to the consistency between the injuries and the appellant’s account. I accordingly find all the grounds to be arguable.”
3. As the grounds note, the appellant,
“claims to have committed what in any civilised country would be a serious criminal offence – burning down a number of houses (hutnents) belonging to another ethnic group, the Kabye, against whom he was resentful. He was also unclear as to whether people could have been killed in the fires concerned.”
The grounds assert that the judge’s findings regarding this central part of the appellant’s account of past events in Togo was unclear. At [32], the judge wrote this:
The respondent also submits that when questioned on what he did to the Kabye village in 2003 he stated, "We set fire to their houses". When questioned whether anyone was injured or hurt he stated "No. Whether there was somebody in the houses I do not know" and "… there must have been because when there is such a file people tried to throw water on it because there is houses are made of straw. People always get injured." In the appellant's statement dated 12 August, 2011 he states in relation to the village fire that "I would like to clarify that when we went there the houses were all unoccupied. The only people living in Kantsikope were Kabyes. The men were out at the field at the time. I never saw any women or children myself. Some may have fled when they grew aware we were setting fire to the houses." The respondent considers this to be inconsistent with his claim at interview that there must have been people there as people throw water on the fires as houses are made of straw. I find that the appellant has been ambiguous from the start as to whether anyone was hurt. That ambiguity has continued. He seems to be saying that he does not know if anyone was hurt but speculates that there were not. Then he says there may have been some injuries to people attempting to put out the fires. I do not find there is lack of credibility on the part of the appellant but in an attempt to give the full picture he has indulged in speculation and has not expressed himself clearly.

4. The grounds draw attention to the fact that, having indicated at [32] that the he did “not find there is a lack of credibility on the part of the appellant but in an attempt to give the full picture he has indulged in speculation and has not expressed himself clearly” the judge had nonetheless found that the appellant had failed to prove to the required standard of reasonable likelihood that any of the facts he alleges are true apart from his claim to be of Togo citizenship and of Ewe ethnicity. It was submitted that the reasoning of the judge was unclear and inconsistent.
5. Mrs Pettersen, for the respondent, argued that there was no error of law. She submitted that, at [32], the judge was simply assessing that part of the evidence which he had discussed in that paragraph (the burning of the houses) whilst his conclusions at [50] had been drawn not only from his assessment of that part of the evidence but also from the remainder of the appellant’s evidence which he discusses at [33-47]. The judge’s comments at [32] were in the nature of the judge “thinking aloud” and making observations as he went through the evidence item by item. His considered conclusion had been that, whilst some of the evidence may have been true, the appellant had proved himself to be generally an unreliable witness.
6. I have no doubt that the judge’s findings of facts could have been better expressed. However, I agree with Mrs Pettersen that, upon reading the entire determination, there is no real inconsistency with what the judge says at [32] and the findings which he makes subsequently in the determination. What the judge is, in effect, saying at [32] is that the appellant’s claim to have set fire to the houses was not in itself incredible but contains an element of speculation (for example, as to whether anyone was hurt in the fire). Mrs Pettersen’s submission is given support by the fact that the next paragraph [33] begins with the words “The appellant then claims that after setting fire to the houses he went to live in the fields for two to four days [my emphasis]”. The use of the word “then” indicates to me that the judge was, as he was required to do, examining the evidence item by item and that his comments at [32] did not constitute a final assessment of the appellant’s credibility as the grounds of appeal assert. It could be said that the judge quite fairly in his analysis finds that the appellant’s account was prima facie credible but subsequently concluded (having examined, in particular, the appellant’s immigration history in the United Kingdom) that nothing which the appellant had said (other than his claim to Ewe ethnicity and Togo nationality) could be regarded as reliable.
7. Mr Salmon submitted that the judge had failed to take account of the fact that the appellant had cast himself in a bad light (by claiming to have set fire to the houses) and that he would not have done so had he been lying. I find that the judge was aware of that very point when, at [48], he wrote:
“I also take into account and weigh in the balance in favour of the appellant the argument that if the appellant was not telling the truth he would not have included in his account information which put him in a bad light, namely the arson attack on the village.”
8. It was open to the judge to find that the plausibility of parts of the appellant’s account and the “bad light” point raised by Mr Salmon were insufficient, having considered the evidence as a whole, to lead him to conclude that the appellant was a credible witness.
9. The grounds also allege that the judge erred in his assessment of the expert evidence of Dr Lord. There was no merit in the argument that the judge has ignored Dr Lord’s supplementary report of 30 January 2012 (which confirms her compliance with the Istanbul Protocol) as the judge makes specific reference to that supplementary report at [39]. Dr Lord had found that the scars on the appellant’s body were in some cases “highly consistent” with the appellant’s account of ill-treatment in Togo. She found that the scars on the backs of the appellant’s legs “were unlikely to be due to accidental causes.” At [45] the judge writes “Mr Salmon argues that the report of Dr Lord is so strong that the appellant’s injuries cannot reasonably be said to have been caused by any way other than he describes. I do not agree.” The judge goes on to note that the non-accidental injuries could have been suffered “in a fight with persons other than the Togo authorities” and notes possible accidental causes of other injuries. I find that there is nothing in Dr Lord’s report which compels the conclusion (as Mr Salmon appeared to argue) that the appellant’s injuries could only have been caused in the manner he described. The judge noted the high degree of consistency between the appellant’s account and the injuries as recorded by Dr Lord but I find that the judge has been careful to assess Dr Lord’s reports as part of the totality of the evidence (I find that there was no suggestion here of the expert evidence being considered by the judge only after making negative credibility findings – see Mibanga (2005) EWCA Civ 367). In other words, it was open to the judge to conclude that the appellant’s account was untrue notwithstanding the contents of Dr Lord’s reports.
10. Finally, the grounds assert that the judge failed to make a finding as to whether or not the appellant had set fire to houses in Togo. I find that ground has no merit. The judge’s conclusion (that no part of the appellant’s account had been credible) is sufficient to deal with all parts of that account, including his claim to have committed arson in Togo; there was no need for the judge to make a separate finding on that issue.
11. In the circumstances, I find that the First-tier Tribunal did not err in law such that the determination falls to be set aside.
12. This appeal is dismissed.
Date 30 May 2013

Upper Tribunal Judge Clive Lane