Tribunal decisions

The decision

IAC-AH-CJ-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/01272/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 16 March 2017
On 6 April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE LATTER

Between

Roshdy Mahmoud Mohamed Abdelsalam Gassar
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M Shrimpton, Legal Representative
For the Respondent: Mr A Melvin, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal by the appellant against a decision of the First-tier Tribunal dismissing his appeal against the respondent’s decision made on 6 March 2015 to give directions for his removal following the refusal of his application for leave to remain on asylum and humanitarian protection grounds.

Background
2. The appellant is a citizen of Egypt born on 1 September 1986. He first entered the UK on 12 May 2008 having travelled through Turkey and Poland. On arrival he was served with notice that he was being treated as an illegal entrant. On 16 June 2010 he applied for a residence card as the spouse of an EEA national and this was refused on 17 December 2010 on the basis that it was a sham marriage. He made further applications on a similar basis in 2013 and 2014 and they were both refused. He claimed asylum on 14 July 2014 and this application was refused on 8 January 2015.
The Hearing before the First-tier Tribunal
3. At the hearing before the First-tier Tribunal the appellant pursued his appeal on asylum and humanitarian protection grounds on the basis firstly, that he had evaded military service in Egypt and would be at risk on return of imprisonment in conditions which would be in breach of article 3 and secondly, that he was in fear of the Muslim Brotherhood. He had been a member and had attended but then escaped from one of their training camps. He had then told his father who told him to stay away from the group. Later, he was taken to see a Sheikh and was threatened because he had told his father about his involvement and he was then told that he could not leave the Muslim Brotherhood. He spoke to his father’s cousin about this as he worked for the police. He claimed that the police arrested two of his friends and they were interrogated and forced to provide information about the Sheikh. As a result, his house was ransacked and his father beaten up, the attackers telling his father that the appellant would be killed.
4. The judge dismissed the appeal. She found the appellant would not be at risk from the Egyptian authorities. She noted his evidence that he had been to the Egyptian Consulate to obtain a new passport so that he could marry in this country. She did not find it credible that the Consulate would have issued him with a passport if he was wanted for evading military service. She also noted that the appellant had said that he was asked to do military service at the age of 20 when the background evidence indicated that the age of conscription was 18 to 30 and that voluntary enlistment was possible from the age of 16.
5. The background evidence also showed that after the age of 30 military evidence was not required. The judge then said that if the appellant was punished for evading military service this did not amount to ill-treatment by the Egyptian authorities such as to engage the Refugee the Human Rights Convention. The evidence indicated that refusal to perform military service was punishable by a year’s imprisonment and a fine but there was no evidence before her that prison conditions amounted to inhumane and degrading treatment such as to put the UK in breach of its obligations.
6. So far as his fear of the Muslim Brotherhood was concerned, the judge did not find it credible that the Brotherhood would want to recruit the appellant who had been reluctant to join them given their emphasis on loyalty. She summarised her findings as follows:
“56. The burden of proof lies on the appellant albeit to a low standard and I find that the appellant has not discharged this burden. I find that the appellant has provided evidence that he is [not] at risk of persecution in Egypt because he is wanted by the Muslim Brotherhood. I also find that the appellant will not [be subject to] inhumane treatment on account of his possible evasion of military service. I find that he is an economic refugee and his refugee claim is his last desperate attempt to remain in this country.”
When [56] is read in the context of the decision as a whole it is clear that there are two omissions (added in square brackets and italics in the above quotation), the first in the second sentence where “not” is omitted and in the third sentence a number of words are missing between “not” and “inhumane”. The sentence should read “I also find that the appellant will not be subject to inhumane treatment …”
7. The judge also heard the appeal (IA/10589/2015) by the appellant against the decision refusing him a residence card as confirmation of his right to reside in the UK as the spouse of an EEA. This appeal was dismissed, as the judge was satisfied that the respondent had demonstrated to the required standard that the appellant’s marriage was a marriage of convenience. Permission to appeal against this decision was refused.
The Grounds of Appeal and Submissions.
8. In the grounds of appeal it is argued in the first ground that the judge made a number of factual mistakes including spelling and typographical errors which raised issues as to whether she had understood the facts of the case or given it the appropriate consideration it deserved. It is further argued that the errors were such that it amounted to procedural unfairness. The second ground argues that the judge made irrational findings of fact about the appellant’s claim that he had been accused by the Muslim Brotherhood of giving information to the authorities: [49] and [50]. The third ground argues that the judge erred when she said at [53] that there was no evidence before her that the prison conditions in Egypt amounted to inhumane and degrading treatment, the grounds referring to paras 2.7 of the COI Report on Egypt May 2015. The fourth ground argues that the judge was inconsistent in her findings and particularly in [56] where she said the appellant had provided evidence that he was at risk of persecution in Egypt because he was wanted by the Muslim Brotherhood.
9. Permission to appeal was refused by the First-tier Tribunal. The application was renewed to the Upper Tribunal adopting the previous grounds and also arguing that the factual errors indicated that the decision maker had failed to grapple with the facts of the case when seeking to reach a fair decision on substance. The grounds refer to the delay in time from the hearing of the appeal and the making of the decision as contributing to the numerous spelling, typographical and factual errors and point out that two decisions were issued on 17 June 2016 and 18 July 2016 but they still failed to address or amend the errors. They refer to MM (Unfairness; E & R) Sudan [2014] UKUT 105 on the issue of procedural unfairness amounting to an error of law and argue that the key question was whether an appealable error of law could arise through no fault on the part of the judge.
10. Permission to appeal was granted by the Upper Tribunal in relation to the asylum appeal but refused in the appeal on EEA grounds. In granting permission, UTJ Coker said:
“1. The typing and spelling errors by the First-tier Tribunal do not arguably materially affect the outcome of the appeal although they do indicate a less than careful checking by the judge of her decision. Of more significance is the finding by the judge that the appellant is at risk from the Muslim Brotherhood. It may be that this is a typographical error which should be corrected under the slip rule but no application for such correction has been made.
2. The grounds assert that the judge failed to take account of the background material before her in connection with prison conditions. She asserts there is no evidence that prison conditions reach the article 3 threshold but she has not engaged with the evidence that was before her. That combined with the carelessness in her proof reading and her mistakes in her final conclusions may, just, amount to arguable errors of law.”
11. At the hearing before me Mr Shrimpton argued that the errors in the decision indicated a lack of care and whilst they may be due to a failure to proof-read the decision the number of errors were such that they gave rise to a lack of confidence in the decision as a whole. He submitted that the judge had failed to consider the evidence about prison conditions in Egypt and her assertion that there was no evidence that the conditions amounted to inhumane and degrading treatment was clearly wrong in the light of the background evidence. The fact remained that the judge had on the face of the decision made a positive finding in [56] that the appellant was at risk of persecution in Egypt because he was wanted by the Muslim Brotherhood. No correction had been made under the slip rule. It therefore remained a positive finding and the judge should have gone on to consider whether the authorities in Egypt could protect the appellant from the Muslim Brotherhood.
12. Mr Melvin submitted that there was a clear typographical error in [56], the contents of the rest of the decision clearly indicating that the judge had meant to say that there was no risk of persecution from the Muslim Brotherhood. He submitted that the question of prison conditions did not arise in circumstances where the judge had found that the appellant would not be at risk on return as a draft evader as the evidence showed that he could return once he was 30.
Assessment of Whether the First-tier Tribunal Erred in Law
13. I must assess whether the First-tier Tribunal erred in law such that the decision should be set aside. In the first ground it is argued that the various spelling and typographical errors identified in para 1g are such that they indicate that proper care was not taken in assessing the appeal and that there has been procedural unfairness. The grounds refer to MM (Unfairness; E & R) Sudan and both the grounds to the First-tier and to the Upper Tribunal argue that the key question is whether on appeal an error of law can arise through no fault on the part of the judge but this is not an issue which arises in this appeal and, indeed, Mr Shrimpton did not pursue that argument. He did, however, argue that the cumulative effect of the mistakes was such that it diminished confidence in the decision.
14. However, the mistakes are essentially clerical errors and without more they do not amount to an error of law. I agree with the comment made by Judge Coker when granting permission that the typing and spelling errors do not arguably materially affect the outcome of the appeal. Unfortunate though these errors are, they do not in themselves amount to an error of law. So far as the purported finding in [56] that the appellant had provided evidence that he was at risk of persecution in Egypt because he is wanted by the Muslim Brotherhood, it is clear from the decision when read as a whole that this is not what the judge intended to find.
15. I was referred to the Tribunal decision in Katsonga (Slip rule; FtT’s general powers) [2016] UKUT 228 where the Tribunal held that the slip rule in the First-tier Tribunal Procedure Rules could not be used to reverse the effect of a decision. In that appeal when setting out the decision the judge said that the appeal was allowed on human rights grounds when it was clear that it was the intention to dismiss the appeal. The Tribunal said at [9] that the power in the slip rule could not be used to change the substance of a judgment or order because the judge could use the slip rule only to make his original meaning plain rather than change his original decision. In the present case, the error in [56] and indeed the other typing errors in the decision could have been corrected under the slip rule.
16. I am also not satisfied there is any substance in ground 2 relating to the assertion that the judge made irrational findings of fact when analysing the evidence about whether the appellant was suspected by the Muslim Brotherhood of giving information to the authorities. The judge’s findings and reasons on that issue were properly open to her for the reasons she gave. The only part of ground 4 which relates to inconsistencies in the asylum and humanitarian protection appeal is the purported finding in [56] that the appellant was wanted by the Muslim Brotherhood. As I have already indicated I am satisfied that this was a clerical error and that the judge in fact made the opposite finding as is clear from what she said in paras [46]–[51].
17. The third ground argues that the judge failed properly to assess the issue of prison conditions in Egypt. On this issue I am satisfied that the judge did err in law. It was not correct to say that there was no evidence that conditions in Egyptian prisons breached article 3 when there was evidence in the COI Report on Egypt May 2015 that was at least capable of supporting such an argument. That evidence should have been considered when assessing prison conditions and if not accepted, the judge should have explained why. This error, however, is only material if there was evidence to support an argument that the appellant was at real risk of imprisonment. In [51] the judge said that she did not find it credible that he would have asked the Egyptian authorities to renew his passport if he was in fear of them or that they would have granted the passport even if he was a draft evader but at [56] she said that she found the appellant would not be at risk of inhumane treatment on account of his possible evasion of military service.
18. The reference to “possible evasion” fails to make it clear what finding the judge was making about whether the appellant had evaded military service. In [53] the judge said even if he was punished for such evasion this would not amount to ill-treatment by the Egyptian authorities such as to engage the Refugee or the Human Rights Convention. This is correct so far as the Refugee Convention is concerned as draft evasion in itself does not amount to a Convention reason but the reason the judge gave for the Human Rights Convention not being engaged was that there was no evidence to believe that the prison conditions amounted to inhumane and degrading treatment whereas, as I have already indicated, there was evidence capable of supporting that finding.
19. Accordingly, the judge’s finding on the issue of prison conditions was flawed and the fact that the appellant had his passport renewed by the Egyptian authorities, whilst relevant to the issue of whether he evaded the draft, is not determinative. The background evidence, for example, indicates a procedure whereby a passport will be renewed on payment of a penalty in dollars and that when the evader returns to Egypt he must report to the military service department to settle his status when the fine will have to be paid in local currency and the dollars returned. This might explain how the appellant obtained his renewal but the implication of his failure to return would need to be considered. There was also evidence that after the age of 30 military service is not required on return, but whether a returnee could still face prosecution was not explored in the decision.
20. In summary, there needed to be a clear finding on whether there was a reasonable degree of likelihood that the appellant had evaded the draft and if so, whether he was at real risk of a sentence of imprisonment and whether the prison conditions would be such that there would be a breach of article 3.
21. Accordingly, I am satisfied that the judge erred in law such that the decision should be set aside. Both representatives agreed that if that was the case, the appeal should be remitted to the First-tier Tribunal for a full reconsideration of the asylum and humanitarian protection appeal. For the avoidance of doubt as the appeals turns to a large extent on the appellant’s credibility, the appeal is be reheard in respect of his claimed fear of both the Egyptian authorities and the Moslem Brotherhood.

Decision
22. I am satisfied that the judge erred in law such that the decision should be set aside. The appeal is remitted to the First-tier Tribunal for reconsideration by way of a full rehearing by a different judge.

Signed H J E Latter Date: 4 April 2017
Deputy Upper Tribunal Judge Latter