Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/02845/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 2nd June 2016
On 20th June 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE R C CAMPBELL

Between

[F B]
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Jafar (Counsel, instructed by Queens Park Solicitors)
For the Respondent: Ms A Brocklesby-Weller (Senior Home Office Presenting Officer)

DECISION ON ERROR OF LAW

1. The appellant's appeal against a decision to remove him from the United Kingdom was dismissed by First-tier Tribunal Judge Flynn ("the judge") in a decision promulgated on 25th August 2015. The appellant claimed to be at risk on return to the Gambia, as a person of interest to the authorities there. The judge's primary findings were that the appellant had not shown that he was involved in any political protest until after he returned from the Gambia in late 2013, that the country evidence did not show that the authorities attempted to trace everyone photographed at anti-government demonstrations held abroad, that there was no evidence to show that the Gambian authorities were able to do this and, overall, that the appellant was not a credible witness. He was not a refugee, not entitled to humanitarian protection and would face no real risk of ill-treatment on return, in breach of Article 3 of the Human Rights Convention.

2. An application for permission to appeal was made on the basis that the judge had erred in her assessment of the country evidence and failed to apply guidance given in YB (Eritrea) [2008] EWCA Civ 360. The judge also erred in giving weight to what she described as a significant discrepancy between the appellant's account and evidence given by his father.

3. Permission to appeal was refused by a First-tier Tribunal Judge and, following renewal, by an Upper Tribunal Judge. Following a further application to the Administrative Court in a judicial review of the Upper Tribunal's decision to refuse permission to appeal, permission (in the judicial review) was granted by Sir Andrew Collins on 8th February 2016. Following that order and the quashing of the decision of the Upper Tribunal to refuse permission to appeal, on 16th March 2016, permission to appeal was granted by the Upper Tribunal on 14th April 2016.

4. In a rule 24 response from the Secretary of State on 3rd May 2016, the appeal was opposed on the basis that the judge directed herself appropriately and made sustainable adverse credibility findings. The grounds amounted to a disagreement with the overall outcome.

5. In directions made subsequently, the parties were advised that the Upper Tribunal would first consider whether the decision of the First-tier Tribunal contained a legal error, such that the decision should be set aside.

Submissions on Error of Law

6. Mr Jafar said that the judge accepted that the appellant had attended anti-government demonstrations, held in the United Kingdom, and that the photographs taken of him and others were placed on the internet. This was clear from paragraph 23 of the decision. A Google search showed that the photographs had been viewed many times. The judge's finding in paragraph 44 of the decision that there was no substantial evidence that the authorities attempted to trace everyone who attended anti-government demonstrations and nothing to show that they were able to do so was unsustainable. Important guidance was given by the Court of Appeal in YB and the country evidence contained in the Operational Guidance Note which was before the judge, published in January 2014, showed that the authorities of the Gambia did indeed seek to monitor activities abroad. It was clear that individuals who publicly or privately criticised the government or the President risked reprisals and at paragraph 3.17.15, it was clear that those perceived as political opponents were subject to threats and monitoring while outside the Gambia. In 2011, the Justice Minister said that Gambian dissidents who portrayed the country in a negative light while abroad would be prosecuted on return. Amnesty International obtained a letter which appeared to show that Gambian security forces had been ordered to carry out surveillance of twelve citizens living abroad in a variety of countries, including the United Kingdom. Country evidence before the judge also included an article from Jollof News online regarding threats to a Gambian national based in Canada, who was quizzed on return on the basis of photographs taken under cover while he attended a demonstration in Alaska.

7. The appellant had been photographed demonstrating outside the Gambian Embassy and at 10 Downing Street. The judge made a finding of fact that although he was not named in articles in the Gambian press, he could be identified from the photographs. Overall, it was clear that the judge had not applied the guidance from YB.

8. In a second ground, challenge was made to the weight given by the judge to the apparent discrepancy between the appellant's account said and what his father said about making calls to a radio station. This aspect was described by the High Court Judge as troubling in the judicial review proceedings.

9. Ms Brocklesby-Weller relied upon the rule 24 response. The crux of the matter was shown in paragraph 3.17.17 of the OGN. Each case was fact-specific and the judge's approach was compliant with that guidance. There was nothing in the OGN to suggest that everyone who took part in demonstrations against the Gambian authorities was at risk. What was important was the frequency of attendance, a person's motivation and the sophistication of the foreign country's intelligence-gathering system. The judge found as a fact that the appellant could be identified in some of the photographs but he was not named in published articles, as was clear from paragraph 43 of the decision. The judge assessed the perceived risk and found that the appellant was not a genuine activist. She gave cogent reasons for that conclusion at paragraphs 38 to 41 and 42 of the decision.

10. The judge was clearly alert to the country evidence and found that there was nothing suggesting that the Gambian authorities had a sophisticated intelligence-gathering system. The appellant's profile was not high. Cogent reasons were given for the finding that the appellant had not discharged the burden upon him. Merely taking part in sur place activities was not enough to put him at risk. The judge did not find him to be a credible witness, as was clear from paragraph 48 of the decision. He was not someone who would be returned as an activist and he was able to travel to the Gambia in 2013 without difficulty. This was after he had taken part in some demonstrations in the United Kingdom and he was not detained on return.

11. So far as ground 2 was concerned, the appellant said in his asylum interview that he gave his name once when making contact with a radio station in the Gambia and thereafter said on air simply that he was from London. His father had said that the appellant was continually ringing the radio station, which begged the obvious question of how the authorities would have known that it was the appellant calling, if he merely said that he was from London. The judge's conclusion at paragraph 37, regarding the discrepancy, was sustainable. So too were the other adverse findings she made, including the discrepancy about the appellant's claimed political activities in the Gambia.

12. In reply, Mr Jafar said that it was important to distinguish the adverse credibility findings from the assessment of risk that was required in the light of the appellant's appearance in the photographs which the Gambian authorities would come across without any difficulty. There was nothing in the country evidence, including the OGN, that sought to distinguish between levels of activity by those opposed to the authorities. The judge's finding that there was no evidence showing that the authorities of the Gambia were able to trace everyone photographed at anti-government demonstrations was insufficient to safely found the conclusion that the appellant was not at risk on return.

13. Both representatives agreed that if an error were found, so that the First-tier Tribunal's decision fell to be remade, the appropriate venue was the First-tier Tribunal as extensive fact-finding would need to be made in relation to the asylum claim lying at the heart of the appeal.

Conclusion on Error of Law

14. The decision has been prepared by a very experienced judge and contains many careful findings of fact, most of them adverse to the appellant. In his submissions, Mr Jafar focused on guidance given by the Court of Appeal in YB and, in particular, part of paragraph 18 of the judgment in that case. The Court of Appeal, considered the impact of an apparent absence of positive evidence that the authorities of Eritrea had the means and inclination to monitor activities such as demonstrations outside their embassy. Where the Tribunal had before it country evidence which painted a bleak picture of the suppression of political opponents by a named government,

"... it requires little or no evidence or speculation to arrive at a strong possibility - and perhaps more - that its foreign legations not only film or photograph their nationals who demonstrate in public against the regime but have informers among expatriate oppositionist organisations who can name the people who are filmed or photographed. Similarly, it does not require affirmative evidence to establish a probability that the intelligence services of such states monitor the internet for information about oppositionist groups."

15. The real question, as Ms Brocklesby-Weller pointed out, is whether information reaching an embassy is likely to show that a claimant identified in a photograph is a hanger-on with no real commitment to the oppositionist cause.

16. The country evidence before the judge included the OGN which, on any reading, paints a bleak picture of the government's stance towards those opposed to it. What is described there is a repressive political environment, aided by security agencies willing to put into effect government reprisals against those who publicly or privately criticise the government or the President. The OGN also shows that the authorities of the Gambia intend to pursue dissidents who portray the country in a negative light while abroad, seeking to prosecute them on return. The country evidence included the article referred to above from the Jollof News, regarding the questioning of a Gambian national who took part in a demonstration against the government, while present in Alaska. At 3.18.12 of the OGN there is material showing that things became worse in 2013, with the banning of Skype and Viber and a report from a committee to protect journalists that penalties were being applied to individuals living abroad, as well as those living in Gambia.

17. The judge took the OGN into account, as is clear from paragraph 31 of the decision. She found that the appellant was not involved in political protest until after he returned from the Gambia in late 2013 but accepted that he had attended demonstrations since 2014. As Mr Jafar pointed out, the judge accepted that the appellant could be recognised from the photographs. Her overall conclusion that the appellant was not at risk was based in part upon what she described (at paragraph 35) as a significant discrepancy between the appellant's account and the evidence of his father. Sir Andrew Collins took a different view of the discrepancy but, in any event, at its highest it formed part of the judge's reasoning towards the conclusion that the appellant was not a credible witness. As Mr Jafar submitted, however, the adverse credibility findings are insufficient in themselves to determine risk on return. The assessment of that risk must take into account the findings regarding the appellant's attendance at demonstrations since 2014, the fact that he can be identified from the photographs and the country evidence showing the determination of the authorities of the Gambia to pursue those who oppose them.

18. In paragraphs 43 to 48, the judge set out both aspects of her reasoning, finding that the country evidence fell short showing a risk that the appellant would be traced and reverting to the discrepancy in the appellant's account. With some reluctance, I conclude that what is missing here is an application of the guidance given in YB (Eritrea), in the light of the country evidence contained in the OGN. Notwithstanding the absence of the appellant's name from articles associated with the demonstrations, the photographs show a relatively small group of people, beneath and alongside slogans which clearly reveal opposition to the President of the Gambia and the regime in power there. Country evidence clearly shows a determination to pursue those abroad, so that if or when they return, they may be questioned and prosecuted. The obvious inference is that steps will be taken to identify those on demonstrations and in view of the relatively small ex-patriot community in the United Kingdom and the relatively small number of demonstrators, this would not, on any reasonable view, be a particularly onerous task for an embassy or legation.

19. Notwithstanding the characteristic care with which the judge approached her task, I conclude that the grounds in support of the application have been made out and that insufficient account has been taken of the guidance given in YB (Eritrea), undermining the judge's assessment of risk on return, notwithstanding her finding that the appellant was not a credible witness.

20. The decision of the First-tier Tribunal is set aside and will be remade in the First-tier Tribunal, at Taylor House, before a judge other than First-tier Tribunal Judge Flynn.

Notice of Decision

The decision of the First-tier Tribunal is set aside; it will be remade in the First-tier Tribunal on the first available date, at Taylor House. None of the findings of fact shall stand and the decision will be remade de novo.

The judge made no anonymity direction and none has been sought. I make no direction on this occasion.

Signed Date 20th June 2016

Deputy Upper Tribunal Judge R C Campbell