Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: AA/03498/2015

THE IMMIGRATION ACTS

Heard at Birmingham
Decision & Reasons Promulgated
On 27th January 2017
On 17th March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE MAHMOOD

Between

secretary of state for the home department
Appellant
and

STJN
(ANONYMITY DIRECTION MADE)
Respondent

Representation:
For the Respondent: Mr J Dixon of Counsel acting via Public Access basis and Pro Bono
For the Appellant: Mrs A Aboni, Senior Home Office Presenting Officer

DECISION AND REASONS

ANONYMITY DIRECTION
As was the case at the First-tier Tribunal, I make an anonymity order. Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any members of her family. This direction applies to both the Appellant and Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

1. The Secretary of State appeals with permission against the decision of First-tier Tribunal Judge Pooler sitting at Stoke-on-Trent. For ease in following this decision I shall continue to refer to STJN as the Appellant. She had appealed against the Secretary of State’s decision to remove her from the United Kingdom as an overstayer subsequent to the refusal of her application for asylum.

2. The Judge of the First-tier Tribunal had allowed the appeal based on Article 8 of the European Convention on Human Rights.

3. The Secretary of State’s ground of appeal is headed as being one ground of appeal. Namely that the Judge had misdirected himself. In the body of the document encompassing the grounds it was contended that the Judge had erred as:

(1) There was no representative at the hearing for the Secretary of State. “The Judge accepted without demur that the appellant should in no way be held to account for her deceptive conduct”. This related to the Appellant having abandoned her asylum claim at the hearing;
(2) “The appellant’s (sic) now claims that she was ‘advised in essence’ to lie in support of her (apparently entirely or substantially bogus) asylum claim”;
(3) The case of BT (Former Solicitors’ alleged misconduct) Nepal [2014] UKIAT 00311 applied. The Appellant should not have been found credible;
(4) “The appeal appears to have been allowed on the findings that the appellant has a fairly close relationship with her adult sister and minor nieces who live in the UK”. It was said that this was not sufficient and that the matters supporting the alleged family circumstances were no more than whereas the Appellant had admitted lying to bolster her claim;
(5) There was no adequate consideration or reference to the Immigration Rules.

4. Permission to appeal was granted by First-tier Tribunal Judge Page.

5. At the hearing before me Mrs Aboni said she relied on the grounds of appeal. The Judge at the First-tier Tribunal had misdirected himself. The Appellant had indicated that she had lied in her asylum claim and that she no longer wished to rely on it, yet the Appellant was found to be broadly credible. There was some documentary evidence about a complaint she claimed to have made about her former solicitors. The Judge, despite evidence indicating denial of the allegations, appears to have given the Appellant the benefit of the doubt that she was more likely than not to be credible. The Appellant may have been misled but she provided lies in her asylum claim. It was accepted that it was the fault of the Secretary of State for not fielding a presenting officer at the hearing before the Judge, but the allegation of misconduct may have been considered further.

6. The Judge had made an error in attaching weight to the Appellant’s evidence when she had admitted using deception. There was a failure to give adequate reasons. The Judge had allowed the appeal based on the close relationship with the family. It was conceded at paragraph 19 that the Immigration Rules could not be met. There was an error in respect of the consideration of Article 8. S117B was referred to. There were errors in the determination and it should be remitted for re-hearing.

7. Mr Dixon said that he relied on his Rule 24 Reply. The Appellant had given an explanation. She had been advised to make an asylum claim. She had complained about those representatives and her complaint was before the Judge. It was clear that the Judge dealt with matters in a careful and cautious manner. As for the case of BT what was required was an opportunity to respond. Although the asylum claim was not formally withdrawn until the hearing, the complaint was in 2015. Mr Dixon also referred to the family dynamics. At paragraph 33 there was reference to a relationship with a qualifying child. The Rules were not met, but Article 8 was considered in terms of proportionality. Mr Dixon amplified his Rule 24 Reply further during his oral submissions. He said that there was no error of law and that I should uphold the Judge’s decision.

8. In her reply, Ms Aboni said that the response from the previous representatives may not be genuine. I was taken to the complaint. There were serious allegations. The OISC were not informed of any complaint. As for section 117B(6) the Appellant cannot come within it. The Appellant does not have a parental relationship. There were adverse factors such as her lack of immigration status and that she was prepared to use deception.

9. I had reserved my decision.

10. I say from the outset that it was most unfortunate that the Secretary of State was not represented at the hearing before the First-tier Tribunal. I note from the Tribunal’s file that a standard letter was sent by the Home Office to the Clerk of the Tribunal that because of staffing issues and the like that no representative would attend and that the Reasons for Refusal Letter was relied upon. The First-tier Tribunal Judge who heard this case is very experienced but even then, to leave the task of understanding and dealing with the Respondent’s anticipated questions/concerns/issues in an asylum claim added to which there were relatively complex private and life matters was simply wrong.

11. I have perused the Judge’s Record of Proceedings and I note that he made good and appropriate enquiries in respect of the expert report. Indeed, he went as far seeking details from Mr Dixon in respect of the expert’s qualifications which were then submitted to the Judge in writing after the hearing. There is no doubt that there was probing and testing of parts of the Appellant’s case during the hearing.

12. The Respondent’s central complaint though, albeit set out in a rather convoluted single ground of appeal, relates to the abandonment of the asylum claim but with no consequent or real effect on the Appellant’s credibility. I have considered this in some detail and have perused the Tribunal’s file with some care.

13. Before the Judge, the Appellant gave evidence. She had adopted her witness statement which she had signed and dated on the morning of the hearing. At paragraph 2 of that witness statement she said in summary that she wished to retract all documentations and statements made to the Home Office about her asylum claim. That was because the representative who had assisted her at PT Law Associates advised her wrongly and that he was neither a credible lawyer, nor a credible church pastor. He had told her to deny knowledge of her parents and siblings in Zimbabwe.

14. It would appear from the Record of Proceedings that there were no questions put to the Appellant, be that by the Judge or by Mr Dixon. Whilst that would not be unusual of itself, in a case such as this where the central feature was a complete change in respect of the protection claim, it was appropriate for there to have been some oral evidence of this and perhaps even probing. I note that the Appellant’s sister was asked questions during the hearing. I am well aware that it is not for the Judge to have entered the arena in respect of the task of the Respondent, but where there is such a change in the whole tenor of the case, it was appropriate for the huge change to be canvassed specifically with the Appellant.

15. The Judge dealt with the issue of the withdrawal of the asylum claim at paragraphs 12 and 17. It is right to say it is fairly brief.

16. The Judge referred to the complaint made by the Appellant against her former legal representatives. Those documents appear at section 4 of the original bundle before the First-tier Tribunal. The Appellant’s complaint dated 16th November 2015 was responded to by PT Law and Associates the next day on 17th November 2015. Ms Aboni said that this was a suspicious document because it was not on a letterhead, was unsigned and appeared to be a file copy. I was not prepared to permit this be explored at this stage because the issue had not been raised previously, albeit the letter does indeed appear to be a file copy of a letter which would not usually be available to the Appellant as it was sent by her former representatives. It was not the Appellant’s own internal file copy document. I do not hold this against the Appellant and it is not a factor that has weighed in my ultimate decision.

17. The former representatives explained, by apparently attaching a client confirmation letter, their fees, the qualifications of the adviser and the like. According to the letter, the legal adviser is indeed a qualified immigration lawyer authorised to give immigration advice, as he put it, “to the highest level 3”. It was said that this was well articulated to the Appellant and it was signed by the Appellant and she had understood it. The letter then set out in some detail that it was the Appellant alone who had gone to her interview with the Home Office. There are long references to what the Appellant had said at the interview when the representative had not been present. These included matters such as the specific fear the Appellant had in Zimbabwe, whether she could seek to live in an area such as Bulawayo and where her family were and when she last had contact with them. The letter states, “I vehemently deny that I did any misconduct, misrepresented my qualifications or gave you wrong advice. I gave you correct advice and all options available to you including returning to Zimbabwe and you chose to claim asylum, which unfortunately was not successful and. It now appears you are looking for a scapegoat to blame.”

18. There followed a few months and the Appellant then sent a further letter of complaint dated 5 February 2016. The Appellant said, amongst other things, that the adviser had always sought to meet with the Appellant, “behind closed doors and any official documents you made me sign….”.

19. I have considered the notes of the interview that took place at the Home Office on 11 February 2015. The Appellant did indeed attend without legal representation. She was interviewed from 9.35am to 11.25am with a break. She said she was feeling comfortable for the purposes of the interview. She answered some 75 questions for the main part of the interview with other questions about her personal details separately. She was also said to be “ok” at the end of her interview.

20. In my judgement, it is quite clear that the Appellant gave sophisticated and detailed answers in respect of her claim for asylum and why she was in need of protection. She also set out that she had no real idea where her family members were. When asked at the end of the interview whether she had more to say, she did.

21. In my judgment, although I agree with Mr Dixon that the Respondent’s ground of appeal that the Judge “had to” find the Appellant an unreliable witness was putting it far too high, there was more to what was required. It was incumbent upon the Judge to deal with these matters in much more detail. It is trite that the losing party should know why it lost. It is also trite that the burden of proof remains on the Appellant throughout in a case such as this. That is even so if the Respondent is not represented at the hearing. As I have indicated, the Respondent’s failure to attend the hearing in a protection claim is most unfortunate. However, that did not permit there to be any less scrutiny of the Appellant’s about face in respect of her protection claim.

22. I have concluded that three factors are of particular significance which required to be dealt with in much more detail. If not at the hearing during questions to the Appellant, then at least in the decision itself. Firstly, it does not appear that the Appellant herself was the subject of any direct questions at the hearing, save for preliminary matters relating to adopting her witness statement. That was important in a case such as this because the allegations she had made were serious. Secondly, the complaint that the Appellant had made about her former legal representatives, at least on 17th November 2015, had been responded to and there was a lot of detail as to why the problem was of the Appellant’s own making. Namely that she had lied to the Home Office at the interview. Thirdly, the Appellant had attended the interview alone without her legal adviser. I have considered that interview and in my judgment, there was a sophisticated story put forward by the Appellant during the very many questions asked of over some two hours.

23. It was for the Appellant to explain how she was able to go along with this deceit. It was not merely a question of “why” she had done so. In my judgment, there was a clear need for her credibility as a whole to be assessed in view of the manner and type of deceit the Appellant had said she had entered into. She had signed documents with the Home Office with clear warnings to ensure their accuracy and truthfulness. She has been in the United Kingdom for some many years now and has achieved GCSE type certificates. She lives, at least in part, with her British family. This was not a young vulnerable child being tricked into making a false claim for asylum. It is clear that the Appellant provided a detailed and sophisticated story but which was apparently totally fabricated.

24. In the circumstances, the Respondent has made out her ground of appeal that the Appellant’s new case therefore required much more scrutiny before being accepted as the correct version, namely that she was put up to it by her former legal advisor.

25. I have in mind the test for appeals and the case of Greenwood (No2) (Para 398 considered) [2015] 00629 (IAC) namely that perversity or irrationality is required. In my judgment, the task of the Judge was made singularly more difficult by the failure of the Home Office to be represented before him. However, in my judgment properly directed on the issue of credibility there should have been a much more detailed analysis and scrutiny of the Appellant’s volte-face.

26. I have considered whether I can separate the findings in respect of the Article 8 issues. Having reflected on the matter, it is quite clear that the credibility findings are dependent upon accepting the truth was told about the family circumstances in the United Kingdom and, to a lesser extent, also in Zimbabwe. I note the references to the children of the Appellant’s siblings, and I note the expert report, but in the end, the foundation for those findings also rested on credibility.

27. I have been slow to reach these conclusions because I had little sympathy for the way in which the Respondent had drafted the rather difficult to follow grounds of appeal and indeed because it appeared that the situation was of the Respondent’s own making by the failure to be represented at the First-tier Tribunal. Having reflected on the matter though and after spending time going through the documents in more detail following the careful submissions of both parties, I conclude that it is inescapable that the Judge did materially err in law in respect of his credibility findings. That thereby infects the whole of the decision.

28. I have decided that the best venue for any further hearing is at the First-tier Tribunal. There will be a complete re-hearing. None of the current findings shall stand. Further directions shall follow from the First-tier Tribunal.

Notice of Decision

There was a material error of law in the decision of the First-tier Tribunal.
The Secretary of State’s appeal against it is allowed.
The decision of the First-tier Tribunal is set aside.

An anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Mahmood