Tribunal decisions

The decision

The Upper Tribunal
(Immigration and Asylum Chamber) Appeal number: AA/03913/2015

THE IMMIGRATION ACTS

Heard at Stoke
Decision & Reasons Promulgated
On February 21, 2017
On February 28, 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE ALIS

Between

MISS M A S E E S
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Holt, Counsel, instructed by Sentinel Solicitors
For the Respondent: Mr Bates (Senior Home Office Presenting Officer)

DECISION AND REASONS

1. The Appellant is a citizen of Sudan. On September 16, 2013 the appellant arrived in the United Kingdom and was granted entry in accordance with her visa. On December 4, 2013 she applied for asylum. The appellant was not interviewed until February 1, 2015 but following that interview the respondent refused her application on February 26, 2015 under paragraph 336 HC 395.

2. The appellant appealed that decision under section 82(1) of the Nationality, Immigration and Asylum Act 2002 on March 9, 2015.

3. Her appeal originally came before Judge of the First-tier Tribunal Clarke who allowed her appeal on asylum grounds in a decision promulgated on November 5, 2015. The respondent appealed that decision and Deputy Upper Tribunal Judge Garratt found there had been an error in law and set aside the decision and remitted the case back to the First-tier Tribunal for a de novo hearing.

4. The appeal came before Judge of the First-tier Tribunal Pullig (hereinafter referred to as the Judge) on September 14, 2016 and in a decision promulgated on October 11, 2016 the Judge dismissed the appellant’s appeal on all grounds.

5. The appellant lodged grounds of appeal on October 27, 2016 submitting the Judge had erred in applying the country guidance decision of IM and AI (Risks-membership of Beja Tribes, Beja Congress and JEM) Sudan [2016] UKUT 00188 (IAC).

6. Permission to appeal was refused by Judge of the First-tier Tribunal Saffer on November 8, 2016.

7. Permission to appeal was renewed and Upper Tribunal Judge Plimmer granted permission to appeal on December 12, 2016. The respondent filed a Rule 24 response dated January 9, 2017 opposing the permission.

8. The matter came before me on the above date and the parties were represented as set out above.

9. I extend the anonymity order under rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698 as amended).

SUBMISSIONS

10. Mr Holt adopted his colleague’s grounds of appeals and submitted the Judge had misapplied the country guidance decision and had therefore reached the wrong conclusion. The Judge accepted that the appellant was connected to Popular Congress Party (PCP) as well as other aspects of her claim that she had been detained once and required to sign a document before she was released. Mr Holt submitted the Judge made this finding for two reasons:

a. Her own activities.
b. Her association to her brother who was more actively involved with the PCP as secretary to the student wing of the PCP.

11. Mr Holt submitted the appellant therefore had an enhanced risk because of her association to her brother. He submitted that the Judge misapplied headnote 2 of IM and the Judge’s approach in paragraph [119] of her decision conflicted with her finding in paragraph [90] of her decision.

12. Mr Bates submitted that Mr Holt’s interpretation of paragraph [90] differed from what he believed the Judge meant. The Judge concluded in paragraph [90] that the appellant was detained due to her own activities and because she was her brother’s sister but she was detained primarily because of her own activities. The Judge clearly distinguished between the appellant’s brother’s situation and hers because the Judge noted she had only ever been detained once and then she was released with 24 hours whereas her brother played a more significant role and continued to be detained. The Judge then worked through the evidence and applied the country guidance case law and found she would not be at risk.

13. Mr Holt argued the fact there were two interpretations of paragraph [90] supported his claim there was an error in law and he invited me to allow the appeal.

DISCUSSION AND FINDINGS

14. When hearing the appeal in the First-tier Tribunal the Judge accepted large parts of the appellant’s claim including her claimed role and detention.

15. Permission to appeal was granted because Upper Tribunal Judge Plimmer found it arguable there may have been inconsistent findings and therefore misapplication of the country guidance decision. Permission to appeal was also given on the basis the Judge may have speculated in paragraph [118] of her decision.

16. Mr Holt and Mr Bates presented submissions which invited me to look at the Judge’s approach in paragraphs [90] and [113]. Mr Holt submitted the Judge’s findings were inconsistent whereas Mr Bates argued they were not. Mr Holt submitted that if I accepted his submission then he would argue that the Judge wrongly applied the country guidance decision.

17. I have reviewed all of the evidence placed before the Judge along with the Judge’s decision, grounds of appeal, respondent’s response and the oral submissions.

18. This was a detailed decision in which the Judge, conscious this was a remitted decision, carefully examined evidence and made clear findings.

19. The Judge accepted she was detained once (what she claimed) and had been required to sign a document before she was released whereby she agreed to desist from her activities. The Judge also accepted that her connection to her brother, a more high profile member of the PCP, was also a factor in her arrest.

20. In deciding whether I accept Mr Holt’s submission I find it necessary to have regard to all of the Judge’s findings together as against picking out one or two lines of the decision.

21. The Judge accepted her arrest was due to her own actions and because of her links to her brother but from paragraph [91] onwards the Judge examined all elements of the claim. The Judge considered her claim to have been under surveillance but for the reasons given in paragraph [91] the Judge rejected her claim to have been under surveillance. The Judge specifically distinguished her activities from those carried out by her brother and concluded that she was not under surveillance.

22. In paragraph [92] the Judge again pointed out that her activities did not continue to mean she was of interest to the authorities whereas her brother’s activities clearly did.

23. At paragraph [95] the Judge noted that release after short detention and being made to a sign a document was consistent with the background material and was also consistent with her being a low level supporter. This situation should be compared to her brother’s.

24. The Judge then considered her brother’s role and concluded that her brother was what he claimed to be and was “very active”.

25. Mr Holt’s submission is that by accepting she was connected to her brother meant that she faced an enhanced risk of persecution.

26. The country guidance case makes it clear that it is a matter of individual factual case assessment in every Sudanese case whether an individual has a well founded fear of persecution. Headnote 2 of IM states-

“The evidence draws a clear distinction between those who are arrested, detained for a short period, questioned, probably intimidated, possibly rough handled without having suffered (or being at risk of suffering) serious harm and those who face the much graver risk of serious harm. The distinction does not depend upon the individual being classified, for example, as a teacher or a journalist (relevant as these matters are) but is the result of a finely balanced fact-finding exercise encompassing all the information that can be gleaned about him. The decision maker is required to place the individual in the airport on return or back home in his community and assess how the authorities are likely to re-act on the strength of the information known to them about him.”

27. The Judge found this appellant was not under surveillance and had only been arrested and detained once. The Judge distinguished the appellant from her brother and went to great steps to point out their different situations.

28. The Tribunal requires the Judge to carry out a balanced fact-finding exercise and assess how the authorities are likely to re-act on the strength of the information known to them about her.

29. This is exactly what the Judge did in his decision. The Judge went through all of the evidence as it affected the appellant and her brother. The Judge was clearly conscious of the effect a connection to her brother may have on his decision. He concluded the appellant’s political activity was not particularly great and did not bring her to the attention of the authorities beyond her one short detention.

30. The Judge considered the case law between paragraphs [116] and [118] and applied the case law to the findings made.

31. I am satisfied that the Judge considered the appellant’s role and her brother’s role and concluded that she was not at risk because the evidence showed she was not of any interest. Whilst there may be two ways of reading paragraph [90] that merely demonstrates a disagreement with the Judge’s eventual conclusions.

32. The Judge applied the case law correctly and gave reasons why the brother’s case did not have any real bearing on the appellant’s case.

33. Consequently, there is no error in law.

DECISION

34. The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law. I uphold the original decision.

Signed Dated 11 January y

Deputy Upper Tribunal Judge Alis

TO THE RESPONDENT
FEE AWARD

I make no fee award as I have dismissed the appeal.

Signed: Dated: 11 January y

Deputy Upper Tribunal Judge Alis