Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/04698/2015

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On Wednesday 19 April 2017
On Thursday 27 April 2017

Before

UPPER TRIBUNAL JUDGE SMITH

Between

MS E N
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J Plowright, Counsel, instructed by Malik & Malik solicitors
For the Respondent: Mr T Melvin, Senior Home Office Presenting Officer

Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
An anonymity order was made by the First-tier Tribunal. This is an appeal on protection grounds. It is therefore appropriate to continue that 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 member of their family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

DECISION AND REASONS

Background
1. The Appellant appeals against the decision of First-tier Tribunal Judge Cameron promulgated on 3 September 2016 (“the Decision”). By the Decision the Judge dismissed the Appellant's appeal against the Respondent's decision dated 22 February 2015 refusing her leave to enter. She appeals on protection and human rights grounds. Following an earlier determination also adverse to the Appellant, the appeal was remitted to the First-tier Tribunal by Upper Tribunal Judge Davey by a decision promulgated on 30 March 2016. That remittal was on protection grounds only. That led to the Decision, again dismissing the appeal on the basis that one aspect of the Appellant’s claim is not credible.
2. The Appellant is a national of Albania. She arrived in the UK in March 2013 with her three children. The core of her protection claim is as follows. She claims that on 21 December 2012, she was raped by three men. Those included a man named SL (anonymised to protect the Appellant’s identity). The Appellant claims that when she told her parents about the rape, her father reported the matter to the police and that she identified SL as the main perpetrator. She claims that her father was threatened by SL to withdraw the allegation but he did not do so. She claims that her father then killed SL as a result of which her father is under house arrest and a blood feud has begun. She has no male siblings and she says that she would be at risk on account of that blood feud or that her son would be at risk.
3. Between the first determination of the First-tier Tribunal dismissing her claim and the Decision, in June 2016, the Appellant produced three documents which she said supported her claim that (a) she had been raped as she contended and (b) that her father had killed SL and had been arrested and was being investigated for the killing. Those documents were said to emanate from a hospital in Albania where the Appellant is said to have been treated following the rape and from the police and prosecution authorities in Albania. The Appellant says that her mother obtained those documents on her behalf and passed them to the Appellant via a friend. That is confirmed by a notarised statement from her mother dated 13 July 2016. Those documents were included in a bundle submitted by the Appellant’s solicitors on 11 July 2016.
4. The Respondent then sought an adjournment of the appeal hearing originally listed on 22 July 2016 in order to verify the documents. By a letter dated 5 September 2016, the British Embassy responded to say that enquiries showed that the documents said to emanate from the police and prosecution authorities are counterfeit and that enquiries made of the hospital indicated that the Appellant had not attended that hospital at any time.
5. Although the letter from the British Embassy was dated 5 September 2016, it was not produced to the Appellant’s solicitors until 1355 hours on 13 September 2016 which is the day before the hearing. Mr Melvin was not able to tell me from the file how or when the letter from the British Embassy was received by the Home Office but, given that the attachments to the e-mail were themselves e-mail attachments, it may be inferred that the letter was sent by e-mail and would have arrived at some point shortly after 5 September 2016 and before 13 September 2016. There is reference in the e-mail of 13 September to an earlier discussion between the Presenting Officer and the Appellant’s solicitor but I have no evidence as to when that discussion took place.
6. The appeal hearing proceeded on 14 September 2016 without an adjournment. I deal below with the submissions made to me about the evidential position as to what occurred on that day.
7. The Appellant appeals the Decision on two grounds which are in fact interlinked. The first is that the Appellant was prejudiced by the late production of the verification report and has therefore been deprived of a fair hearing. The second amounts to a submission that the error of law in that regard is material because it infected the Judge’s findings as to the Appellant’s credibility in particular as to her father’s actions and the blood feud which resulted.
8. Permission was granted by Upper Tribunal Judge O’Connor on 15 December 2016 in the following terms:-
“The late service by the respondent of documents seeking to undermine the core of the appellant’s claim was clearly capable of leading to procedural unfairness. The key issue for the Upper Tribunal is the role that is to be played in the assessment of the complaint of procedural unfairness of the failure by the appellant’s Counsel to either oppose the admission of such documents, or to seek an adjournment so as to enable due consideration to be given to them. The answer to this issue is not at all obvious and, consequently, I conclude that the grounds are arguable.”
9. The appeal comes before me to determine whether there is a material error of law in the Decision and if so to either re-make the decision or remit to the First-tier Tribunal to do so.
10. There is one further factual aspect which I need to record before turning to the parties’ submissions and that concerns the Appellant’s mental health. As recorded at [71] to [76] of the Decision, the Appellant has suffered mental health problems and has from time to time been on antidepressants and has received cognitive behavioural therapy for symptoms of post-traumatic stress disorder. Those medical reports include reference to the Appellant having reported that she had been raped in Albania. At the hearing before the First-tier Tribunal Judge in September 2016 however the position appears from [76] of the Decision to be that she was no longer taking antidepressants and that she had been discharged from the psychotherapy department. Although it is suggested in the Appellant’s statement dated 5 April 2017 (referred to at [14] below) that the Appellant could not receive further therapy for PTSD until she received a final result in her appeal and that she was referred to the Helen Bamber Foundation in March 2017, the Judge’s summary of her mental health condition at the time does not appear to be inaccurate. It was not suggested for example that the Appellant was unfit to give evidence at her appeal hearing and she did in fact give oral evidence.
Submissions
11. Mr Plowright accepted that the legal issue for me is a very narrow one and that is whether the Appellant has been deprived of a fair hearing as a result of the late disclosure of the verification report. He accepted as a matter of fact that no application was made to adjourn the hearing and no application was made to exclude that document from consideration. He noted that the Judge found that the Appellant had suffered a traumatic experience in Albania which could well be a rape but did not accept the core of her claim in relation to the blood feud with the consequence that she was found not to be at risk on return.
12. Mr Plowright was also able to confirm the factual position as to why an adjournment request had not been made. The Appellant accepts that she instructed those advising her that she wished to proceed with the hearing and therefore no application was made.
13. There was a discussion concerning whether the verification report was in fact produced late in terms of being contrary to directions made. I was able to confirm from the Tribunal file that no direction had been made as to when that verification report should be produced. As I have already noted at [5] above, Mr Melvin was unable to confirm how or when the Respondent received the letter from the British Embassy but I have also indicated that I am prepared to infer that the report could have been provided to the Appellant at least a few days before it was. Mr Plowright referred me to a short bundle produced for the hearing which showed that the Appellant’s solicitors had enquired about the verification on 22 July, 22 August and 31 August.
14. Mr Plowright submitted that, notwithstanding that the Appellant had herself made the decision to proceed, there could still be procedural unfairness due to the Appellant being forced to make this decision on the spur of the moment. That was particularly so given the state of her mental health. He accepted that neither the Home Office nor the Appellant’s legal advisers could be said to be responsible for any failure to seek an adjournment given her instructions but argued that, in light of what were accepted to be past traumatic experiences, the hearing was as a result still unfair due to the production of the report late in the day. Although he accepted that, as evidence postdating the Decision, it could not be material to whether there was an error in the Decision, he pointed me to a statement from the Appellant which is, so far as relevant to this issue, in the following terms:-
“[5] I had consulted with my solicitors regarding this matter on the 13th September 2016 and I was in a complete state of shock as was my mother because we never anticipated that we would receive this news especially given that the request for the evidence had been made via the police. My instructions to my solicitors were that the hearing on the 14th September 2016 should proceed as I had no knowledge that the documents could not be relied upon and it was my understanding that the documents were genuine otherwise they would never have been submitted. My solicitors acted in accordance with my instructions.
[6] Given the source of the documents was the police, my mother went into a state of anxiety and depression and she has never recovered. She has not been well enough to make any further enquiries. I have tried many times to request my mother to approach the police and to account for what has happened but she is very unwell and has completely lost faith in the system. She now suffers from panic attacks and blames herself for going to the police in the first place and trusting them. Knowing that these documents went to the heart of my claim, the Home Office failed to give me adequate notice of the verification report which deprived me of a fair hearing as there was nothing I could submit to explain my version of events, not even a witness statement. I was already in a real state of tension and anxiety as was my mother so in a state of confusion and shock, I requested the hearing to proceed. I accept that if I had been in a clearer frame of mind after the hearing that it would have been best for a brief adjournment to allow my solicitors to at least submit a full witness statement from me in response to the verification report of the Home Office. Uppermost in my mind was the fact that my account is genuine, no matter what problems have been faced regarding the documents especially knowing that I was the person to complain to the police when the rape incident occurred. So it would be real injustice to suggest no records exist or that if any records do exist they are false.
[7] Further my case is being funded privately and I was aware that I would not be able to obtain any form of verification report of my own to challenge the Home Office’s report. Even if it would have been possible to obtain the funding of a verification report under legal aid, my current solicitors have been assisting me on a private basis since March 2015 and I do not wish to change my legal representatives as my case has gone through several stages and is at a complex stage. Further my previous solicitors were legally aided and I was not happy with the level of service that I was provided. The real damage that was caused to my case whilst they were acting for me was the loss of a police report which I had obtained in Albania when I reported the rape incident to the police. This was a very important document which was lost at the early stages of my case.”
15. In relation to the materiality of what is said to be the procedural unfairness, Mr Plowright accepted that the falsity of the documents was not the only reason why the Appellant’s account about the blood feud was not accepted as credible but he submitted that the Judge had relied in part on the fact that the documents were not genuine to impugn the Appellant’s credibility and, as a result, the unfairness did amount to a material error. He accepted that the Judge who had determined the Appellant’s appeal on the first occasion had also found her to be not credible in relation to this aspect of the claim.
16. Finally, Mr Plowright confirmed that the Appellant’s claim to be at real risk on return to Albania was based on the blood feud. Specifically, he confirmed that it was not her case that she would be at real risk due to the rape.
17. Mr Melvin relied on the Respondent’s rule 24 statement. The Respondent points out that there is no direct challenge to the assertion that the documents were false. That is not disputed by the Appellant. It is also pointed out that the Judge accepted that the rape probably occurred as the Appellant stated. That was in spite of the hospital letter not being genuine. The Judge did not therefore base his credibility findings solely on the documents. The Respondent also points out that the Appellant has not sought to provide evidence to show that the documents were at least thought to be genuine for good reason. That is no doubt the reason for the Appellant’s latest statement.
18. Mr Melvin amplified on those assertions. He reiterated the factual position as it emerged from the Appellant’s statement and Mr Plowright’s submissions that the Appellant’s Counsel had not sought an adjournment as he was not instructed to do so. There was no submission made to the Judge that it would be unfair to rely on the verification report. In terms of materiality, he pointed out that the documents were not the only reason why the Appellant was not found credible in relation to this aspect of her claim. A number of reasons were given at [95] to [98] of the Decision which would still stand even if the documents were excluded from consideration. In short, the Appellant was not believed in relation to her claim that her father had killed SL and that a blood feud had begun as a result. That would be the finding if the verification report were excluded primarily due to inconsistencies in the Appellant’s claim which would no longer be capable of being supported by the documentary evidence. The latest statement was just an “attempt at fire-fighting”. He submitted that the finding by the Judge that the Appellant was aware that the documents were false was one open to him having heard the Appellant’s evidence. There is no error of law procedural or otherwise.
19. I reserved my decision in relation to whether the Decision contains a material error of law. In discussions about what should happen if I accepted there were an error, Mr Plowright agreed that it would not be appropriate to remit the appeal again in spite of the error being one relating to the credibility findings. The Appellant has now had two opportunities to have her credibility determined in the First-tier Tribunal and the appeal should therefore be re-determined in the Upper Tribunal. He asked however for a further hearing so that the Appellant could give oral evidence.
Discussion and conclusions
20. I can deal with the procedural unfairness issue relatively shortly now that the factual position is ascertained (which it was not when Judge O’Connor granted permission). There can be no suggestion that anyone is responsible for failing to seek an adjournment. It is now clear that it was the Appellant who wished to proceed. She accepts that she was advised in that regard. Obviously, I cannot know what advice was given to her because of legal professional privilege but she does not deny that she understood that if the hearing went ahead it would be on the basis that the documents which she had submitted were not genuine. As I discussed with Mr Plowright, unless the Appellant was not thought capable of giving instructions at the relevant time, those advising her had no choice but to follow her instructions to proceed.
21. Nor can I see any basis for finding procedural unfairness based on the Appellant’s mental health at the time. As I have noted, there has been no suggestion that the Appellant was not in a position to give instructions. No doubt if that had been the case, her solicitors and Counsel would have taken the appropriate steps to seek an adjournment for that reason. Her statement does not in fact suggest that she was in such a state mentally that she did not know to what she was agreeing by giving instructions to proceed. The Judge accepted that the Appellant has undergone a traumatic experience which was probably the rape which she says occurred. As such, the Judge accepted that the Appellant is vulnerable to some extent. Based on the medical evidence which the Judge had before him, however, the summary of her mental health condition at that time is accurate. There was therefore nothing in the evidence which should have given the Judge cause to consider whether it was appropriate to proceed in light of the late evidence. If the Appellant had not had the benefit of legal representation, it might have been appropriate for the Judge to check that the Appellant understood the position in relation to the documents and the report that they were false before embarking on the hearing. That is not though this case.
22. That then disposes of the first ground of appeal. In case I am wrong about that, however, I also deal with the materiality of any procedural error in accordance with ground two. I start by noting that there are two elements of the Appellant’s protection claim – that she was raped and that, as a result of that rape, her father killed one of the perpetrators therefore giving rise to a blood feud from which she and her son would be at real risk on return. The Judge in fact accepted on the lower standard that the Appellant was probably raped ([91]). That finding was in spite of the document on which the Appellant relied being one of those found not to be genuine. In the case of that document, the Appellant must have known that it was not genuine as the hospital said that the Appellant had never been treated there. That demonstrates that the Judge did not base his findings on the falsity of the documents alone.
23. As noted at [16] above, however, Mr Plowright did not submit that the Appellant would be at real risk based on the rape alone. The Appellant does not contend that she remains at risk of further rape. Although her most recent statement refers to a missing document showing that she reported the rape to the authorities which she says is central to her case, that is not in fact the reason why the Appellant is not accepted to be at real risk on return. Her case is that she is at real risk because the rape which occurred some four years ago has given rise to a blood feud in which she and her son are implicated. The central issue therefore is whether her father killed SL and whether a blood feud has resulted.
24. In relation to that element of her claim, the Judge deals with it at [92] to [99] of the Decision as follows:-
“[92] Notwithstanding that I am satisfied to the lower standard of proof that the appellant was raped in Albania it is the appellant’s evidence that this then led to a blood feud arising due to her father killing the principal rapist [SL].
[93] It is submitted on the appellant’s behalf that he comes from a powerful family as although it is stated by the appellant that her father did report the incident no action was taken by the police. It is also submitted that the fact that her father is still in confinement indicates that the [L] family are powerful particularly as they do not come directly from the appellant’s home area but live some 10 to 15 minutes away.
[94] It is clear from the independent evidence that blood views [sic] arise for a number of reasons principally to do with honour between families. They do invariably involve male members although I accept the submissions on the appellant’s behalf that as she was a principal of the alleged offence that she may be caught up within that given that there are no other male members of the family apart from her father and her young son.
[95] It is however the case that the appellant’s evidence that her father then killed [SL] and that he is subject to a police investigation, has been shown to be false. The fact that three documents were submitted purporting to show they came from both the police investigation and the prosecuting authorities and also from the hospital is not something that can be ignored.
[96] I do not accept as credible that the appellant would not know that these documents were false. Her evidence is that she was raped and then attended the hospital and that then a report was made to the police. There is no evidence before me in respect of a report being made by the appellant’s father and clearly her evidence that she attended the hospital has been shown to be false. The appellant must therefore have known that the letters supporting her attending the hospital were false.
[97] I do not find the appellant’s evidence to be credible that her father killed [SL] which then resulted in a blood feud occurring. There is no evidence that her father is under investigation or that he has been placed under house arrest. The evidence presented to support that has been shown to be false and I do not accept that the appellant would not have been aware of that fact. It is relevant to note that the letter from her mother makes no mention of her father being confined to the house or that there is an ongoing police investigation.
[98] There are a number of inconsistencies within the appellant’s evidence which were set out in the reasons for refusal. She has dealt with these in her witness statements however I do note that she has on occasions indicated that [SL] had made threats towards her father notwithstanding that she had stated that her father had killed him and there is also clearly a discrepancy as to who the person was that brought the letters from her mother to this country. The fact that those letters have now been shown to be false is a material factor to be taken into account.
[99] Taking into account all the evidence available I am not satisfied that the appellant has given a truthful account of her experiences in Albania. Although I accept that she must have suffered some form of traumatic event which could well be that she was raped, I do not accept that it happened in the way described by the appellant and in particular I do not accept that her father killed [SL] or that a blood feud has arisen from that alleged killing.”
25. Although I accept Mr Plowright’s submission that the Judge has taken into account the falsity of the documents when finding that this part of the Appellant’s claim is not to be believed, he does so only as one factor. As Mr Melvin submitted, the Judge gives a number of other reasons why the Appellant is not found to be credible, based in large part on her own evidence. Indeed, it is worth noting that she was not believed either on the first hearing of her appeal at a time when the documents were not in existence at all.
26. Further, this is not a case where a Judge hearing the appeal again could exclude from consideration the documents which the Appellant submitted. Of course, that would be with the benefit of further evidence from the Appellant as to the circumstances in which those documents were produced and how they had come to be produced. However, as the Appellant herself admits in her most recent statement, she has no evidence to undermine the verification report that the documents are false other than her own assertion that her mother obtained the documents from the police (with the implication that the police for some inexplicable reason would verify as false a document which they had themselves provided). There is not even a further statement from her mother albeit I note that she says her mother is ill due to the stress of the situation (as to which no evidence is produced). A Judge could not properly exclude from consideration that the Appellant has submitted documents which are false and that fact does not appear to be disputed. In any event, as Mr Melvin submitted and I accept the Judge has considered the Appellant’s evidence that she had no knowledge that the documents were false but has rejected that evidence for reasons given, in particular at [96] of the Decision, for reasons which are unimpeachable.
27. I recognise however that if there were procedural unfairness, this may well undermine the overall fairness of the appeal determination even if the Judge were entitled to reach the conclusions he did for other reasons. If there had been procedural unfairness as contended, therefore, I would not have declined to set aside the Decision for reasons of immateriality of the error. However, for the reasons given at [20] and [21] above, I am satisfied that there has not been any procedural unfairness in this case arising from the late production of the verification report or the Judge’s reliance on that report (and by extension the false documents produced) when reaching his findings on credibility.

28. For those reasons, I am satisfied that the Decision did not involve the making of a material error of law. I therefore uphold the Decision.

DECISION

The First-tier Tribunal Decision did not involve the making of a material error on a point of law. I therefore uphold the First-tier Tribunal Decision of Judge Cameron promulgated on 3 September 2016 with the consequence that the Appellant’s appeal is dismissed.

Signed Dated: 26 April 2017
Upper Tribunal Judge Smith