Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/04925/2014

THE IMMIGRATION ACTS

Heard at Columbus House, Newport
Decisions & Reasons Promulgated:
On 21 September 2016
On 18 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE L J MURRAY

Between

N M S
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:
For the Appellant: Mr Neale, instructed by the Migrant Legal Project
For the Respondent: Mr Richards, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a national of Libya. She arrived in the UK on 26 June 2008 and her leave was extended on two occasions until 17 November 2014. She claimed asylum on 25 November 2013. Her claim was refused by the Respondent in a letter dated 1 July 2014 and a decision was made to remove her from the United Kingdom. She appealed against that decision under section 82 (1) of the Nationality, Immigration and Asylum Act 2002. Her appeal was dismissed on 25 September 2014 and she sought permission to appeal against that decision. Permission was granted on 30 September 2014 and her appeal was remitted to the First-tier Tribunal for re-hearing on 2 February 2015. Her appeal was heard and dismissed by First-tier Tribunal Judge Sweeney in a decision promulgated on 12 August 2015. The Appellant sought permission to appeal against that decision and permission was granted by First-tier Tribunal Judge Garrett on 7 September 2015 on limited grounds. On renewal to the Upper Tribunal permission was granted on all grounds by Deputy Upper Tribunal Judge Archer on 12 October 2015.

The Grounds

2. Ground 1 asserts that the First-tier Tribunal failed to take into account relevant evidence in relation to the non-payment of the Appellant's fees. The Appellant's counsel had submitted at the hearing that a key piece of evidence in the Appellant's case was the fact that her fees had not been paid since 2011. It was submitted that this demonstrated that the post-revolutionary Libyan authorities had taken an adverse view of her. It is asserted that the Judge failed to have regard to the evidence adduced at S28 of the Appellant's bundle which demonstrated that as of 2013 the General National Congress was paying fees for Libyan students abroad and was expanding its scholarship programme. Thus the fact that the payment of the Appellant's fees had been stopped was clearly something that called for explanation and was consistent with her being a supporter of the Gaddafi regime. The Judge failed to take into account material evidence and give reasons for accepting or rejecting it.

3. Ground 2 asserts that the Judge had been troubled by typographical mistakes identified by the Appellant's own expert Dr George in two of the documents which the Appellant relied on. The Judge had stated that he preferred the evidence of Dr George over that of Mr Meghrawi, an interpreter and translator who provided a witness statement addressing this issue. However, he did not engage with the substance of the explanations offered by the Appellant for the apparent discrepancies. There was evidence before the Judge that the confusion of the word was one of the most common spelling errors in written Arabic and Mr Meghrawi's evidence was not being relied on as a country expert but as an Arabic interpreter. His evidence was intended to address the prevalence of these types of typing errors in the Arabic language. Judge Sweeney is said to have offered no reason for rejecting this evidence.

4. There was also evidence that Arabic was a language which used masculine nouns in the generic sense as inclusive of women and it was the Appellant's case that it was not surprising that a standard printed pro forma on which the Appellant's name and details had been handwritten would use masculine nouns and pronouns. It is submitted that Judge Sweeney failed to take into account the explanations that were put forward on the Appellant's behalf for the apparent inconsistencies in the documents or give reasons for rejecting those explanations.

5. Ground 3 asserts that the Judge considered the issue of Article 15 (c) relatively briefly at paragraphs 112-120. It is submitted that a very substantial volume of background evidence was put forward by the Appellant, covering the entire period between July 2014 and July 2015 demonstrating that there had been a dramatic deterioration in the security and humanitarian situation in Libya since AT and Others (Article 15 (c) : risk categories) Libya CG [2014] UKUT 00318. It is submitted that whereas the Upper Tribunal in AT had been presented with a situation in which the internationally recognised government was in control of Tripoli and its airport, the situation had since radically changed. A coalition of militias called the Dawn of Libya had seized Tripoli in August 2014 and there were two rival governments. There was intense fighting in many parts of the country between rival forces and forced displacement on a very large scale. The Judge had not referred to any of the evidence or taken it into account. It was the task of the Judge to form an assessment of the facts based on the evidence before them. If Judge Sweeney considered that it was not open to him to depart from the country guidance unless he had up to date expert evidence he misdirected himself in law.

6. Ground 4 asserts that the First-tier Tribunal failed to undertake a proper best-interest analysis under Article 8 ECHR in respect of the Appellant's daughter. He noted that she was 6 years old and that her focus was on her parents. He failed, it is asserted, to take into account the country information concerning the risk of indiscriminate violence and sufficiently take into account her length of residence.

The Rule 24 Response

7. The Respondent argues that the First-tier Tribunal Judge directed himself appropriately and that the grounds are mere disagreements with the findings. It was not an error of law to follow extant country guidance and the Judge gave careful consideration to the best interests of the child.

The Hearing

8. Mr Neale added to the grounds of appeal. With regard to Ground 1 there was country evidence that people had been deprived of scholarships. The Judge said that there was no witness evidence and no other evidence to the effect that their fees were being paid. However, there was evidence that in 2013 that there was a programme at S28 to 29 of the Appellant's bundle. He failed to have regard to this piece of evidence. There was clear evidence that the tuition fees were paid. If he had considered that evidence it would be another matter and he had overlooked and failed to engage with that evidence and he was obliged to state that and give reasons for those findings.

9. With regard to Ground 2, the key feature was the authenticity of the documents. Mr Meghrawi's evidence was adduced to give evidence about the factual points. Dr George said that one of these documents was written using male pronouns. It was a pro forma and Dr George asserted that there were male pronouns that were used in the hand-written part. Dr George was wrong about that and Mr Meghrawi was performing his function as an interpreter. He confirmed that no part of the hand-written part was male. Dr George had a GSCE in Arabic. At A61 and 62 of the old bundle were details in hand-writing in the main body of the letter the two components which were hand written. If you looked at each entry surrounded by dots none contained any male pronouns or the word "brother".

10. There were two other aspects which had not adequately been dealt with. Mr Meghrawi had said that the default position was to have a document in the masculine. Male pronouns were used inclusively. It was within Mr Meghrawi's expertise. The Judge was not required to take his word for it and there was an academic argument at paragraph 15 of the skeleton argument. The third point related to a different document. There was a typing error and the issue was that this was common place in an internal document, an internal committee minute. There was also further evidence at paragraph 15 at S3 of the Appellant's bundle. The approach the Judge took was wrong and he was not asked to choose between two experts. On those three key factual points Mr Meghrawi was well within his factual competence and those points were backed up. Reading a document and seeing what was contained was by definition the task of an interpreter. These were significant issues to tip the balance.

11. Ground 4 concerned the assessment of the best interests of the child. She had not completed 7 years of residence and that would have to be considered at the remitted hearing. Sending a child back to a warzone was relevant to best interests.

12. Mr Richards agreed that there was a misdirection in relation the country evidence. He submitted that the best interests of child should be looked at afresh in the light of current circumstances. There was no material error in respect of the credibility findings. With regard to the issue of the non-payment of fees there was nothing wrong in the Judge's logic in finding that at there was no evidence to show that the Appellant's fees had been withdrawn for political reasons. The Judge pointed to the submission on behalf of the Appellant and yet this Appellant's fees were withdrawn in 2011 and in those circumstance there was no evidence to persuade him even on the lower standard. There could not have been direct evidence from Libyan authorities and it was for the Judge to come to the conclusion in the round and whilst the Appellant may disagree with the conclusion it was within the range of findings open on the evidence and revealed no material error of law. On the second issue and regarding the conflict in evidence the Judge never made the mistake of finding that Mr Meghrawi was placing himself in the position of a country expert but he was none the less giving expert evidence of another kind and the Judge found at 72 that it was not appropriate to attach significant weight to his views. What the Judge was effectively being asked to do was consider the evidence of an expert and give significant weight to the majority of the evidence of the expert but disregard one or two potentially significant parts of the evidence. It was highly unusual to produce evidence and asked for some of it to be believed and some not. Things might have been different if Dr George was asked to put in a supplemental report stating that he was mistaken. But Dr George was experienced and well-known and weight was given to it and the Judge could not be criticized for so doing. The credibility findings were free from error of law and ought to be preserved and that the matter ought to go back to First-tier Tribunal specifically for the consideration of the Article 15 (c) issue and on no other basis.

13. Mr Neale replied that with regard to the second ground he identified the three factual propositions, two of those he accepted were opinion evidence. However, Mr Meghrawi's opinion was also backed up by background evidence in the supplemental evidence. He was not obliged to accept that but he did not engage with it and did not appear to appreciate that it was before him. This items were all referenced and foot-noted in the skeleton argument. He needed to look at where the evidence was independently corroborated. The third issue was whether the hand-written evidence contained masculine pronouns. Mr Meghrawi was competent to undertake that task and express an opinion and it was clear that he was right just looking at the document. Dr George was factually wrong which undermined the document. The report was out of date as it was before Judge Creswell. The fact was that his assessment of the credibility of the documents was premised on a factual mistake and Judge Sweeney was not entitled to ignore that.

Discussion and Findings

14. In the light of Mr Richard's agreement that there was a material error of law in the treatment by the First-tier Tribunal of the country evidence this matter must be remitted to the First-tier Tribunal for rehearing. The Appellant had argued that the First-tier Tribunal should depart from the extant country guidance of AT and Others (Article 15 (c) : risk categories) Libya CG [2014] UKUT 00318 because since the Upper Tribunal considered the evidence in that case there had been a dramatic deterioration in the situation in Libya. In DSG & Others (Afghan Sikhs: departure from CG) Afghanistan [2013] UKUT 00148 the Upper Tribunal held that the First-tier Tribunal had justified a departure from country guidance, which was permitted to be done according to the Practice Direction 12.2 and 12.4 and the UT (IAC) Guidance Note.

Practice Direction 12.2 and 12.4 state as follows:

"12.2 A reported determination of the Tribunal, the AIT or IAT bearing the letters 'CG' shall be treated as an authoritative finding on the country guidance issue identified in the determination, based upon the evidence before the members of the Tribunal, the AIT or the IAT that determine the appeal. As a result, unless it has been expressly superseded or replaced by any later 'CG' determination, or is inconsistent with other authority that is binding on the Tribunal, such a country guidance case is authority in any subsequent appeal so far as that appeal:-

(a) relates to the country guidance issue in question; and

(b) depends upon the same or similar evidence.

12.4 Because of the principle that like cases should be treated in like manner, any failure to follow a clear, apparently applicable country guidance case or to show why it does not apply to the case in question is likely to be regarded as grounds for appeal on a point of law."

In the Upper Tribunal Immigration and Asylum Chamber Guidance Note 2011 No 2, at paragraph 11, it is stated:

'"If there is credible fresh evidence relevant to the issue that has not been considered in the country guidance case or, if a subsequent case includes further issues that have not been considered in the CG case, the judge will reach the appropriate conclusion on the evidence, taking into account the conclusion in the CG case so far as it remains relevant."

And at paragraph 12:

"Where country guidance has become outdated by reason of developments in the country in question, it is anticipated that a judge of the First-tier Tribunal will have such credible fresh evidence as envisaged in paragraph 11 above."

15. In AT the Upper Tribunal considered the country evidence up to November 2013. At paragraph 112 the First-tier Tribunal noted that no expert evidence had been adduced by the Appellant demonstrating that, if returned to Libya, she would be at risk due to the armed conflict. The First-tier Tribunal found at paragraph 113 that it was not possible or proper on the basis of the background documentation alone and in the absence of expert evidence addressing the nature, extent and currency of such alleged risk, to conclude that the situation in Libya had changed so dramatically since the above country guidance case that he should depart from the same. The Appellant relied on evidence up to July 2015 and I accept that evidence was fresh and credible as envisaged by the Practice Direction. Expert evidence was not required and the Judge in requiring the same and failing to have regard to the evidence submitted by the Appellant materially erred in law in respect his consideration of the risk under Article 15 (c). It follows also from this that the best interest analysis under Article 8 ECHR was also flawed because it failed to take into account the risk of indiscriminate violence.

16. The Respondent argues that the credibility findings should stand and be preserved. I have firstly considered the issue of the First-tier Tribunal's findings on the authenticity of the documents relied on by the Appellant. The First-tier Tribunal had before it the report of Dr George, an acknowledged country expert, at pages A11-56 of the Appellant's bundle. He concluded, albeit with the caveats that he noted at paragraphs 26 to 29 of his opinion, that the Appellant's testimony was plausible and stated that in his view, on the basis of her testimony, if she was returned to Libya she would be at real risk because of her actual or perceived past involvement with the Revolutionary Committees. Paragraphs 26 to 29 of the report addressed scanned copies and translations of three letters and a memorandum. Dr George recorded that there were aspects of three of the documents which troubled him. Firstly, a letter dated 15 March 2000 approving the Appellant's appointment as a Teaching Assistant at Tripoli's Al-Fateh University included a significant grammatical error in the name of the Libyan State. The word al-udma ("Great") in the state's name had been misspelled as there were two dots under the final letter in the word which should not be there. Dr George did not consider it likely that Libyan official agencies would make such an error. Further, the letter dated 7 May 2000 referred to the Appellant as 'brother' and throughout used masculine forms. Further, the memorandum dated 9 September 2002 was addressed to 'military passports'. Dr George could not state that there was no such agency, but he had not before heard of such.

17. The Appellant sought to deal with these matters by producing a letter dated 18 February 2015 from Mohamed Meghrawi, an Arabic Interpreter and Translator. He examined the documents and the comments of Dr George who he mistakenly thought was the Home Office expert. He provided an explanation for the misspelling in the word "Great" and the use of the masculine pronoun. The explanation he offered in relation to the misspelling was that the two different letters in question had exactly the same body but one was written with two dots underneath. With the two dots it became "yay" pronounced 'i' or 'iy' instead of an "alif maqsoura" pronounced 'a' or 'aa'. He states that it is important to note that the dotted "yay" at the end of the work was only introduced to the MWA (modern written Arabic) in the last 2-3 decades with the introduction of computer based word processing and that when written at the end of the word is still written without the two dots in all handwritten standard Arabic and in most printed material. It is, he says, therefore more important to write the main body of the letter correctly but the dots are much less significant when that letter is placed at the end of the word. In short, "yay" at the end of the word should not have any dots and is only used for the sake of "extra" clarity. He states that in this case the composer of the letter seems to be using the dotted "yay" indiscriminately and that this is not an uncommon spelling mistake simply because either of habit or poor use of Arabic keyboard or simple lack of knowledge or a combination of those. He says that it is evident that this is the case in this letter because the composer makes exactly the same mistake in a much more commonly used three-letter proposition at the end of the last sentence of the letter. This explains that the composer simply uses one form for both letters for ease of use habit. He also adds that the words are composed on a word processor and no headed paper was used. He states that it was an internal document within a low ranked office of the Revolutionary Committee offices and not meant to be read by external users.

18. In respect of the use of the masculine forms, he states that the letter is a template where it is generally composed in the standard masculine pronouns and the clerk simply produces photocopies and fills in the blanks with name/dates/etc using hand-writing. These types of templates usually require the form-filler to add one letter by pen to change pronoun from female to male but in most cases no one takes the time to do that.

19. The First-tier Tribunal rejected the evidence of Mr Meghrawi for the following reasons. Firstly, Mr Meghrawi was expressing an expert opinion and not giving factual evidence. Secondly, there was no evidence of his qualifications or what experience he had to entitle him to give expert evidence on this issue justifying placing reliance on his comments. Thirdly, his letter did not contain the expert's declaration of truth or state that he recognised his duty in expressing his views to the court. Fourthly, the Appellant was asking him to prefer the evidence of one of her own expert's over another without oral evidence and in circumstances where Dr George had not been afforded the opportunity to address or comment. He concluded that he preferred the evidence of Dr George and accepted that concerns did arise in relation to the authenticity of the letters. Particularly, he was concerned that Mr Meghrawi was expressing views that the letter of March 2000 was an internal document and there was no basis on which he had shown he had the expertise to make that comment. Further, there was no evidence as to the basis on which Mr Meghrawi expressed his view and the experience and expertise he possessed that enable him to comment on the practice of changing the pronoun from male to female.

20. The First-tier Tribunal was undoubtedly correct to reject the opinion offered by Mr Meghrawi that the letter of March 2000 was an internal document and that there was the practice of changing the pronoun on templates. Mr Meghrawi had not demonstrated his expertise to be entitled to comment on these matters. What was not disputed however, was that Mr Meghrawi was a translator for Language Services UK Limited and that notwithstanding the absence of a statement of truth or declaration he could comment on matters relating to translation. The information he provided in relation to the misspelling was also supported by other evidence produced by the Appellant and not referred to in the decision of the First-tier Tribunal. The Appellant relied on an extract from a book called "Introduction to Arabic Natural Language Processing" Morgan and Claypool Publishing, 2010 at 1-6 of her bundle. At page 3 it is said that the most common spelling errors in Arabic involve Hamzated Alifa and Alif Maqsoura/Ya confusion. These errors are said to affect 11% of all words. Further, the letter of 7 May 2000 is translated at A61 and the original is at A62. I think it is fairly clear from looking at the original that, as Mr Meghrawi asserts, the letter is a template and some details have been filled in by hand. Mr Meghrawi was of course clearly qualified to say that the masculine words were part of the template. Dr George does not in fact represent himself to be an expert in the Arabic language and does not comment on the use of the masculine pronoun, except to point out that of course the Appellant is a woman. The information from Mr Meghrawi's in respect of the use of the masculine pronoun is therefore not in conflict with that of Dr George but explains its usage. I therefore consider that the First-tier Tribunal erred in treating the evidence of Mr Meghrawi as conflicting with Dr George's evidence and rejecting it in its entirety particularly in view of the fact that there was also independent support for the prevalence of the misspelling identified. I conclude that the failure to give any weight to the contents of Mr Meghrawi's statement was a material error as it was a key factor in rejecting the Appellant's account.

21. I do not however, consider that the First-tier Tribunal's lack of reference to the document at A28 of the Appellant's bundle in relation to scholarships for Libyan students was a material error of law. That document is dated May 2013 and states that funding would start for 40,000 Libyan students but it does not necessarily impact on the question of why the Appellant's fees had been stopped in 2012.

22. The remaining findings on credibility are well reasoned and were clearly open to the First-tier Tribunal on the evidence. However, in the light of my conclusion as to the finding on the reliability of the documents those credibility findings cannot stand as it is the Judge may have reached a different conclusion had he attached some weight to the explanations given for the discrepancies in those documents. Consequently I preserve no findings.

Conclusions:
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.

I set aside.

I remit the matter to the First-tier Tribunal for re-hearing.

Anonymity

The First-tier Tribunal made an order and I continue that order (pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008). Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his 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.

Signed Dated

Deputy Upper Tribunal Judge L J Murray