Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA066722015

THE IMMIGRATION ACTS

Heard at Glasgow
Determination issued
on 6 June 2016
On 10 June 2016

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

REMZIA BADULA IDRIS (or HANNA IBRAHIM)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

For the Appellant: Mr A Dewar, Advocate; Peter G Farrell, Solicitors

For the Respondent: Mrs M O'Brien, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant presently identifies herself as Remzia Badula Idris, born on 4 January 1989, a citizen of Eritrea. She appeals to the Upper Tribunal against a decision by First-tier Tribunal Debra Clapham, promulgated on 4 April 2016, dismissing her appeal against refusal of recognition as a refugee.
2. The appellant's grounds of appeal are quite lengthy. In essence they are as follows.
(i) At paragraph 43 the judge criticised the appellant for giving very little detail of her life in Saudi Arabia, and at paragraph 44 for giving further information about why she was deported to Eritrea. This approach is inconsistent and structurally flawed.
(ii) The judge erred in fact about the information the appellant had given, failed to state what further information she should have given, failed to consider the nature of the questioning of the appellant (at interview), and raised matters which the appellant had not been asked to address. This ground is developed under the following headings:
(a) Criticism over lack of detail of life in Saudi Arabia. The interview record is set out, from Q/A 52 to 69 and 72 to 78. The appellant gave further information about Saudi Arabia in her witness statement, in particular at pages 4, 5 and 6. It was an error of fact to describe this as "very little detail". The judge failed to give the case the most anxious scrutiny.
(b) Detail about marriage. The appellant confirmed her marriage at her second screening interview. At substantive interview she answered questions about her marriage. She gave further information in her witness statement at page 9 paragraph 34. She had thus given details about the date and length of the marriage and reasons for separation. It was incumbent on the judge to refer to this information and to give the case the most anxious scrutiny.
(c) Information about parents and father's death. The appellant said at Q/A 15 that her mother died when she was 2 years old. The judge should not have expected the appellant to provide details of a woman of whom she had very little memory. The judge overlooked this fact. The judge said at Q/A 28 that her father was taken away by soldiers in 2000 when she would have been 11 years old. She confirmed this information at the hearing. She was asked nothing further. She confirmed that in her witness statement. The judge failed to consider the paucity of the questions relating to the appellant's father. The judge criticised her for giving very little information about him, and also for giving further information when she was asked. This was an inconsistent and fundamentally flawed approach.
(d) Information relating to Ethiopian passport. The appellant was criticised for being unable to explain how she obtained a visa to Saudi Arabia and how she obtained an Ethiopian passport, subsequently renewed. Reference is made to Q/A 22, 29, 34-36, 39, 40, 41, 46 and 54. The appellant had said that passports were obtained illegally through agents in both Sudan and Ethiopia who engaged in corruption. The matter was arranged by her aunt when she was a child. Although she was a child a passport was obtained for her in an adult identity as they were told it was difficult to obtain a passport for a person "under age". The judge accepted that forged passports could be obtained. The criticism [by] the FtT was "wholly inadequately reasoned".
(iii) There was more than adequate information before the judge to accept that in terms of her knowledge, language and claimed history, the appellant had shown to the lower standard that she was Eritrean. Reconsideration was sought.
3. Mr Dewar adopted the grounds in full, and submitted that the essential complaint was that the judge failed to consider some significant adminicles of evidence at all, and failed to give proper consideration to others. There was a detectable lack of anxious scrutiny. On a fair reading of the decision, the judge adopted an inconsistent approach, criticising the appellant both where she failed to provide information and where she did so. Although the judge maintained there was a lack of detail, Mr Dewar directed me to the grounds and to the transcript of the interview to demonstrate the appellant provided detailed information and responded to each question asked - points (a) and ( b). On point (c), at Q/A 15 and 28 the appellant explained what happened to both her parents. It was curious to criticise the appellant for failing to give information about a mother who had died when she was aged only 2. What information could have been expected? The criticism was entirely unfair. On point (d), the judge at 43 and 46 of her decision came to scathing conclusions about the obtaining of a passport but again there was a clear explanation provided by the appellant and it was baffling why the judge should have said at paragraph 46 that she was "at a complete loss to understand how [the appellant] managed to obtain an Ethiopian passport which passport was subsequently renewed."
4. Mr Dewar referred to MN and KY v SSHD [2014] UKSC at paragraph 31:
There is another important aspect to cases such as the present. The higher courts have emphasised the special responsibility carried by the tribunals in the context of asylum appeals. It is customary in this context to speak of the need for "anxious scrutiny" (following R v Secretary of State for the Home Department, Ex p Bugdaycay [1987] AC 514, 531 per Lord Bridge of Harwich). As a concept this is not without its difficulties, but I repeat what I said in R (YH) v Secretary of State for the Home Department [2010] 4 All ER 448, para 24:
"? the expression [anxious scrutiny] in itself is uninformative. Read literally, the words are descriptive not of a legal principle but of a state of mind: indeed, one which might be thought an 'axiomatic' part of any judicial process, whether or not involving asylum or human rights. However, it has by usage acquired special significance as underlining the very special human context in which such cases are brought, and the need for decisions to show by their reasoning that every factor which might tell in favour of an applicant has been properly taken into account. I would add, however, echoing Lord Hope [in R (BA Nigeria) v Secretary of State for the Home Department [2010] 1 AC 444, para 32], that there is a balance to be struck. Anxious scrutiny may work both ways. The cause of genuine asylum seekers will not be helped by undue credulity towards those advancing stories which are manifestly contrived or riddled with inconsistencies."
5. Mr Dewar argued that the decision showed a failure to take account of every factor which might tell in favour of an applicant, which amounted to a lack of anxious scrutiny, and so the decision was irrational. If due weight had been given to the evidence in favour of the appellant, the judge would have reached a different conclusion. On a proper reading of the evidence she had shown that she was Eritrean, and had a well found fear of persecution. The appellant had the required knowledge of Eritrea to demonstrate that she is a citizen of that country. The explanation offered by the Secretary of State and accepted by the judge that she could have acquired that knowledge was itself wholly implausible (refusal letter paragraph 24). The decision of the First-tier Tribunal should be set aside and the appeal should be allowed.
6. Mr Dewar accepted my observation that if I were to accept his submission that there had been material error of law, but not to the extent that there could only rationally have been one answer to the case, the outcome ought to be to remit to the First-tier Tribunal for a fresh hearing.
7. The Secretary of State's response to the grounds of appeal under Rule 24 is dated 29 April 2016. It states that it is written without sight of the file, interview records and witness statement. However, it points out that on the face of the decision - paragraphs 26, 31(i) and 42 - the appellant admitted at the hearing that most of what she had told the respondent was a lie. The Tribunal was entitled to base its decision upon that, as well as upon the significant number of differing accounts the appellant had provided. It was notable that the appellant had not been re-examined in light of the significant number of adverse issues which had emerged from cross-examination, particularly her admissions of lying. It was a matter for the judge in light of the submissions for both sides to determine the weight to be given to the appellant's evidence and claims. The judge had given adequate reasons for not finding the appellant credible.
8. Mrs O'Brien relied upon that response, and pointed out that it was plain that the appellant had given entirely different accounts of her identity and history. She had admitted that her previous versions to the Home Office were false. The criticisms made in the grounds of appeal were too narrowly drawn. Looking at the case as a whole, it was easy to see why the judge concluded that the appellant continued to be a stranger to the truth. To labour now the evidence she gave about her life in Saudi Arabia was an attempt to distract from the poor overall case she had put. Even her name and true identity remain a mystery. It was far from unclear why the judge had taken the view of the evidence which she did. The judge's concern was not, for example, about matters the appellant could not have known because she was only a toddler, but about the evolving and changing narrative she advanced. On the matter of the appellant's marriage, the appellant's consistency was to be analysed not only by reference to what she said at her substantive interview but also by what she said at the hearing, admitting she was a false witness, and at her screening interview, when she put forward an entirely different story. She gave different years for her marriage and two different names for her husband. The judge had not referred in her conclusions backwards in detail to all the contradictions in the case, but the decision had to be read as a whole, including the submissions for the respondent at paragraph 31(i) to (v) on why this continued to be a manufactured claim. The appellant now asked for the judge's conclusions to be assessed in particular by what she said at one of her several interviews, but the overall context was wider than that. Once that context was examined it did not show that the appellant had been bound to succeed, but that the judge was entitled to reject her case for the reasons given.
9. Mr Dewar in response said that the submission for the respondent focused on questions of fact, but the overriding issue here was one of law, as exemplified in the citation above. It went too far to say that if the appellant was once an admitted liar, her further story must be false and did not require to examined. Either the judge had applied anxious scrutiny or she had not; and in this case she plainly had not.
10. I reserved my decision.
11. The thrust of the grounds of appeal is that the judge went wrong in finding the appellant's account inconsistent and lacking in detail, putting that conclusion in context of certain of the information she provided. However, the context into which the appellant seeks to put the judge's conclusions is artificially restricted and in truth has to be framed much further.
12. The judge cautioned herself at paragraph 41 about the need to approach issues of credibility with care. The reasoning at paragraphs 41-50 should be read in full, and in context. On that approach, it is plain the judge expressed sensible reasons for finding that the appellant failed to establish the truth of her claims, in their most recent version, even to the lower standard, and that there was no failure in the duty of anxious scrutiny.
13. I see considerable force in the submission by Mrs O'Brien that rather than the decision disclosing any such deficiency, the case fell into the category at the end of the passage which Lord Carnwath confirmed in MM and KY: "The cause of genuine asylum seekers will not be helped by undue credulity towards those advancing stories which are manifestly contrived or riddled with inconsistencies." The judge in this case founded on inconsistencies over such fundamental matters as name, nationality, age, names of the appellant's husband, and whether or not she has a sibling.
14. Although advanced under a heading of legal error, the grounds of appeal resolve into no more than an insistence that the truth of the appellant's latest version of herself should have been accepted.
15. While that is sufficient to dispose of the case, I note that the judge went on to find in the alternative that even if the appellant were Eritrean then given her departure from that country in 2002, well before the critical date of September 2008, and having been found otherwise wholly incredible, it was not to be assumed, applying country guidance, that she would be perceived as having committed any act of disloyalty or would be at real risk of persecution or serious harm on return.
16. The appellant has not sought to tackle these alternative conclusions, by which her appeal would have failed in any event.
17. The determination has not been shown to be affected by any material error of law, and it shall stand.

9 June 2016
Upper Tribunal Judge Macleman