Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: Aa/07698/2015

THE IMMIGRATION ACTS

Heard at Columbus House, Newport
Decision and Reasons Promulgated
On 7 July 2016
On 03 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE L J MURRAY

Between

N P R P
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Holt instructed by Sutovic & Hartigan
For the Respondent: Mr Richards, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a Sri Lankan national and her daughter, also a Sri Lankan national, is dependent on her claim. The Respondent refused her application for asylum and concluded that returning her to Sri Lanka would not put the UK in breach of the European Convention on Human Rights. The Appellant appealed that decision under section 82 (1) of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act). Her appeal was dismissed by First-tier Tribunal Judge K Watson in a decision promulgated on 14 March 2016. The Appellant sought permission to appeal to the Upper Tribunal and permission was granted on all grounds on 8 April 2016 by First-tier Tribunal Judge Gillespie.
The Grounds
2. Ground 1 asserts that the First-tier Tribunal failed to take into account relevant evidence, namely evidence of the Appellant's Christian beliefs. It is asserted that the Judge quoted selectively from the Appellant's interview in concluding that the Appellant was not evangelical. It is asserted that the Appellant said in oral evidence that she could not remember if there were problems with the interview and that in her witness statement at paragraphs 22 and 23 she provided an explanation for what she meant and that the Judge had no regard to this evidence. It is also said that the Judge made no reference to the Appellant's detailed account of her evangelism in her witness statement. It is further said that the appeal was premised on the explicit concession by the Respondent that the incidents alleged had occurred to the Appellant's husband as a result of his preaching as an evangelical Christian which logically would have to incorporate a concession he was an evangelical Christian which the Judge was not entitled to go behind. It is argued that this error was material given that the Judge considered that non-evangelical Christians were not at risk.
3. Ground 2 contends that there is a misdirection in law and that there is a failure to take relevant evidence into account, namely country evidence. It is said that the Judge seems to have confused the existence of information produced by the UK government with a country guidance promulgated by the Upper Tribunal, believing the former to be binding on her which is wrong in law. The Judge stated that the reports of attacks on Christians provided by the Appellant did not persuade her to "depart from the Country Guidance provided". She then referred to a FCO corporate report on Sri Lanka and there was in fact no country guidance. The Judge then stated that there was nothing that led her to "depart from the COI included in the bundle." It is said that there was no Country Information report produced by the Respondent and it was not clear what the Judge thought she was not departing from. It is also asserted that this led the Judge to take the wrong approach to the evidence raising a presumption that the Respondent's information must be followed rather than weighing the evidence in the round. This, it is said, leads her to put little weight on other significant evidence such as the International Religious Freedom Report, a respected publication of the US State Department which cannot be characterized as "anecdotal" as it was referred to by the Judge. It is argued that the Judge would have reached a different conclusion on the risk faced by Christians in Sri Lanka, whether evangelical or not, had the evidence in the Appellant's bundle been considered.
4. Ground 3 states that the Judge placed weight on an immaterial matter in that she relied on the Appellant's answer to what had changed since the refusal of her husband's asylum claim to conclude that she only wanted to stay in the UK for economic reasons. The Appellant had referred to developments in the UK and it is said that it is not clear how the Appellant could be expected to describe a worsening situation for in Sri Lanka when she had not been home since her first claim for asylum.
5. Ground 4 asserts that the Judge made findings on a mistaken premise in making an adverse finding based on the Appellant having delayed making an asylum claim despite the fact that this was not raised by the Respondent in the refusal letter which also did not make any reference to section 8 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004. It is also said that a further application was made in 2013 by the husband for both of them. It is also said that the Judge may have confused what was binding on her in this context as well as the weight she placed on needing an intervening cause for the asylum application made in 2014 as opposed to the one refused in 2008 without referring to the 2013 application. The 2014 application was made due to her husband's convictions. It was also said that it appeared that the Judge was placing weight upon the 2008 refusal as if it were a previous negative tribunal decision.
6. It is further argued that the Judge placed weight on an apparent inconsistency between the Appellant saying that her daughter was unaware she was raped and her daughter having read the witness statement. Her daughter was in fact given a redacted version of the Appellant's statement to read by the Appellant's representatives to protect her from that information and it was not possible to correct this in evidence because the Appellant went first and questioning the daughter about whether she knew about the rape was self-defeating.
7. Ground 5 asserts that the Judge failed to take into account relevant considerations. The Judge found that the Appellant's daughter had not lived continuously in the UK for seven years while under 18 at the date of the mother's application when they had been in the UK for six years and three months. It is said that this fails to take into account that the Respondent initially made an unlawful decision one month before the daughter had been in the UK for seven years. That decision was unlawful because the claim was wrongly certified and overturned on judicial review. The grounds argue that had that not happened she would have had an appeal after she had been in the UK for seven years and still a child. By the time the Respondent re-made the decision she was an adult. The grounds also assert that the Judge also did not mention in her decision how the daughter's life was turned upside down when her father was convicted of sexual offences and this was relevant to proportionality. It is also said that the judge fails adequately to take into account the contribution the daughter made to the UK through her voluntary work.
The Hearing
8. Mr Holt expanded on the grounds of appeal. With regard to ground 1, the Appellant gave evidence of her evangelism in her witness statement and none of that evidence could be found in paragraph 16 or in paragraph 17 of the decision. The Judge had adopted an overly selective reading of q16 of the interview and failed to give any weight to explanation as to what she meant by "speak". It was explained in good detail. That gave rise to a material error of law. It was made more material when considered against the background. The Respondent did not make any negative findings in relation to her claim to be evangelical. Secondly, against the background that the Respondent accepted that her husband was targeted for work as a pastor this error was even brighter.
9. With regard to Ground 2 the Foreign and Commonwealth report at D63, that was not country guidance and certainly not guidance that a Judge could depart from. It replaced the lower asylum standard with a different standard for an appellant to provide evidence to warrant a departure. As to materiality, it was very significant. There was a good deal of evidence provided in relation to the risk to evangelical Christians. At D37-50 were a collection of news reports. At D81 to D85 there was a further news report from Aid to the Church in Need but most importantly the language used by the Judge to describe the evidence was "anecdotal". The report at D52 - D61 was from US State Department and that might be a ground of appeal in itself.
10. Regarding grounds 3 and 4 the Judge asked the Appellant what had changed since the asylum claim and the response was to refer to events in the UK. She did not say that her husband had committed criminal offences and she had made a separate claim. The Judge placed too much weight on that to say that is why she was in the UK. Ground 4 concerned the treatment of delay. Delay was raised in the hearing for the first time. The claim was made six years after arrival in the UK but no consideration was given to the fact that her husband's claim was dealt with first. If that relationship had remained in place there may have been no such criticism made. The Judge's finding that there was no intervening cause was to import a condition that should not be there. Ground 4.5 was the factual challenge. At paragraph 25 the rape was described as a further inconsistency. The whole paragraph was infected by a misunderstanding. The mother gave evidence that her daughter did not know about the rape. The daughter was asked if she had the mother's statement and she said yes. It was redacted. The inconsistency was wrong in fact and therefore wrong in law. It led an error in relation to the credibility assessment of the claim of rape. The tribunal was left with the impression that either the daughter had lied or that the mother had lied about whether she had lied about talking to her daughter about the rape. It was not the Judge's fault.
11. With regard to Ground 5, it could not be argued that para 276 ADE could have been relied on in an earlier appeal. There was an unlawful decision and consequently the daughter reached her majority by the time of the appeal. In the consideration outside the Rules that entire idea was absent from the decision. The treatment outside the Rules did not take into account that the delay was caused by the Respondent. At the date of the appeal hearing she was 18 years and she had been in the UK for 8 years and 4 months. There was an unlawful decision on 12 February 2014 and a lawful decision on 23 April 2015 which was a delay of a year and two months. If one assumed that the same factors were to apply if it had been heard 1 year and 2 months earlier she would have been in UK for 7 years and two months.
12. Mr Richards submitted that no material error of law was demonstrated. In relation to the issue of whether the Appellant was evangelical, the Judge was criticised for the approach to question 16. She pointed out that the Appellant said "I don't preach - I did not get involved in converting people" and that was significant. The point about evangelical conduct was about converting people, the type of conduct that was potentially going to bring one to the attention of the authorities. The fact that her husband was accepted as an evangelical Christian was of no account. The key finding by the Judge that the Appellant was not involved in evangelical conduct was well-reasoned and sound. In relation to paragraph 19 of the determination there was perhaps on a first reading, some confusion as to what the Judge was referring to when she mentioned country guidance but when one read the paragraph as a whole and the references she gave it was clear that she did not refer to any case law but country guidance in the wider sense and the one saw identified which was the Foreign and Commonwealth guidance on the page cited and in essence she outlined evidence submitted by the Appellant. She concluded that she was not bound by country evidence. Any proper reading of that paragraph must come to the conclusion that she was preferring one set of country information to another. There was nothing wrong with that. The section 8 point was of no account. She was obliged to take into account a delay and it was not a matter that she made a good deal of. It was there and there was nothing wrong with it.
13. The point about the daughter being unware of the rape allegation was of no significance. The Judge dealt with that issue in full in paragraph 24 and concluded at the end of paragraph 24 that she found that the Appellant had not shown she was raped and that it was a claim made to bolster application. She then went on to add that there was a further inconsistency. That inconsistency had no bearing on a conclusion that had already been reached. In relation to Article 8 claim of the daughter, it was given full and detailed consideration by the First-tier Judge who did not just look at the Rules but conducted a full Razgar analysis. There was considerable analysis with the daughter taking all matters into consideration that the decision to remove her and her mother was proportionate. There was no injustice to the daughter in how the Judge conducted her analysis. It should stand.
14. Mr Holt submitted that in relation to the daughter at paragraph 36 the Judge said the decision was finely balanced. Had there been a slight difference either way it could have made a difference. On the last page of grounds the Judge had failed to have sufficient regard to the value to the contribution she had made. UE Nigeria v Secretary of State for the Home Department [201] EWCA Civ 975 provided that the fact the community would lose something of value was capable in principle of affecting the balancing exercise. It was not possible to conclude that it would not have been different. Normally it might be low weight but where it was described as far more finely balanced it was likely that the tribunal would have taken a different approach had these factors been taken into account.
Discussion and Findings
15. Ground 1 impugns the First-tier Tribunal's findings on the grounds that the Tribunal misapprehended or failed to take into account relevant evidence regarding the Appellant's account that she was an evangelical Christian. At paragraph 16 of the decision the First-tier Tribunal stated:
"16. I do not accept that the appellant was engaged herself in evangelical activities. At Q 16 of the asylum interview she specifically stated that she did not preach and did not get involved in converting people (AB A44). In oral evidence the appellant stated that the only problem she had with the report of that interview was that it reported that she had defaced pictures of 'Buddhists' but that should have been interpreted as pictures of 'Buddha'. She raised no other issues with the interpretation of the interview or its contents".
16. The First-tier Tribunal Judge then considered the contents of two letters from individuals in Sri Lanka in the Appellant's bundle and found that they did not indicate "significant proselytising activity". She also took account of a letter from the Appellant's church and an email from a pastor from a Cardiff church and found that neither of them made mention of evangelical work. She found that the contents of that correspondence was similar to the activities that the Appellant indicated that she took part in in Sri Lanka. She then found that the Appellant was a Christian but was "not engaged in any particular evangelical work or activities and was not so engaged in Sri Lanka".
17. It is alleged that in coming to her conclusions the Judge selectively quoted from the Appellant's interview and failed to take into account the contents of her witness statement. The Appellant was asked, at question 16 of the interview, "Were you preaching Christianity to anyone?" Her answer is recorded as "No I don't preach but I do speak some time but I don't preach. I didn't get involved in converting people. I got involved in prayer meetings and everything". The issue of her activities was dealt with again at question 27 where she was asked: "You mentioned earlier a number of incidents that happened in Sri Lanka which were as a result of your husband's preaching. Were any of these incidents as a consequence of anything that you did?". She answered "I was only involved with this thing, but people are saying, people who come to my surgery they are saying are being given medication and converting them to Christianity. This is how a lot of problems were being created".
18. The Appellant's evidence in her witness statement about her and her husband's preaching is to be found at paragraphs 22 to 24. The Appellant explains at paragraph 22 and 23:
"22. To clarify, though I am not a Pastor and so not formally preaching, I was most certainly involved in telling people the Gospel. It is very important to me as an Evangelical Christian that I do this. I did this mainly through my professional work, because that is where I met the most people, and where I had the largest audience. I would talk to everyone who came in. I would give free medicine out, and I would tell them I was doing so because it was part of my religion. It is part of my daily life to speak to people about religion and to try and convert people and save their souls. As an Evangelist it is part of my faith to spread the good news of the Lord, to convince people to convert to Christianity. Speaking to people of different faiths, to try to convert them is a very important part of my faith.
23. In Sri Lanka, I was able to convert many people, people changed their lives, and I believe that I saved their souls, and saved them from a life of sinning. I would evangelise by speaking to strangers I meet, people who visit my dispensary and others ?"
19. I find no error in the First-tier's conclusion that the Appellant was not herself engaged in evangelical activities. She appreciated that the Appellant's husband was a pastor and did not go behind the Respondent's concession in this regard [18]. It does not follow from this that she was obliged to accept that the Appellant was involved in evangelical activities. She was not obliged to mention every piece of evidence. In VW (Sri Lanka) v SSHD Case C5/2012/ 3037 Lord Justice McCombe quoted with approval the comments of Lord Hoffmann in Biogen Inc v Medeva Ltd 1997 RPC 1 that:
"the need for appellate caution in reversing the trial judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance? Of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation".
20. Lord Justice McCombe continued that "regrettably there is an increasing tendency in immigration cases, when a first tier tribunal judge has given a judgement explaining why he has reached a particular decision, of seeking to burrow out industriously areas of evidence that have been less fully dealt with than others and then to use this as a basis for saying the judge's decision is legally flawed because it did not deal with the particular matter more fully. In my judgement, with respect, that is no basis on which to sustain a proper challenge to a judge's findings of fact."
21. The First-tier Tribunal was cognisant of the issue to be resolved. She set the relevant dispute of fact at paragraph 15 in relation to the Appellant's evangelical work. There was a clear contradiction in the Appellant's evidence as the Appellant was recorded as stating in interview that she had not been involved in converting people and in her witness statement that she was able to convert many people in Sri Lanka. Whilst the Judge did not refer directly to the statement and this contradiction she referred to relevant evidence and gave reasons for finding that the Appellant was not engaged in particular evangelical activities in Sri Lanka.
22. Ground 2 contends that the Judge failed to take into account relevant background evidence. I conclude that there is an error of law in the First-tier Tribunal's approach to the background evidence submitted by the Appellant. At paragraph 19 of the decision the First-tier Tribunal stated:
"The appellant has provided general reports of attacks and discrimination against Christians in Sri Lanka. These are anecdotal and I find that they do not persuade me to depart from the Country Guidance provided. The country guidance at page AB D68 confirms that there are attacks on religious minorities including Christians in Sri Lanka. These are not state actors and the issue therefore will relate to sufficiency of protection."
23. I do not consider that the Judge confused the background evidence provided with Country Guidance issued by the Upper Tribunal. It is obvious from her explicit reference to the document at AB D68 that she was referring to a document produced by the Foreign and Commonwealth Office and was using the term "country guidance" to describe background evidence. However, I conclude that her reference to other evidence, including the US State Department International Religious Freedom Report on Sri Lanka from 2014 as "anecdotal" taken together with a reference to the Foreign and Commonwealth's report as being effectively binding on her means that she failed to weigh up the evidence evenly and appropriately and rejected relevant evidence. Clearly this evidence was material because it related to sufficiency of protection.
24. I do not find that the Judge erred as contended in Grounds 3 or 4 in relation to her adverse finding regarding the delay in the Appellant's asylum application. The impugned findings are at paragraph 19, in relation to general credibility and at paragraph 24 in relation to the finding that the Appellant was not raped. The First-tier Tribunal found at paragraph 19:
"In particular I note that at Q34 of the appellant's asylum interview, when asked what had changed since the refusal of her husband's original asylum claim, the appellant did not mention any issues regarding a worsening situation in Sri Lanka, but rather stated that her children wished to go to University and were unable to get the funding due to their immigration status. I find that this was an honest answer given by the appellant and that this is the reason for her claim at this time rather than any worsening of the situation regarding Christians in Sri Lanka. I find no new intervening cause for the asylum application made in 2014 as compared to the one in 2008."
25. According to the chronology produced by the Appellant she was a dependent on her husband's asylum claim which was refused in March 2008 and according to the grounds, not appealed. She then claimed asylum in her own right in 2013 after her marriage with her husband broke down and he was charged with sexual offences. The Appellant argues in her grounds that the general adverse credibility finding at 19 placed significant weight on an immaterial matter because she had not returned to Sri Lanka and could not be expected to describe the worsening situation there. I do not find any error in the Judge finding that the delay in claiming asylum damaged the Appellant's credibility. She did not make a claim between 2008 when her husband's claim was refused and 2013. I find no flaw in the Judge's reasoning and it was not unreasonable for her to conclude that she could have claimed earlier.
26. I also find that her findings at paragraph 24 with regard to the Appellant's delay in mentioning that she was raped are adequately reasoned and open to her on the evidence. She rejected the Appellant's account not to have mentioned it earlier because she found the reason given, namely that she was interviewed by men, did not provide an answer as she had been seeing a therapist since 2013 who was a woman and had not disclosed the rape to her until 2016. She notes that the therapist did not provide a reason why it would not be disclosed to her. However, it is clear, as asserted in Ground 4, that the First-tier Tribunal founded an adverse credibility finding on the fact that the Appellant had stated that her daughter knew nothing about the rape. This is mentioned in the body of her reasoning at paragraph 24 and amplified at paragraph 25 where she cites it as a further inconsistency. I accept Counsel's explanation in the grounds that the daughter was given a redacted statement of her mother's to read to protect her from this knowledge and the Judge would not have known this. The Judge states at paragraph 25 that the inconsistency consists in the fact that the Appellant stated that her daughter was unaware of the allegation of rape and that submissions should be made in the absence of the daughter but that this was contradicted by the daughter's evidence which was to the effect that she had read her mother's statement where rape was mentioned for the first time. I accept that the Judge, although no blame cane been attributed to her, made an adverse credibility finding in part on the basis of a mistake of fact as the daughter's knowledge of her mother's rape. I find that it played a material part in the Judge's reasoning and therefore amounted to an error of law (E and R (2004) EWCA Civ 49).
27. Ground 5 impugns the findings of the First-tier Tribunal on two grounds in relation to the proportionality assessment of the Appellant's daughter, firstly the delay in lawful decision making and secondly in relation to the daughter's contribution to society. It is clear that at the date of the application in January 2014 she could not have met the requirements of paragraph 276ADE (iv) because she had only been in the UK for 6 years and 3 months. The Appellant argues however, that because an unlawful decision was made on in February 2014 denying the Appellant an in-country right of appeal, the appeal did not take place until she had reached 18. In R (Iran) [2005] EWCA Civ 982 the Court of Appeal held that a decision on proportionality of an Immigration Judge who has properly directed himself can only be overturned on reconsideration on traditional public law grounds. In Akaeke (2005) EWCA Civ 947 Carnwath LJ observed that the weight given to a relevant factor, such as unreasonable delay of the Home Office, was a matter for the Tribunal, "subject only to the constraints imposed by judicial review principles".
28. The First-tier Tribunal's decision rightly assessed the daughter's case outside the Rules and the proportionality exercise is well-reasoned and took account of the fact that the daughter was a highly gifted student with strong ties to the UK. The Judge noted that the balancing exercise was 'finely balanced'. However, there is no mention of the delay in decision making due to an unlawful decision having been made by the Respondent and the impact of such a delay on the daughter's private life. Whilst it cannot be said that the daughter would have succeeded in her appeal were she still a child had a lawful decision been made earlier, I consider that the delay was a relevant factor particularly in the life of a child where it could potentially have tipped the scales, the balancing exercise having been identified as "finely balanced". It was a material factor that was not taken into account. I do not consider however that the Judge erred in failing to consider the ratio of UE (Nigeria) v Secretary of State for the Home Department [201] EWCA Civ 975 where the court found that positive contribution to the community was a public benefit is capable of being a relevant consideration when assessing the public interest side of proportionality under Article 8. The argument was not articulated in the skeleton argument nor is it noted in the record of proceedings. It was not a point so obvious that the Judge was obliged to have regard to it of her own motion.
29. For the reasons given, however, I find that there were errors of law in the decision of the First-tier tribunal. I find that in the light of the fact-finding required it should be remitted to the First-tier Tribunal. I set aside the decision in relation to the Refugee Convention but preserve the finding of fact that the Appellant was not engaged in evangelical activities. I set aside the decision in respect of the daughter under Article 8.

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 the decision.
I remit it to the First-tier Tribunal for rehearing as set out in paragraph 30 above.

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 her 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 30 September 2016

Deputy Upper Tribunal Judge L J Murray