Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/08072/2014

THE IMMIGRATION ACTS

Heard at Royal Courts of Justice, Belfast
Decision & Reasons Promulgated
On 10 November 2016
On 1 December 2016

Before

UPPER TRIBUNAL JUDGE RINTOUL

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MOHAMMED LAHWANI
(ANONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Mr M Matthews, Home Office Presenting Officer
For the Respondent: Mr M Brennan, Solicitor

DECISION AND REASONS
1. The Secretary of State appeals with permission against the decision of First-tier Tribunal Judge Farrelly promulgated on 24 February 2016 in which he allowed the appeal of Mr Mohammed Lahwani against the decision of the Secretary of State made on 26 June 2014 to remove him from the United Kingdom consequent upon the refusal of his claim for asylum.
2. The respondent's case is that he is a Palestinian from Jerusalem, and that he is at risk of persecution on return on account of imputed political opinion, given that he has come to the adverse attention of the Israeli military.
3. The Secretary of State did not accept that the respondent is from Jerusalem, given the opinion to the contrary expressed in a report from Sprakab upon which she relied. She did not accept that he was from the Occupied Territories or that he had, as he claimed, struck an Israeli soldier. Inferences adverse to his credibility, pursuant to section 8 (3) (b) of the Asylum and Immigration (Treatment of Claimants, etc.) 2004 were drawn from the respondent's use of a false passport.
4. At his appeal in the First-tier Tribunal, the respondent gave evidence and was cross-examined. He also produced a birth certificate and relied upon an expert report from DE taal STUDIO to counter the evidence of the Sprakab report.
5. The judge found that:
(i) the Sprakab conclusion that the respondent is Jordanian was not adequately explained, but the DE taal STUDIO report reached no conclusion, but indicated he might be from Jerusalem, the effect therefore being that the latter report "neutralised" the Sprakab conclusion [37];
(ii) while it was possible that the birth certificate was not genuine [40], looking at all of the evidence, absent reliable contra indicators, he was satisfied that the respondent is from Jerusalem [41];
(iii) the respondent had previously been kept in detention for two months and abused [44]; that it was possible that he had assaulted an Israeli soldier as claimed, and that he would be of continuing interest to the Israeli military [46];
(iv) the respondent has a raised profile, and would be at real risk of persecution if returned, the risk to him being heightened by his previous detention and striking a soldier [48];
6. The Secretary of State's sought permission to appeal on the grounds that the judge had erred:
(i) In failing properly to apply case law and weight to the Sprakab report, his approach to the DE taal STUDIO report being flawed;
(ii) In his approach to the birth certificate, it having been submitted that it was unreliable for a number of reasons, and as section 8 was in issue; and, because there were contra-indicators, contrary to what the judge had stated;
(iii) In falling properly to give reasons why the appellant would have a raised profile, and why, if it were not particularly high, MA (Palestinian Arabs - occupied territories - risk) Palestinian Territories CG [2007] UKAIT 00017, did not apply
(iv) In failing to give reasons why, given the use of a false document, and given section 8 of the 2004 Act, that did not impact on the respondent's credibility, this having particular resonance with the birth certificate.
7. In his submissions, Mr Matthews indicated that he would not be pursuing ground (i). I consider that he was correct so to do. The grounds are defective in that the rely on a decision of the Upper Tribunal which was to a significant extent amended by SSHD v MN & KY [2014] UKSC 40 which the judge at [28] considered There is no indication in the decision that he did not properly apply it, or that he did not give proper weight to the Sprakab report. He gave adequate and sustainable reasons for not attaching much weigh to it, and for attaching weight to the report from DE taal. The reference to the latter "neutralising" the Sprakab report is perhaps an infelicitous use of the word; it is, however clear from reading the decision as a whole that the judge meant that weighing the reports, they balanced each other on the issue of whether the appellant was from Jerusalem or not. They were not conclusive and thus the judge, properly, went on to consider the other evidence.
8. In assessing ground (ii), I note that the judge properly directed himself [38] in line with Tanveer Ahmed and gave adequate and sustainable reasons [40] for attaching weight to it. The objections raised by the Secretary of State are of little substance. The judge had, for good reasons, attached little weight to the report indicating that the respondent was not from Jerusalem. Further, as Mr Matthews accepted, while the certificate had been obtained in 2014, there is little or no evidence to suggest that the birth had not been registered much earlier. It is evident from the document that it is a certified extract of a record maintained by the relevant authorities.
9. The issue of the lack of an ID card was, it is submitted, improbable, but that appears to flow from comments made in the Sprakab report the reliability of which the judge had legitimate doubts; the author appears never to have visited Jerusalem or Israel.
10. The fact that section 8 of the 2004 Act was in issue is not determinative. It is established law that those considerations are simply one facet of the assessment of credibility - see JT (Cameroon) [2008] EWCA Civ 878 per Laws LJ. While the judge does appear at first glance [19] appear to conclude it was not in issue, it is evident that looking at the relevant paragraph as a whole, that what the judge meant was that the Secretary of State had not drawn inferences pursuant to section 8 in respect of the untruth that the respondent had flown directly to Belfast.
11. It is not arguable that the judge erred when stating there were no contra-indicators [40]. The averment that the judge said there were no contra-indicators is misleading in that it omits the word reliable. Further, the submission that what was recorded at [22] and [23] were not taken into account is misplaced. It is evident, looking at the decision as a whole, that the judge did take these factors into account, as can be seen from his conclusion at [41], and concluded that the contra-indicators were not reliable. It was open to him to reach that conclusion and his reasons for so finding are adequate and sustainable; the re
12. Mr Matthews in effect, conceded that ground (iii) was not made out. What the judge stated at [42], properly construed, is that the refusal letter did not address the issue of whether or not the respondent would be at risk if what he had said were true; paragraphs [17] and [18] cited in the grounds record reasons for disbelieving the account, not any assessment of what would follow were the account true. Further, I am satisfied that the judge gave adequate and sustainable reasons in the context of the case why the respondent would be at risk. That the respondent was released does not advance the Secretary of State's case as the more serious incident occurred after the release.
13. While the judge could have dealt explicitly with section 8 in his decision, as noted above, the judge did not conclude it had not been raised. In JT (Cameroon) Pill LJ held [21]:
Section 8 can thus be construed as not offending against constitutional principles. It is no more than a reminder to fact-finding tribunals that conduct coming within the categories stated in section 8 shall be taken into account in assessing credibility. If there was a tendency for tribunals simply to ignore these matters when assessing credibility, they were in error. It is necessary to take account of them. However, at one end of the spectrum, there may, unusually, be cases in which conduct of the kind identified in section 8 is held to carry no weight at all in the overall assessment of credibility on the particular facts. I do not consider the section prevents that finding in an appropriate case. Subject to that, I respectfully agree with Baroness Scotland's assessment, when introducing the Bill, of the effect of section 8. Where section 8 matters are held to be entitled to some weight, the weight to be given to them is entirely a matter for the fact-finder.
14. I am satisfied that in the context of this case, where an experienced judge has otherwise properly directed himself on the law, it cannot be argued that he had not borne section 8 in mind having said that he considered all the evidence in the round [18], [41] and where he had turned his mind to section 8, albeit in a different context [19]. In essence the issue was what weight to be attached to the used of the false document. It was open to the judge to conclude little weight was attached, and to conclude that, taking all matters into account, he nonetheless accepted the respondent's claim. There is nothing in the decision to indicate that the judge attached, in the context of this case, much weight to the section 8 matters or that it could have made any material difference.
15. Accordingly, for these reasons, I am not satisfied that the decision of the First-tier Tribunal involved the making of an error of law and I uphold it.
Summary of conclusions
The decision of the First-tier Tribunal did not involve the making of an error of law and I uphold it.

Signed Date: 29 November 2016

Upper Tribunal Judge Rintoul