Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/08400/2013

THE IMMIGRATION ACTS

Heard at Field House
Determination sent
on 18 December 2013
On 23 December 2013

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

MAMF
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Mr N Aghayere, instructed by Lawland, Solicitors
For the Respondent: Mr K Norton, Senior Home Office Presenting Officer

An anonymity order remains in force.

DETERMINATION AND REASONS
1. The appellant, a Muslim Tamil from Sri Lanka, appeals against a determination by First-tier Tribunal Judge Beach, dated 23 October 2013, dismissing his appeal against refusal of recognition as a refugee.
2. In the First-tier Tribunal the appellant was represented by Mr Davison, counsel, instructed by Lawland, Solicitors. It appears that at the stage of applying for permission to appeal to the Upper Tribunal he was not represented, but his grounds are clearly framed, and are all reflected in the grant of permission by Judge Astle on 14 November 2013:
The grounds assert that the judge failed to give proper weight to the appellant’s documents. The appellant now has the original documents … the judge erred in not allowing him time to submit them … in failing to give weight to the fact that he was only released on payment of a bribe [and] … in failing to appreciate that the appellant did not get a copy of the arrest warrant. The certified copy was obtained by a lawyer in Sri Lanka.
It is apparent from the determination that copy documents only were submitted to the tribunal but that the originals … arrived at the appellant’s home on the day of the hearing after he left for court. I have noted various references in the determination to the lack of originals and it is arguable that the judge erred in failing to adjourn … so that they could be produced.
3. On 9 December 2013 Lawland, Solicitors, wrote to the Upper Tribunal advising that they had again been instructed by the appellant.
4. Mr Aghayere drew attention to paragraphs 19 and 26 of the determination, where the judge refers to original documents having arrived at the appellant’s home, and then to paragraph 46, where she says that absence of originals made her approach the documents with some caution. He said that although there was discussion of other matters relating to the documents at paragraph 48, the judge went wrong in that light by not adjourning, or by not reserving her determination, until the documents could be provided.
5. I observed that the judge was not asked to adjourn or to reserve. Counsel said that even without an application it was her duty to allow production of the documents, particularly given that this was an asylum appeal with potentially serious consequences for the appellant.
6. Mr Aghayere next argued that the judge erred at paragraph 50, finding that the appellant did not fall within the risk factors in GJ [2013] UKUT 00319. Being subject to an arrest warrant, his name would be on a “stop” list, and he fell within headnote 7 (d).
7. Mr Aghayere turned to other error regarding the documents. Evidence that documents could be fraudulently obtained did not permit a finding that particular documents were fraudulently obtained, unless there was specific evidence of forgery, such as a letter from the Sri Lankan authorities. Paragraph 10.17 of the COIR says that an accused cannot obtain a copy of his arrest warrant, although that could be accomplished through corruption of the police. That was not evidence that a lawyer could not obtain a copy, as alleged in this case. It should be assumed that a lawyer could do so, as in this country. The judge was wrong at paragraph 45 to find a direct contradiction of the COIR.
8. Finally, Mr Aghayere submitted that from those errors it followed that the determination should be reversed and the appeal allowed.
9. Before hearing from the Presenting Officer, I raised the point that there has been no application from the appellant to admit any further evidence, and that the appellant was sitting with a DHL envelope before him, likely to contain the documents under discussion, still in his own hands.
10. Counsel accepted that an application to produce further evidence should have been made. He said that in that light the appropriate outcome might be not to allow the appeal outright, but to remit to the First-tier Tribunal for a fresh hearing, at which the appellant could seek to introduce the documents in evidence.
11. Mr Norton did not accept that paragraph 10.17 of the COIR is neutral about whether a lawyer can properly obtain a copy arrest warrant. He said the clear implication was that a copy would not be given to an accused either on his own application or through his legal agent, so that the judge was right to find that the lawyer’s letter (item 4, appellant’s FtT bundle) was contradicted by the background evidence. The appellant asserted the contrary, but it was for him to produce evidence to that effect, and he failed to do so. Mr Norton further argued that non-production of originals was not the essence of why the judge found the documents unreliable. She gave clear reasons at paragraphs 44 to 48, based on how summonses are served and the appellant’s contact with his family, for declining to accept that he would not have been aware of such significant developments until after his screening interview. The judge was entitled to find the documents and the appellant’s evidence unreliable, and there was then no question of his establishing a need for protection, or falling within any category of GJ. Although the judge referred to non-production of originals, reading the determination as a whole that was not why the appeal failed. The essence of the reasoning would not be affected by sight of original documents, and in absence of an application there was no error of failing to adjourn. The determination should stand.
12. Alternatively, on an error finding, the Presenting Officer said that the respondent should have the opportunity to examine the documents and make submissions on them, and the appellant should have the chance to lead further evidence also about any practice of issuing arrest warrants to lawyers, so if there were to be any further decision, it should be by way of fresh hearing in the First-tier Tribunal.
13. Mr Aghayere in response said that the terms of the COIR at 10.17 did not shift the onus on the point to the appellant, and that 10.19 of the COIR, where a lawyer is quoted to the effect that no-one would take the risk of obtaining a false warrant, reinforces the view that the warrant in this case should have been found to be genuine.
14. I reserved my determination.
15. The Upper Tribunal’s directions, issued with the grant of permission, reminded parties that if they wish the UT to look at any evidence which was not before the FtT application is required under the Tribunal Procedure (Upper Tribunal) Procedure Rules 2008, Rule 15 (2A). The directions also put parties on notice that failure to comply in respect of evidence may lead to its not being admitted. The absence of any application rather undermines the grounds of appeal. It was not suggested that there was any need to look at the documents to see if the alleged error leads anywhere at all.
16. The original documents were by his account available to the appellant on the day of the First-tier Tribunal hearing, although not with him at the hearing. The comments by the judge include reference to the easy availability of forged documents, including genuine documents fraudulently obtained, in Sri Lanka (paragraph 46). To offer the respondent the earliest possible opportunity of examining the documents would not have resulted in a complete answer to the case one way or the other, but it would have been an obvious step for the appellant to take. No such offer was made.
17. The appellant did not seek an adjournment at the First-tier Tribunal hearing. Where no such application was made, especially where a party was represented by counsel and solicitors, it would rarely be an error of law for a judge not to adjourn.
18. The judge’s approach to the documents was not to reject them only for non-production of originals for examination. She did mention that more than once, but she noted also that even if apparently genuine originals were produced they might have been fraudulently obtained; found it incredible that the appellant would have been unaware of two summonses until after his asylum interview; found it adverse that the documents were not requested sooner; and found it adverse that he did not refer at screening interview to a reporting requirement, which later became central to his claim (paragraph 48). She found the appellant’s explanation for delay in claiming asylum incredible (paragraph 49). It was in that context that she went on to find the documents unreliable (paragraph 50).
19. I am unable to detect any error of failing to adjourn. Not only was the judge not asked to do so, examination of originals, as matters stood, was unlikely to yield anything further; and it has not been said since that examination of the originals might take the case forward. It rather seems that the appellants’ representatives have not even thought that they should look at the documents yet. Even allowing for a period when they were not acting, that does not suggest any faith in the proposition that looking at the originals may prove a useful exercise. The points weighing against the documents would remain the same. If they were shown to be indistinguishable from genuine documents, the possibility of fraud would still be there.
20. The point about the reliability of the lawyer’s letter, applying for a copy warrant, is more finely balanced, because the COIR is not specific about issuing copy warrants to legal agents. However, I think firstly that the more natural reading of the COIR is that warrants are not copied to accused persons either personally or through agents, and secondly that if there is such a ready way of obtaining copies, it would have emerged from the respondent’s enquiries into the background, as it goes to the central area of concern. The evidence at 10.19 is that lawyers would not obtain fraudulent documents; that does not help on whether they are in a position to obtain genuine ones. The present question is whether the judge reached an adequately reasoned conclusion on the point. I think that she was entitled to have the concern she expressed.
21. (I incidentally record that on 13 November 2013 when granting permission to appeal in GJ the Court of Appeal said that pending final determination those falling outside the risk categories of paragraph 356(7) of GJ “should not for that reason alone have their claims for asylum rejected whether by the respondent or on appeal to the First-tier Tribunal or the Upper Tribunal”. Mr Aghayere and Mr Norton were aware of that, and agreed that it has no bearing on whether there has been any error of law by the First-tier Tribunal in this case.)
22. The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law, such as to require it to be set aside, and it shall stand.

18 December 2013
Judge of the Upper Tribunal