Tribunal decisions

The decision

IAC-AH-CO-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/09387/2015

THE IMMIGRATION ACTS

Heard at Centre City Tower, Birmingham
Decision & Reasons Promulgated
On 27th January 2017
On 15th February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE M A HALL

Between

kb
(ANONYMITY DIRECTION made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr G Price-Rowlands of Counsel instructed by Syeds Solicitors
For the Respondent: Mr D Mills, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction and Background
1. The Appellant appeals against a decision of Judge Andrew of the First-tier Tribunal (the FTT) promulgated on 13th February 2016.
2. The Appellant is a female citizen of Pakistan born 16th April 1963. She entered the UK as a visitor and after expiry of her leave claimed asylum in November 2014. She claimed to fear Lashkare Jhangvi as she believed that members of that group had poisoned her son. She also feared the police in Pakistan and gangsters in her home area. She had travelled to the UK with two of her daughters who are dependants in her asylum claim.
3. The Respondent refused the application on 5th June 2015. The Appellant appealed pursuant to section 82 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act), and her appeal was heard by the FTT on 5th February 2016 and dismissed on all grounds.
4. The FTT heard evidence from the Appellant and stated at paragraph 17;
"17. For the reasons that I will now give I have not found the Appellant to be a credible witness. I do not believe anything the Appellant has told me in relation to her asylum claim."
5. The Appellant thereafter applied for permission to appeal to the Upper Tribunal.
6. This application was considered by Judge Reid of the FTT who found the appeal to be out of time and no explanation for the delay had been offered. Judge Reid therefore refused to admit the application.
7. However Judge Reid then went on to consider the grounds finding no arguable merit in them, describing them as confusing, and amounting to no more than a disagreement with findings made by the FTT.
8. The Appellant's solicitors renewed the application for permission to appeal to the Upper Tribunal, making no application for time to be extended.
9. Permission to appeal was granted by an Upper Tribunal Judge on the one ground that it was arguable that the FTT had not engaged with the handwritten witness statement submitted by the Appellant at the FTT hearing.
10. The grant of permission prompted the Respondent to lodge a response pursuant to rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008 pointing out that Judge Reid had refused permission because the application was out of time, and this had not been addressed in any way by the Upper Tribunal Judge granting permission. Therefore there was no valid permission to appeal. Notwithstanding this, the Respondent contended that the grounds did not disclose any error of law.
11. Directions were issued making provision for there to be a hearing before the Upper Tribunal to decide whether the FTT decision should be set aside.
The Upper Tribunal Hearing
12. I advised Mr Price-Rowlands that in my view there was in fact a conditional grant of permission to appeal, as the Upper Tribunal had not considered the out of time issue. I put the hearing back to enable Mr Price-Rowlands to prepare submissions on the issue of timeliness.
13. When the hearing resumed Mr Price-Rowlands had taken instructions from his instructing solicitors, to the effect that the application for permission to appeal was lodged in time. If I found otherwise, I was asked to extend time in the interests of justice.
14. I considered Boktor and Wanis Egypt [2011] UKUT 00442 (IAC), Samir [2013] UKUT 00003 (IAC) and R (on the application of Onowu) IJR [2016] UKUT 00185 (IAC).
15. I found the application for permission to appeal had been lodged out of time. The application should have been submitted no later than 24th February 2016 but was lodged on 29th February 2016. I decided that it was appropriate to extend the time for lodging the appeal having considered the principles in Onowu. I found that the first factor to be considered was whether there was a serious or significant failure to comply with the rules. I found there was in that the delay was five days when compared with the time limit of fourteen days.
16. The second factor to be considered was why the appeal was late. I had not been given any explanation, but took the view that this was not the fault of the Appellant. The application form was dated 23rd February 2016 and had it been faxed on that date, it would have been in time. It appears that the solicitors did not post the application form until 25th February 2016 when the time limit had already expired.
17. The third factor to be considered is to evaluate all the circumstances of the case, taking into account that particular care must be taken in appeals concerning claims for asylum and humanitarian protection, to ensure that appeals are not frustrated by a failure by a party's legal representatives to comply with time limits. There is specific reference to this in paragraph 14(iii) of Onowu. I placed significance on this, and taken together with the fact that the Appellant was not at fault, I decided that it was fair and just to extend the time so that the grant of permission to appeal by the Upper Tribunal was effective.
18. I then heard submissions from the representatives as to error of law. Mr Price- Rowlands submitted that the FTT had erred for the reasons given in the Upper Tribunal grant of permission, by failing to engage with the handwritten statement prepared by the Appellant at the hearing, and submitted on her behalf.
19. Mr Mills contended that the FTT decision disclosed no error of law. The FTT had considered the statement and it was for the FTT to decide what weight to attach to the contents thereof. The FTT had been entitled to find that an inadequate explanation had been given to explain the inconsistencies in the Appellant's account.
20. At the conclusion of oral submissions I reserved my decision.

My Conclusions and Reasons
21. The issue that I have to decide is whether the FTT engaged with a handwritten witness statement submitted at the hearing. I am satisfied that the FTT took the contents of this statement into account, and find that the FTT did not err in law for the following reasons.
22. The FTT refers to the handwritten statement at page 7 of the Decision, and confirms at paragraph 16 that careful consideration has been given to all the evidence. The FTT is not obliged to rehearse every piece of evidence.
23. The FTT gave sustainable and adequate reasons for finding the Appellant not to be a credible witness.
24. It is clear that the FTT considered the contents of the handwritten witness statement as at paragraph 33 the FTT makes reference to the Appellant's claim that her house in Pakistan "is not in a living condition because it has been left abandoned." The claim that the property had been left abandoned is contained at page 1 of the handwritten witness statement.
25. The FTT was entitled to find inconsistencies in the Appellant's account, such as her claim that she and her husband separated in 2000, yet evidence given on her behalf at an appeal hearing in April 2007 in relation to refusal of a visit visa, indicated that at that time she was living with her husband, son and two daughters.
26. The FFT was entitled to note the contents of a second visit visa application, in which it was confirmed that the Appellant's husband currently lived with her. This was the application for a visit visa that was made in 2013. Attached to this application there is an affidavit from the Appellant's husband.
27. The Appellant's explanation in her handwritten witness statement is that she had used agents for completing and submitting her applications for visit visas and therefore it was the agents who had submitted these details. The FTT considered this explanation at paragraph 19 and again at paragraph 22, finding the explanation inadequate to explain the numerous inconsistencies in the Appellant's account. Therefore the FTT was entitled at paragraphs 28-29 to find clear inconsistencies in the Appellant's account as to the death of her son, therefore being unable to place any reliance upon the Appellant's claims that her son had passed away.
28. In my view the FTT considered all the evidence relied upon by the Appellant, and made findings open to it on the evidence, and gave adequate and sustainable reasons for those findings. The grounds do no disclose any material error of law. The decision of the FTT stands.
Notice of Decision

The making of the decision of the FTT did not involve the making of an error on a point of law. I do not set aside the decision. The appeal is dismissed.
Anonymity

An anonymity direction was made by the FTT. I continue that direction pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

Direction Regarding Anonymity - 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 her 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 Date 3rd February 2017

Deputy Upper Tribunal Judge M A Hall

TO THE RESPONDENT
FEE AWARD

No fee has been paid or is payable. The appeal is dismissed. There is no fee award.

Signed Date 3rd February 2017

Deputy Upper Tribunal Judge M A Hall