Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11009/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Determination issued
on 26th July 2016
on 16th August 2016

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

[H H]
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Mr D Katani, of Katani & Co, Solicitors
For the Respondent: Mr M Matthews, Senior Presenting Officer

DETERMINATION AND REASONS
1. The appellant identifies herself as a citizen of Eritrea, born on [ ] 1995. The respondent does not accept her claimed nationality and identity.
2. The respondent refused the appellant's asylum claim for reasons explained in a letter dated 22nd July 2015.
3. First-tier Tribunal Judge Fox dismissed the appellant's appeal for reasons explained in his decision promulgated on 13th May 2016.
4. The appellant's first ground of appeal to the Upper Tribunal is headed, "Error of Fact".
5. Paragraph 16 of the decision says:
"[The appellant] does not speak the first language of her claimed nationality because her mother, who speaks this language, was employed as a domestic servant in Sudan and did not have time to raise her. She was raised by a woman called Hayat. The appellant is unaware of her nationality. Hayat spoke many languages including Arabic, Amharic, Tigrinya and Oromo. In her oral evidence today [the appellant] tells me that [Hayat] spoke Tigrinya to her husband and children. [Hayat] did not speak this to [the appellant]. [Hayat] spoke Arabic to [the appellant]. This is one of the main reasons [the appellant] is fluent in Arabic."
6. At paragraph 20 the judge says:
"What I find difficult to understand is why [Hayat] spoke Tigrinya to her children and husband and not to the appellant. It is possible ... that the language was used with the appellant and she did not pick up on it. However, it would and should have been the language she was first introduced to from birth ... the first language of her mother and father. The lack of explanation as to why she has little or no knowledge of this language mitigates against her credibility ..."
7. The appellant says that the judge incorrectly noted her oral evidence. She did not say that Hayat spoke Tigrinya to her husband and children but not to her. The appellant says in her grounds that Hayat spoke Amharic and Arabic to her husband and children and to the appellant.
8. At paragraph 17 the judge says that the appellant "? tells me that the Eritrean community within which she lived in Sudan speaks Arabic and Arabic". The appellant says that he has incorrectly noted her oral response - she confirmed they spoke Arabic and Amharic.
9. The judge said at paragraph 25:
"... it is accepted that the majority of the questions put to [the appellant] regarding Eritrea were answered correctly ... the respondent submits that this is not consistent with someone who left the country at the age of 3. I am compelled to agree ... I considered that the answers given by the appellant ... at interview and ... today are reminiscent of someone who has prepared for an examination and has learned answers to deal with all eventualities. I consider this conclusion inescapable. The explanation employed by the appellant lacks conviction and credibility."
10. The first ground argues that the appellant was found incredible, at least in part, on the basis of evidence which was misunderstood, a material error of fact amounting to an error of law.
11. The second ground of appeal is headed, "Conjecture".
12. This ground argues that the judge engaged in speculation as to how the appellant acquired her knowledge, and "assumed the role of a behavioural expert. No evidence was led ... that would allow the judge to arrive at such a conclusion".
13. Also under this heading the ground criticises paragraph 32, where the judge says:
"[The evidence of the appellant is that in Italy and France] ... no-one offered her asylum when rescued. However she acknowledges that she was taken to an appropriate camp, provided with accommodation, water and food. I am satisfied that other services would have been made available ... including ... facilities [to] claim asylum."
14. The ground says that the judge speculated, there having been no evidence led on the type of camp to which the appellant was taken beyond provision of accommodation, water and food.
15. The third ground is headed, "Failure to Give Appropriate Weight".
16. The judge found that the appellant ignored the opportunity to claim in Italy and France with a view to "conducting a shopping exercise". The ground submits that this ignores the appellant's explanation that she was under the control of an agent in Italy and in France.
17. Expanding upon the grounds, Mr Katani said that the first disclosed an incorrect noting of the appellant's evidence in a way which later coloured the judgment. If the judge had noted the evidence more carefully, he would not have come to the conclusion he did. It was conjectural that the appellant might have learned her evidence. It would have been impossible for her to know in advance what to study in order to answer questions when making an asylum claim years or months later. There had been no evidence of the type of camp to which she was taken. Particularly if it had been unofficial, there might well have been no information about claiming asylum. Mr Katani accepted that the third ground does not strictly raise an issue about the weight given to certain evidence (which is not usually a matter of law). Rather, it raises a criticism of failing to take evidence into account.
18. Finally, Mr Katani submitted that the errors in total required a fresh hearing in the First-tier Tribunal.
19. Mr Matthews submitted that the obvious explanation for the duplication at paragraph 17 of the determination was that the judge intended to say "Arabic and Amharic" not "Arabic and Arabic". That could be ignored. At paragraph 16 there was some muddling of the evidence, but nothing material. The essential point was that the appellant did not speak Tigrinya, allegedly the language of her mother and also spoken by the woman who brought her up, Hayat. It was spoken by her parents and by those among whom she lived even after her alleged departure from Eritrea. The appellant was in real difficulty in explaining away the language point, quite apart from any error over the language spoken to her by Hayat. It was extraordinary that the appellant was able to give elaborate background information about Eritrea, a country she said she left when aged about 3, but no detail about the background of her allegedly Eritrean parents. She produced a witness who purported to have first- hand knowledge of her Eritrean origins, but the judge for reasons which were not criticised found that witness not to be one of credit. There was nothing in the language points which made any difference. The grounds cherry-picked at the evidence, and failed to deal with the determination as a whole. Whether a camp was run directly by a government or by a non-governmental organisation, it was reasonable to suppose that information and advice about asylum would be available. The appellant had not at all times been under the control of an agent. Her residence in the camp and her departure from it showed that she had consciously decided not to claim asylum in either France or Italy. In any event, it would make no sense for an agent to insist on the appellant travelling on to the United Kingdom rather than making her claim in France or Italy. That must have involved further trouble and expense, and there was no rational explanation of why any "agent" might behave in that way. The judge might not have mentioned that feature of the appellant's evidence specifically, but that was immaterial. The judge was entitled to conclude as he did, and had given more than adequate reasons.
20. Mr Katani in reply argued that the judge at paragraph 31 said that he reached his decision "cumulatively", so that implied that the error about language played some part in it. The judge did not say that "even if" he was wrong at certain points, he would have reached the same conclusion, so the error must have been material.
21. I reserved my determination.
22. The grounds and submissions for the appellant have sought for such error as may be found in the judge's decision, but in my opinion they have failed to disclose anything material.
23. The duplication at paragraph 17 is plainly a typographical slip. The paragraph should be read as Mr Matthews suggested.
24. Any error in recording the evidence at paragraph 16 does not undermine the judge's reasons for finding that there was no sensible explanation of why the appellant, if her background was as she claimed, did not speak Tigrinya.
25. The judge did not require evidence from an expert to justify his conclusion that the appellant's level of knowledge about Eritrea was incongruous. This was not a case, as Mr Katani put it, of being "damned if you do, and damned if you don't". The judge was entitled to observe that she had a detailed general knowledge yet gave no convincing account of personal particulars.
26. It is a perfectly sensible observation that facilities and information about claiming asylum would be available at any camp for refugees. It would be extraordinary if such matters were not commonly discussed in a camp, whether run by the government or by another organisation.
27. The appellant's explanation of being under the control of an agent is no sensible explanation at all. Any more explicit consideration of it would not be favourable to her case.
28. The grounds do not amount to more than disagreement on the facts. They do not show that the decision contains any legally material error. The decision shall stand.
29. No anonymity direction has been requested or made.

15 August 2016
Upper Tribunal Judge Macleman