Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number PA/01344/2015
AA/11019/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 25th July 2016
On 6th September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE PARKES

Between

J S
TBS
(ANONYMITY DIRECTION MADE)
Appellants
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Mr K Wyn (Legal representative, Liyon Legal Ltd)
For the Respondent: Mr N Bramble (Home Office Presenting Officer)

DETERMINATION AND REASONS
1. The Appellants are Indian citizens and arrived in the UK on visit visas which expired in April 2015 on the day that they applied for asylum. Their applications were rejected by the Secretary of State for the reasons given Refusal Letters of the 9th of September 2015. Their appeals were heard by Judge Fenoughty in Birmingham on the 24th of May 2016 and dismissed in a decision promulgated on the 3rd of June 2016. The Appellants sought permission to appeal to the Upper Tribunal in grounds of application of the 17th of June 2016. Permission was granted by Judge Froom on the 28th of June 2016.
2. The basis of the Appellants' claim for asylum is that the First Appellant's husband was involved with the LTTE and that they were suspected of being involved as well. The Secretary of State had rejected their claim for the reasons given, there were a number of inconsistencies, they have been able to leave India by plane and there had been a delay in making the claim.
3. The Judge's reasons are given in paragraphs 70 to 79 of the decision. The Judge referred to a number of inconsistencies, finding that not all were relevant to their credibility, and rejected the Second Appellant's claim to have been unable to attend his asylum interview. The failure to mention that the Second Appellant had been beaten and that there were arrest warrants was held against the First Appellant as these were matters fundamental to her claim.
4. The grounds argue that the Judge erred in giving too much weight to the differences between the First Appellant's screening interview and asylum interview and her failure to mention matters at the screening interview which she later detailed in the main interview. It is also argued that the Judge erred in finding that the Appellant's ability to obtain a visa to the UK undermined their claims, this would have been a matter for the British High Commission and not the Indian authorities. The grounds went on to argue that the Judge erred in relation to delay and applied too high a standard of proof.
5. Judge Froom granted permission on all grounds. His principal observation was that the granting of a visa would be for the British High Commission and in his view although other cogent reasons were given for rejecting the Appellants' account these could not be disentangled.
6. At the hearing Mr Bramble provided a copy of the Secretary of State's rule 24 response. It was submitted that the Judge directed herself appropriately. The visa issues was one of a number of issues taken by the Judge, it could not be said to be central tenet on which the account had been rejected. The Appellants' ability to leave India through lawful channels was a relevant factor on which the Judge was entitled to find against her.
7. At the hearing the parties were represented as indicated and made submissions in line with their respective positions. These are set out in the Record of Proceedings and referred to where relevant below.
8. It is clear that the suggestion that the ability to obtain a visa is irrelevant as that would be issued by the British High Commission and would have nothing to do with the Indian authorities. To that extent it is clear that the Judge erred, the question is the extent to which it is material. It is closely allied to the ability of the Appellants to leave India through lawful channels without being apprehended by the Indian authorities.
9. The decision has to be read as a whole and I disagree with Judge Froom that there may be difficulties with disentangling the strands of reasoning involved. If paragraph 86 is excluded from the decision it makes no difference to any other part of the decision, its absence does not undermine any other aspect of the Judge's reasoning and it was clearly not either a central part of the Judge's findings or any part of a chain of reasoning. Given the other reasons that were given it is not in any way material to the decision and it does not amount to an error of law.
10. That is not the end of the matter as there are other criticisms of the decision which need to be addressed. It is suggested that the Judge did not have regard to the First Appellant's explanation for not mentioning the arrest warrants and beatings of her son in the screening interview. That is not a justified criticism as this was expressly considered in paragraph 73 where he claim to have been distressed was raised. It might be added that there had been a significant distance in time before the First Appellant was being interviewed and so had had time in which to collect herself when being questioned.
11. The asylum interview is the time for an Appellant to expand on the basics of the claim as the grounds of application observe. However the matters were being raised for the first time and not expanded upon. The Judge had to consider the Appellant's explanation, did so and was entitled to reject it.
12. The Judge was obliged to consider the question of delay in making the claim and did so. She did not treat the fact of the delay as inevitably leading to the conclusion that the Appellants claim was unreliable but was entitled to treat it as a factor.
13. The suggestion that the Judge applied too high a standard of proof in paragraph 83 is without merit. In that paragraph the Judge simply summarised the findings made and the lack of evidence that might have assisted. The Judge had set out the correct burden and standard of proof in paragraph 62 of the decision and there is nothing in the decision that would suggest that she applied a higher standard. A Judge is entitled to have regard to the absence of evidence that might have been expected and the obligation is on Appellants to provide assistance in the investigation of their claims.
14. Any decision of the First-tier Tribunal has to be read fairly and as a whole. The grounds have taken aspects out of context and have sought to argue that they carry a weight that is not justified. Read as a whole the decision of the Judge was justified and for the reasons given. The one error, in relation to the issuing of the visa, is not material to the decision made and does not infect the other material findings set out. There is no material error in the decision which stands as the disposal of the Appellants appeal in this case.

CONCLUSIONS
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
I do not set aside the decision.

Anonymity
The First-tier Tribunal made an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.
I continue that order (pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.)

Fee Award
In dismissing the appeal I make no fee award.

Signed:
M F Parkes
Deputy Judge of the Upper Tribunal (IAC)

Dated: 5th September 2016