Tribunal decisions

The decision

IAC-BH-PMP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11499/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 13th January 2017
On 30th January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE ZUCKER

Between

MR MOHAMMED ABU-ANAS
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms R Frantzis, Counsel instructed by Bankfield Heath Solicitors
For the Respondent: Mr M Diwnycz, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a person whose nationality is in dispute. He contends that he is Libyan whereas the Secretary of State contends that he is Moroccan. His date of birth is recorded as 1st August 1985.
2. On or about 29th December 2014 the Appellant made application for international protection as a refugee on the basis that he was homosexual. On or about 7th August 2015 a decision was made to refuse the application and the Appellant appealed. His appeal was heard on 2nd August 2016 by Judge of the First-tier Tribunal Hindson sitting at Bradford. Judge Hindson dismissed the appeal on all grounds. Not content with that decision, the Appellant made application for permission to appeal to the Upper Tribunal. The application was refused before the First-tier Tribunal but on 16th November 2016, in a renewed application, permission was granted by Upper Tribunal Judge McWilliam. She found in granting permission that the judge arguably made three errors in that he:
(i) did not consider the evidence of Dr David Sneddon, a social anthropologist with a special interest in North Africa, and in particular North East Morocco, whose report is dated, 11 April 2016, in the round;
(ii) applied the wrong burden and standard of proof in respect of nationality;
(iii) misinterpreted the conclusion in the SPRAKAB Report.
3. It was common ground that where, as in this case, the Secretary of State had contended for a specific nationality that the burden of proof was upon her with the standard of proof being the ordinary civil standard. Where the Appellant contended for a particular nationality, in this case Libyan, then the burden was upon him to the lower standard.
4. In refusing to accept the Appellant's account, the Secretary of State had made reference to inaccurate answers given in interview with reliance also being placed on a language analysis test. The language analysis test was conducted on the hypothesis that the Appellant belonged to an Arabic linguistic community found in Bengasi, Libya. The alternate hypothesis was that the Appellant belonged to an Arabic linguistic community found in Morocco. After an analysis of the Appellant's speech the author of the report stated:
"The language analysis somewhat suggests that the results obtained more likely than not are inconsistent with the linguistic community as stated in the hypothesis (that was with respect to the Appellant being Libyan)."
5. As to the alternate hypothesis it was said:
"The language analysis somewhat suggests that the results obtained more likely than not are consistent with the linguistic community as stated in the hypothesis."
6. At paragraph 26 of his Decision and Reasons Judge Hindson wrote:
"I have considered the language analysis report. It is highly technical and, in my view, unnecessarily complex in its own use of language. However, the conclusions are that, on balance, the Appellant is more likely to be from the north of Morocco than from Bengasi, Libya. The author of the report does not comment on whether his language is consistent with being brought up in Libya with a Moroccan mother. I accept that the report is not conclusive evidence that the Appellant is Moroccan."
7. Ms Frantzis took the point in her submissions to me that the report did not conclude that the Appellant was more likely to be from North Morocco than from Libya but only that the accent with which he spoke was more likely to be that found in Morocco than Libya and that there was therefore a nice distinction to be drawn.
8. Following from that submission, she submitted that having erred in the factual premise upon which the finding was made, without stating where the burden of proof lay nor to which standard, the general findings of credibility which were adverse to the Appellant were unsafe because it could not be known to what extent the judge had allowed that error to influence those general findings.
9. Further Ms Frantzis relied on the report of Dr David Sneddon dated 11th April 2016 which in her submission had been inadequately addressed by the judge. Dr Sneddon is a social scientist with qualifications in social science and social anthropology. His doctoral research and thesis was concerned with economic and political change in North East Morocco which is where he first learnt Arabic.
10. Dr Sneddon was provided with the language analysis report though, as Mr Diwnycz pointed out, Dr Sneddon does not hold himself out as a linguist. Dr Sneddon sets out the background to the Appellant's claim and notes the Appellant's explanation as to his lack of knowledge about Libya as identified by the Secretary of State in the refusal letter; the Appellant contending that he had grown up on a farm and having always lived in a village, had not been to school, and therefore had limited knowledge of Libya. Dr Sneddon takes the view (though this was a matter entirely for the judge) that the Appellant's explanations as to why he had a lack of knowledge of Libyan geography was plausible. More generally as to historical questions, Dr Sneddon states that because Libyan history is complex, it was not surprising that the Appellant did not know the answer to questions put. Dr Sneddon then sets out in some detail the history of Libya before addressing the risk on return to the Appellant in Libya. Dr Sneddon states that the Appellant would be at risk there because of his homosexuality, though really it was never in dispute that were the Appellant homosexual he could not be returned to Libya (see paragraph 31 of the refusal letter) nor indeed to Morocco (see paragraph 34). Dr Sneddon concludes on the basis of the evidence that the Appellant was very likely to be Libyan as claimed.
11. At Appendix 1 of the report Dr Sneddon addresses the linguistic analysis report. Dr Sneddon opines that the report was not conclusive. I note however that is an observation which Judge Hindson took into account. On the issue of language, in the substantive body of the report, at 4.31 Dr Sneddon states:
"I was able to take to [the Appellant] in Arabic and can confirm - especially as my own fieldwork was undertaken in the north east of Morocco, very near Oujda - that his speech could be taken for Moroccan Arabic, but also that it is not identical to the accent or word usage with which I am most familiar from my time in Morocco".
That part of Dr Sneddon's report is somewhat equivocal.
12. I agree that the judge erred in failing to state where the burden of proof lay when considering whether or not the Appellant was Moroccan. Clearly the burden of proof was upon the Respondent and the standard of proof was balance of probabilities. The only reference to the burden and standard of proof is to be found at paragraph 2 of the Decision and Reasons which appears to place the entire burden for all matters upon the Appellant to the lower standard.
13. The issue is whether this error was material. Though much was said about nationality, the core of the claim related not only to political opinion but to sexual proclivity in respect of which the judge found the Appellant's credibility lacking. I have to ask myself whether Ms Frantzis was right in her submission that the findings were unsafe given the flawed basis upon which the Judge determined that the Appellant was Moroccan.
14. I find, notwithstanding that error, that the credibility findings were open to the judge as to the core of the claim. The judge took into account the fact that the Appellant had been asked a number of questions about Libya and noted that the Appellant got many of the answers wrong. The judge made an astute observation, in my judgment when he said in response to the Appellant's explanation that he was uneducated, illiterate and spent his life relatively secluded on the family farm, that whilst that would explain why the Appellant did not know the answers to some questions, the Appellant in fact answered the questions but got them wrong which as the judge rightly observed was "somewhat different".
15. The judge also observed that in contrast to the Appellant not knowing the answer to some rather mundane questions, he correctly stated the date of the uprising, the name of the rebel militia and the like but when asked specifically about the demonstrations he attended, the Appellant became vague. I remind myself that the judge had the opportunity to view the witness; he heard the questions; and observed the manner in which the Appellant answered them. Some weight is to be given to that.
16. I have already made mention of the language analysis report. It is of note that the judge, at paragraph 26, took on board the observation of Dr Sneddon that the language analysis report was not conclusive. Clearly Judge Hindson read the appendix or otherwise he would not have been able to record that observation.
17. Judge Hindson went on to consider the Appellant's assertion that he had the particular accent that he had because his mother was Moroccan despite working on the farm every day with his father with whom he did not get on. Judge Hindson did not consider it credible that the Appellant would spend the vast majority of his time with his father yet his language would be mostly influenced by his mother. That was a finding entirely open to the judge and whilst, given the standard and burden of proof was not properly set out in relation to nationality, it was a factor which the judge was entitled to take into account in the general consideration of the Appellant's credibility. Indeed, the Appellant accepted the premise of the Respondent's case that the Appellant did not speak with a Libyan accent or at least did speak with an accent influenced by Moroccan.
18. Yet another significant observation by Judge Hindson, which informs the general credibility findings was the absence of any witness in support of the Appellant. It is trite law to observe that corroboration is not required in order to establish that an individual is a refugee. However, where there is evidence which might easily be adduced, but is not, that is a matter which a judge can take into account: TK (Burundi) [2008] EWCA Civ 722. The Appellant had claimed to be in a relationship with a Libyan man in the United Kingdom with whom he had been associating for the last eight months but that partner did not attend the hearing. The Appellant had said that that partner was fearful of arrest. However, as the judge fairly observed, since the judge had been informed that the Home Office were aware of this man, and where he lived, and could have been interviewed, it followed that that man, a potential witness, would have been no more at risk of arrest at the hearing than he would have been at home. The judge found that the reason for that witness not attending therefore was not credible. Finally, the judge observed that although the Appellant had said that he visited a gay club with his partner he was unable to name it nor say where it was or if membership was required.
19. I am driven firmly to the view that the error in the standard and burden of proof was not material to the eventual outcome (though it is necessary to remake the decision because of the positive finding that the Appellant is Moroccan). Further, I am driven firmly to the view further that the judge did in fact have regard to the report of Dr Sneddon, although he could have set it out more fully as part of the analysis. That said, at paragraph 31 the judge makes clear:
"In making my credibility assessment I have taken careful account of the report from Dr Sneddon. I agree with him that the language analysis is not conclusive or where the Appellant is from."
Reference is also made to Dr Sneddon's report at paragraph 27 of the Decision and Reasons.
20. If I am wrong and there were material errors of law such that I were required to re-make the decision, then applying the observations of the judge with respect to the evidence given at the hearing to which I have already referred, I would have had no difficulty whatsoever in being driven to the same conclusion, namely that the Appellant had not established the core of his claim being that he is homosexual and at risk were he be returned to Libya because of his political activities. I would not have been able to make a finding that the Appellant was Moroccan but equally given the Appellant's credibility I would not have been able to find to the lower standard that the Appellant had established that he was in fact Libyan.
21. For the avoidance of doubt I find that the finding of fact reached by the judge that the Appellant is Moroccan cannot stand but that is not material to the eventual finding of the judge that the decision of the Secretary of State was correct in that the Appellant was not entitled to international protection as a refugee nor any other protection.

Notice of Decision

The appeal to the Upper Tribunal is dismissed.

No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Zucker