Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/12593/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 06 October 2016
On 10 October 2016

Before

UPPER TRIBUNAL JUDGE blum

Between

MOHAMMED ABDULAI aka MADI QUEDRAOGO
(anonymity direction NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Tampuri, Counsel, instructed by Tamsons Legal Services
For the Respondent: Mr S Walker, Senior Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal against the decision of Judge of the First-tier Tribunal Clarke whose promulgated decision of 11 August 2016 dismissed the Appellant's appeal against the Respondent's decision of 07 September 2015 refusing his protection (asylum) claim.

2. The Appellant claims to be a national of Bukina Faso. The Respondent did not accept this claim and believed the Appellant to be a national of Ghana. The First-tier Tribunal Judge concluded that the Appellant was a national of Ghana despite the Appellant's production of an expired Burkina Faso passport and ID card. Permission was granted to appeal to the Upper Tribunal on the basis that the First-tier Tribunal judge failed to make findings on whether the original Burkina Faso passport was a genuine document, by finding that the Appellant failed to produce any linguistic evidence to support his claim to be from Burkina Faso when he gave his evidence in the Mossi language, in finding that the Appellant could have tried to renew his passport through a Burkina Faso embassy in London when there was no such embassy, and by misunderstanding the evidence given by the Appellant as to who sent him the Burkina Faso passport (whether it was the agent who sent the passport or the Appellant's family).

3. The following is not in dispute. The Appellant (in the identity of Mohammed Abdulai) applied for a six-month visit visa at the British High Commission in Ghana on 24 April 2012. In support of this application the Appellant offered a Ghanaian passport in the identity of Mohammed Abdulai. The Appellant entered the United Kingdom on 1 August 2012. The visa that had been issued to him expired on 2 November 2012. The Appellant overstayed. On 14 February 2015 the Appellant was encountered by police. The following day he was served with papers notifying him of his status as an overstayer. On 20 March 2015 the Appellant formally claimed asylum. In a decision dated 7 September 2015 the Respondent rejected the Appellant's asylum claim. The Respondent noted the Appellant's claim to be Madi Ouedraogo, a national of Burkina Faso, and that he had provided a copy of a Burkina Faso passport in this identity. The Respondent however attached significant weight to the application for entry clearance as a visitor made by the Appellant using the Ghanaian passport and the evidence that was produced in support of this application which included bank statements, his birth certificate, his daughter's birth certificate, and his marriage certificate, all in the identity of Mohammed Abdulai, a Ghanaian national. The Respondent retained a copy of the Ghanaian passport and noted that the Appellant had managed to exit Ghanaian passport control and cleared UK immigration control using this document. The Respondent went on to reject the substance of the Appellant's asylum claim on the basis that it contained a number of inconsistencies.

4. The First-tier Tribunal comprehensively disbelieved the Appellant's account. The judge drew an adverse inference under section 8 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 due to the Appellant's delay in claiming asylum. The judge noted that, at the hearing, the Appellant produced an original Burkina Faso passport which was issued on 23 January 2003 and which expired on 22 January 2008.

5. At [55] and [57] the judge recorded the Appellant as having initially stated that he obtained the Burkina Faso passport from the agent, Burger Osei, who had brought him to the United Kingdom. The Appellant stated that he had asked Burger to send him back the passport so that he would have proof of his identity if he were ever stopped on the streets of Britain. Having noted that the sender's name on the envelope in which the Appellant claimed the passport was sent was not that of the agent, the judge stated that the Appellant changed his evidence claiming that the agent told him he would speak to the Appellant's family and get them to send him proof of identity. The Appellant's evidence was that his mother sent him the passport and an accompanying letter. However the name on the envelope was not that of the Appellant's mother. The judge records that the Appellant was unable to give a satisfactory explanation as to the identity of the sender. The judge found that the Appellant's inability to give a satisfactory explanation as to the identity of the sender and the inconsistency in his evidence undermined his credibility.

6. The grounds contend that the Appellant never asked the agent to send him back his Burkina Faso passport. This however is not reflected in the judge's record of proceedings. On the basis of the oral evidence initially given by the Appellant at his hearing the judge was rationally entitled to conclude that the Appellant had given contradictory evidence. Moreover, the judge was rationally entitled to hold against the Appellant his inability to offer a satisfactory explanation as to the identity of the sender of the passport.

7. At [58] the judge noted that the Appellant failed to produce any linguistic evidence to support his claim that he was from Burkina Faso. The grounds, as expanded upon by Mr Tampuri at the Upper Tribunal hearing, asserted that the Appellant gave his evidence in the Mossi language and that Mossi was a language spoken in Burkina Faso but not in Ghana. The difficulty with this submission is that there was no evidence before the First-tier Tribunal judge that Mossi was a language not spoken in Ghana, and only spoken in Burkina Faso. Nor does it appear that any submissions were made to this effect. In the circumstances the First-tier Tribunal judge was undoubtedly entitled to comment on the absence of any specific linguistic evidence.

8. At [60] the judge drew an adverse inference from the Appellant's admission that he had not tried to renew the Burkina Faso passport through the embassy in London given that it had expired in 2008. The judge stated, "If the Appellant was genuinely from Burkina Faso, I find that he would have gone to the embassy and renewed his passport to prove that his fellow citizens accepted his claimed nationality. I do not find the Appellant's evidence that he had no plans to travel and did not know where the embassy was to be a persuasive answer. The Appellant is living at the mosque and could have asked someone at the mosque to tell him where the embassy was located. Alternatively, having secured himself representation for the hearing, he could have asked his representatives to assist him in renewing his passport or getting proof from his embassy that he was a national of Burkina Faso. The fact that the Appellant failed to do so significantly undermines the credibility of his claim that he is a national of Burkina Faso. I also attach weight to the fact that the Appellant has not gone to the Ghanaian embassy. If he was not Ghanaian he could have asked the Ghanaian embassy to confirm such a claim."

9. The grounds contend that the judge fell into legal error by assuming that there was a Burkina Faso embassy in London. The grounds assert that the nearest Burkina Faso embassy is in fact in Brussels. I am prepared to accept that the nearest Burkina Faso embassy is in Brussels and that judge wrongly assumed that there was an embassy in London. This mistake however fails to undermine the principle reasoning behind the judge's adverse credibility finding. The judge found it incredible that the Appellant failed to take reasonable steps to substantiate his claim that he was a national of Burkina Faso. It was reasonably open to the Appellant to have either sought to renew the Burkina Faso passport, which would have gone some way to supporting his claimed nationality, or to have approached the relevant Burkina Faso authorities and requested confirmation that he was a national of that country. Mr Tampuri submitted that the Appellant only received the Burkino Faso passport a short time before the appeal hearing but he was unable to provide any specific dates. In any event, there was no application before the First-tier Tribunal to adjourn the hearing to enable this evidence to be obtained. The Appellant was legally represented and, as the judge noted, his representatives would have been in a position to assist the Appellant in his attempts to either renew his passport or obtain other confirmation. The evidence before the First-tier Tribunal indicated that the Appellant had no idea as to the location of the nearest Burkina Faso embassy indicated that he failed to take any reasonable steps to confirm the authenticity of the Burkina Faso passport. In the circumstances it was open to the judge to find that such failure undermined the Appellant's credibility and the reliance the judge was able to place on the proffered passport.

10. Mr Tampuri submitted that the judge failed to make a specific finding as to the authenticity of the Burkina Faso passport and identity card. In so doing it was submitted that the judge failed to apply the principles enunciated in the case of Tanveer Ahmed [2002] Imm AR 318. Having holistic regard to the judge's decision, read as a whole, I cannot accept the submission. At [62] the judge noted that the Appellant had travelled to the United Kingdom on a Ghanaian passport. The judge stated, "Given my credibility findings, I'm not persuaded to the lower standard that the Appellant, despite providing an expired Burkina Faso passport is a national of Burkina Faso. Taking the evidence in the round, I come to the conclusion that the weight of evidence points to the Appellant being a Ghanaian national and I reject his claim that he is a national of Burkina Faso." It is necessarily implicit from this paragraph that the judge found the Burkina Faso passport to be an unreliable document. It was for the Appellant to prove, on the lower standard of proof, that he was a national of Burkina Faso. The adverse credibility findings referred to by the judge included the Appellant's delay in claiming asylum, the failure by the Appellant to confirm his asserted nationality by approaching the Burkina Faso authorities, the inconsistencies in his evidence relating to how the passport was sent to him, the finding that the Appellant had been evasive and vague concerning the Ghanaian passport he used (at [57]), and the fact that the Appellant had been able to obtain entry clearance by providing various forms of ID suggesting he was from Ghana and by being able to enter the United Kingdom using a Ghanaian passport. I am not persuaded that the judge was not rationally entitled to attach little weight to the Burkina Faso passport provided by the Appellant for the reasons given.

11. In any event, from [62] to [70] and [72] to [74] the judge gives a number of unchallenged reasons for rejecting the Appellant's account of what allegedly happened to him in Burkina Faso. The judge gave clear reasons for concluding that the Appellant's core account contained a number of significant consistencies and that other aspects of his core account were simply not plausible.

12. For these reasons I am not persuaded that the First-tier Tribunal's decision contains any material errors of law.

Notice of Decision

The First-tier Tribunal Judge did not make a material error of law. The Appellant's appeal is dismissed.

No anonymity direction is made.

Signed Date

Upper Tribunal Judge Blum 07 October 2016