Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/12818/2015

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On Tuesday 24 January 2017
On Monday 27 February 2017

Before

UPPER TRIBUNAL JUDGE SMITH

Between

MR F L
(ANONYMITY DIRECTION MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Harding, Counsel instructed by Kilby Jones solicitors LLP
For the Respondent: Ms A Brocklesby-Weller, Senior Home Office Presenting Officer

Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
Although anonymity was not granted at an earlier stage of the proceedings the case involves protection issues. It is appropriate to make an order for anonymity. Unless and until a tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his 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.

DECISION AND REASONS
Background
1. The Appellant appeals against a decision of First-Tier Tribunal Judge Dineen promulgated on 15 August 2016 ("the Decision") dismissing the Appellant's appeal against the Secretary of State's decision dated 2 October 2015 refusing his protection and human rights claims. The appeal against the Decision relates only to the protection claim.
2. The Appellant is a national of Albania. He was born on 12 December 1997. He arrived in the UK in January 2015 in the back of a lorry and claimed asylum on 19 January 2015. He was then aged seventeen.
3. The basis of the Appellant's claim is that he began a sexual relationship with his paternal cousin when he was aged about fifteen years old, in 2013. He claims that they were together at her house in December 2014 and that he was observed leaving the house in circumstances where the relationship was discovered. He says that his cousin then admitted the relationship to her mother. The Appellant says that he fears retribution from his own father and his paternal uncle who were abroad at the time. He says however that it was their intention to kill him for having brought dishonour on their families.
4. The Appellant also claims to be at risk because, having reached the age of sixteen years, he had become the target of a blood feud from a number of families, members of whom have been murdered by the Appellant's father's cousin. It is claimed that this individual (AL) has recently been extradited back to Albania and is subject to a lengthy criminal sentence on account of his activities.
5. The Judge disbelieved both elements of the Appellant's claim for reasons which are set out at [24] to [35] of the Decision. The Appellant challenges those findings for reasons which I set out below.
6. One final factual aspect is raised by the Appellant in his appeal against the Decision. That relates to the timing of the promulgation of the Decision. The hearing took place on 25 February 2016. The Decision was promulgated on 15 August 2016, nearly six months later. The Judge refers to the delay at [24] of the Decision where he says that he considered the evidence and submissions "both immediately after the hearing, and in the three months following it and thereafter".
7. Permission was granted by Upper Tribunal Judge Chalkley on 8 December 2016 in the following terms:-
"[1] Quite apart from the fact that the determination appears not to have been signed until over 5 months after the hearing, I believe that it is properly arguable that the First Tier Tribunal Judge may have erred in failing to demonstrate that:
he had considered the appellant's statement when describing the claims as being "very vague"; and
he had considered the country background evidence submitted to him in order that he could put the claim into context
[2] All challenges may be argued."
8. Judge Chalkley then went to make the following direction:-
"A Subject to any observations either party may wish to make to me within 14 days of the date this Grant of Permission is sent to the parties by the Tribunal, I am proposing to remit this appeal to the First-Tier Tribunal."
9. No observations were sent in accordance with that direction until 10 January 2017 when the Presenting Officer's Unit wrote to the Tribunal in the following terms:-
"Upper Tribunal Judge Chalkley considered the complete grounds of appeal (it appears previously only the first 5 paragraphs were sent) and deemed it appropriate to remit the matter back to First-tier Tribunal. Having considered the papers in this case the respondent does not oppose this course of action."
No reasons were given for taking that course. Mr Harding indicated that he had not seen that letter until the day of the hearing and he was therefore prepared to argue the case. Although I originally read that letter as a concession by the Respondent that there is an error of law, having reflected on it, I consider it is no more than a response to Judge Chalkley's direction and an indication that the Respondent did not oppose remittal. It does not concede that there is an error of law in the Decision. Even if it were a concession, in the course of the hearing, when pressed, Ms Brocklesby-Weller withdrew any concession reflected in that letter.
10. It is not clear why the file was not referred back to Judge Chalkley when no observations were received. However, it is clear from the direction that he had not in fact found an error or law or reached a conclusive view as to remittal. Neither party suggested that I was bound to remit the appeal in light of that direction or the Respondent's letter (insofar as that amounted to a concession and was maintained). Both representatives agreed that the appropriate course was for me to hear the matter in order to determine whether an error of law had in fact been made and if I so found, to re-make the Decision or remit the appeal for rehearing to the First-Tier Tribunal.
11. Mr Harding did not claim that the Appellant was prejudiced by that course of events, in particular since he had not seen the Respondent's letter previously. He did however, in submissions, note the rather unusual position he found himself in of arguing a case where a Judge had granted permission in quite strong terms and where the Respondent did not oppose remittal presumably in recognition that there was an error of law (albeit any concession was later withdrawn). I have borne in mind, in particular, the terms of the grant of permission and the fact that the Respondent was prepared initially to concede remittal when considering whether there is an error of law in the Decision. I have, of course, though had the benefit of a fuller consideration of the grounds than at the permission stage and a fuller review of the evidence directed by the very able submissions on both sides.
The grounds and submissions
12. I start with the issue of delay in promulgation of the Decision. Mr Harding accepted that delay in itself would not be a reason for finding an error of law. Whether it renders the Decision unsafe depends on the impact of the delay. That is consistent with what is said by the Court of Appeal in the case of SSHD v RK (Algeria) [2007] EWCA Civ 868, itself relying on the observations of Potter LJ in the case of Sambasivam v SSHD (2000) Imm AR 85 (see in particular [23] of RK (Algeria).) He submitted however that in this case, the delay might be the reason why the Judge had failed to set out the evidence in any detail in the Decision. He accepted however, that if the reasoning in the Decision could not otherwise be criticised, the delay would not in and of itself be reason for finding an error of law.
13. Mr Harding relied on the Appellant's grounds and expanded upon those in oral submissions. He began in relation to the findings on the blood feud claim. He relied on the case of EH (blood feuds) Albania CG] [2012] UKUT 00348 (IAC) ("EH"). He relied in particular on [58] of that decision which notes that very few children are involved in blood feuds and that some of those subject to blood feuds avoid the risk only by self-confinement. He submitted that this undermined the Judge's finding at [26] that the Appellant had not been subject to self-confinement to avoid a blood feud which was on his own case long-standing. The Appellant's case is that he was a child at that time and therefore unlikely to be targeted in the blood feud.
14. Mr Harding accepted that the Appellant had not mentioned the risk from this source in his initial screening interview (see [27] of the Decision) but noted that the Appellant had provided what he saw as the main risk factor (namely the relationship). The Appellant had however raised it in his statement submitted with the SEF and the Judge had failed to take that into account. Further, the Appellant explained in answer to [Q65] of the interview why he did not raise this earlier (because he was afraid). Mr Harding accepted that the Judge could reject that explanation but had failed to engage with it. Nor had the Judge taken into account in this regard the Appellant's age. He was under eighteen at the date of interview. Mr Harding submitted that it would be understandable for the Appellant not to mention this at the first interview as the blood feud was longstanding and the Appellant would be concerned about the more immediate threat as he perceived it.
15. In relation to [28] of the Decision, Mr Harding submitted that the reasons there given were not sufficient reasons for disbelieving the Appellant. The Appellant had always been clear what he did and did not know about the blood feud. Mr Harding drew my attention in this regard to the Appellant's answers at [Q27] to [Q30] of the asylum interview. Mr Harding pointed out that there was no inconsistency in the Appellant's account and the Judge should have considered whether this was simply a lack of knowledge or evidence of a dishonest claim.
16. At [29] of the Decision Mr Harding said that the Judge appeared to require corroborative evidence that the Appellant's father and uncle were living outside Albania because of the blood feud. Mr Harding said it was difficult to conceive what further evidence could be forthcoming and the requirement for corroborative evidence suggested that the Judge was not applying the lower standard.
17. Finally, Mr Harding noted that the Judge failed to have regard to the EH and had not considered whether the Appellant's claim in relation to the blood feud was consistent with that guidance. He also noted that the Judge had failed to take into account the material in the Appellant's and Home Office bundles which confirms the existence and criminal conviction of AL who the Appellant says is the source of the blood feud.
18. Turning then, to the claim based on the relationship, Mr Harding submitted that the Judge at [31] was imposing a "cross cultural comparison" by applying his own views about what a rational and logical person would do in this situation rather than taking account of what might be the behaviour of "teenagers in love". Mr Harding repeated that this suggested that the Judge had not adopted the correct standard of proof. He also drew my attention to the Appellant's statement in relation to this element of the claim which, he said, contained a reasonable degree of detail which the Judge has failed to consider. It was not therefore clear that the Judge had taken this evidence into account and, if so, why he did not give the Appellant the benefit of the doubt.
19. A similar point was made in relation to [32] of the Decision. Mr Harding accepted that there was some discrepancy in the Appellant's evidence but said that this was not enough to undermine the Appellant's credibility if I accepted his other points. He also noted, as I refer to above, that the Appellant was a minor at the date of interview and this has not been taken into account when considering the discrepancies set out at [32] and [33] of the Decision.
20. In relation to [34] of the Decision, Mr Harding pointed out that the Appellant said that he had no contact number for his family. That explanation for the failure to make contact with his family is not taken into account by the Judge.
21. In response, Ms Brocklesby-Weller accepted that the Respondent had not opposed remittal of the appeal. She also pointed out though that no reason was given, it was not indicated that any error of law had been accepted and she said that she would not have made the concession in this case if she was considering it. The only point which she thought might have given rise to the agreement to remit was the Judge's finding that the Appellant's evidence about the blood feud was vague when it was the Appellant's case that he did not have much knowledge about the blood feud.
22. That aside, Ms Brocklesby-Weller said that, but for the Respondent's letter, she would have submitted that the Decision contained cogent findings. When pressed on the issue in the course of Mr Harding's reply, Ms Brocklesby-Weller withdrew any concession made by the letter. I therefore record her submissions as to why the Decision should be upheld.
23. In relation to the blood feud, Ms Brocklesby-Weller pointed out that there was a lack of detail in the Appellant's case. The guidance in EH could not assist him as he was not claiming to have been in self-confinement, whether or not that was said to be because he was a minor. There was nothing to suggest that he was at risk on account of the blood feud. It was accepted that blood feuds exist in Albania so the general guidance in EH was irrelevant. The reason why the Appellant's claim failed was because there was no detail. The Judge found at [29] of the Decision that the Appellant's motivation was for economic reasons to seek employment and not because of any blood feud. He was entitled to reach that finding.
24. In relation to delay in promulgation of the Decision, Ms Brocklesby-Weller noted what was said at [24] of the Decision but submitted that the delay makes no difference in this case as the factual matrix is not in dispute. She submitted that the Appellant's grounds were based on a disagreement with the findings and not a submission that any of the evidence had been misunderstood.
25. As regards the risk based on the relationship, Ms Brocklesby-Weller submitted that there was a fundamental inconsistency in the Appellant's case. He said that he and his cousin had continued the relationship in secret for two years aware of the need for this. However, the Appellant claims that the relationship became public as a result of him leaving his cousin's house "whilst still fastening his trousers" and kissing her at the entrance to the house. This public display of affection was inconsistent with the Appellant's claim that he recognised the need for secrecy. That did not involve any "cross-cultural comparison" of the type asserted by the Appellant.
26. Following discussions, both parties agreed that, if I found an error of law, it would be appropriate to remit the appeal as the grounds are a challenge to the credibility findings.
Discussion and conclusions
27. I deal first with the issue of delay. I do not need to dwell on this unduly as both parties accepted that whether delay in promulgating a decision amounts to an error of law depends on the fact-sensitive context. I simply record what is said by the Court of Appeal in RK (Algeria) at [23] about the principles to be applied as follows:-
"Miss Chan's brief is in effect to submit that, of itself, a delay of about six months until preparation of the decision, with or without the gross further delay thereafter, represents such a lamentable failure on the part of the system that the only fair reaction of an appellate court is to require the exercise to be undertaken again. When in the course of argument I suggested to her that, were her submission upheld, all judges and tribunal chairmen should, in cases in which their decisions were not fully prepared by the expiry of six months, cease work on them, she, in a way reasonably, qualified her submission. For the length of delay which would trigger the need for a rehearing under her suggested principle would of course depend upon the complexity of the decision. I also accept that the anxious scrutiny to be applied to immigration cases might make them more appropriate candidates for the sort of principle which she purports to enunciate. But, even as thus qualified, I cannot accept her principle. For she has failed to show, any nexus between the delay and the safety of the decision."
[my emphasis]
28. As a result, it is necessary to consider whether a sufficient nexus has been shown. I accept that this is a case which turns on credibility. This is a factor which may tend towards finding that the delay is such as to render the Decision unsafe if the Appellant could show that the Judge had failed to consider evidence or had misunderstood his case which might be explained by the passage of time before the Decision was written.
29. I turn then to consider the substance of the Appellant's grounds. I consider them separately in relation to each of the two claims which is the way in which Mr Harding formulated his submissions.
30. I deal first with the claimed blood feud. The Judge's reasons for disbelieving this claim are set out at [25] to [39] of the Decision. In summary, the Judge found against the Appellant because he found that the Appellant had not gone into hiding when in Albania previously, that the Appellant's assertion that other men in the family had left Albania to avoid the feud was unsupported by evidence, that the Appellant made no reference to this as a risk when first questioned about his claims and that the details of the claim were very vague.
31. Mr Harding accepted that the claim was not made at the initial interview. He proffered what he said was a reasonable explanation for this namely that the Appellant had provided details of what he saw as the most immediate threat. However, the questions at the screening interview are clear. The Appellant was asked his reason for coming to the UK and he referred to the threat from his family arising from the relationship with his cousin (Q3.1). He was then asked if there were any other reasons (Q3.2). With his SEF form, the Appellant provided a witness statement which raised this risk for the first time. It would have been reasonable for that statement to explain why he had not raised it before. At interview, when asked about the discrepancy, he said only "I was afraid then. When I found solicitors I did tell them everything." After the decision letter and for the purposes of the appeal hearing the Appellant provided another statement. That does not contain any other explanation for not raising this claim earlier. The explanation now offered differs from the explanation which the Appellant himself gave. The Judge was entitled to find the explanation given not credible [27] and to hold against the Appellant this inconsistency.
32. The basis of the Appellant's claim in relation to the alleged blood feud is set out at [24] to [26] of his first witness statement. He refers to being at risk because he is "now old enough" to become a target and says that other members of his family were targeted in the past and had to flee Albania. At that stage, he said only that other cousins had to leave. At interview, he said that his uncle had to leave. He explained that he would not have been targeted before he was sixteen. The Judge noted this explanation at [19] of the Decision. However, as the Respondent noted in her decision letter, the Appellant turned sixteen on 13 December 2013. The Appellant did not leave Albania for more than a year after that.
33. For that reason, the Judge was entitled to note at [26] that "notwithstanding his attainment of the age of 16", the Appellant had continued to go to school, had gone to a nearby town to get a passport in November 2014 (before incidentally he claims to have encountered problems arising from the relationship) and had gone alone to his girlfriend's house. The Judge therefore clearly understood that it was the Appellant's case that he would not have been targeted until he was aged sixteen. However, the Judge was entitled to rely on the fact that the Appellant did not go into hiding after he turned sixteen and did not leave Albania until a year later. The Judge does not reject the Appellant's assertion that he would not have been targeted until he was aged sixteen and therefore there was no need for the Judge to refer to this aspect of the headnote in EH.
34. As to the substance of the blood feud claim, the Appellant was questioned about the claim at [Q70] to [Q124] of the asylum interview. He was unable to say which families were involved and where they lived, when the feud started and who declared it, who exactly had left Albania because of the feud and when or provide details of any killings which had occurred because of the feud (as opposed to the murders committed by the man who the Appellant says is his father's cousin). He also said that those family members who had left returned from time to time and he provided very vague accounts of what those men did when they returned and whether they were in hiding. The Judge's summary of the Appellant's evidence in this regard at [28] of the Decision as "vague" is a fair one.
35. The Appellant had been found not credible by the Respondent because he could not give details of this aspect of his claim. Yet the Appellant's statement in response provides no further detail save to say that he would be found if he moved within Albania because the "feud families" have contacts with the police (when he professes not to know who those families are). It is for the Appellant to make out his case, albeit to a low standard. Given the complete lack of any detail of the feud, and lack of any particulars of he or his family having been attacked in the past, it is unsurprising that the Judge found the claim not to be credible. In light of the vague responses to the questions at interview about the male members of the family coming and going between Albania and other countries, the Judge was also entitled to find that those were equally consistent with them working abroad.
36. Finally, although the Appellant provided media reports about the murders which he claimed were at the heart of the blood feud, those reports only confirm that someone with the same surname as the Appellant has been convicted of a number of murders and has been extradited back to Albania to face imprisonment on that account. They do not corroborate the claim that a blood feud has arisen as a consequence of that man's actions. Nor incidentally do they prove any connection between that man and the Appellant.
37. The Judge has provided adequate reasons for rejecting the credibility of the Appellant's claim to be involved in a blood feud.
38. I turn then to consider the second claim based on the Appellant's relationship with his paternal cousin. Again, the Respondent had found the Appellant's claim not to be credible.
39. I am quite unable to find that the Judge has imposed what Mr Harding described as a "cross cultural comparison" by judging the claimed events of that evening against the behaviour of a rational and logical person rather than against that of teenagers who are in love. What is important is how the Appellant dealt with this in evidence. He had consistently said that the couple realised that their families would not accept the relationship and therefore they had been very careful to ensure that they were not discovered. He then claimed that they were discovered because a neighbour saw them kissing on the doorstep. His evidence in his second witness statement is not that they were unable to help themselves or had not thought of the consequences but that when they started kissing, the neighbour was not there but came out while they were kissing. In his first statement, the Appellant said that he was seen "still doing [his] trousers up" as he left the house and that they were kissing at the front door. Those actions clearly contradict what the Appellant said in his evidence about their understanding that they needed to keep the relationship secret which is how, on his account, it had remained undiscovered for so long.
40. Mr Harding did suggest at one point that there was no inconsistency because the Appellant did not say that they were kissing outside but only at the front door. However, the relationship would not have been discovered if they had not been seen and it therefore stands to reason that they must have been seen outside house or at the very least the front door must have been open.
41. There is therefore an inconsistency between the Appellant's claim that the couple needed to keep their relationship secret and the open display of affection which, on his account, led to them being discovered. It was for the Appellant to provide a satisfactory explanation for that inconsistency. He did not do so. The Judge was entitled to rely on that inconsistency as reason to disbelieve the Appellant's claim (see in particular [31] and [32] of the Decision). There were other inconsistencies such as the time of day when this occurred and who observed the couple (see [32] and [33] of the Decision). Mr Harding accepted that those inconsistencies were present in the Appellant's evidence.
42. I also reject Mr Harding's submission that the Judge has failed to take into account the substance and detail of the Appellant's evidence about the relationship. That evidence is summarised at [16] to [18] of the Decision.
43. For those reasons, the Judge was entitled to reject the Appellant's account to be at risk because of the relationship. There is no error of law in his reasoning.
44. Finally, I accept that the Judge has failed to note at [34] of the Decision, the Appellant's assertion that his family do not have a phone and he could not therefore have contacted his family to ascertain whether he was at risk from his father and uncle. Once it is accepted however that the Judge was entitled to find the claim based on the relationship not to be credible, any error in that regard is immaterial.
45. As I indicated at [28] above, the issue whether the delay in promulgating the Decision renders it unsafe depends upon a nexus between the criticisms which can be made of the Decision and the delay. The Appellant's grounds challenge the adverse credibility findings in the Decision and the delay could therefore be pertinent if, for example, the Judge failed to have regard to critical evidence or misunderstood the Appellant's case. However, for the reasons I give above, I am satisfied that this has not occurred in this case.
46. There is one further point which I need to deal with as Mr Harding submitted that the Decision does not fully recite the evidence given and he submitted that this could well be due to the Judge not having written the Decision for some time afterwards and therefore having forgotten what was said to him. I reject that submission. Whilst it is true that the Judge's consideration of the evidence at [26] to [34] of the Decision focusses predominantly on the written evidence, Mr Harding did not give any example of evidence given orally which supplemented that evidence and was ignored.
47. For the reasons given above, I am satisfied that the Decision does not disclose any error of law. I therefore uphold the Decision.

DECISION
I am satisfied that the Decision does not contain a material error of law. The decision of First-tier Tribunal Judge Dineen promulgated on 15 August 2016 is maintained.

Signed Dated: 24 February 2017

Upper Tribunal Judge Smith