Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00185/2019

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 4th June 2019
On 20 June 2019

Before

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

mr a. a.
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Miss Dirie, Counsel, ZD Spicer Zeb Solicitors
For the Respondent: Ms J Isherwood, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of Albania born on 11th June 2002. The Appellant left Albania on 31st May 2018 and travelled to Italy by plane and thereafter to France by bus and to Belgium by train where he stayed until 20th June 2018. On 21st June 2018 he arrived in the UK clandestinely via a lorry. On 25th June 2018 he claimed asylum. The Appellant's claim for asylum was refused by Notice of Refusal on 27th December 2018. At the date of refusal he had been granted leave because he was an unaccompanied asylum-seeking child but the main Notice of Refusal followed the application by the Appellant for asylum on the basis of his membership of a particular social group, namely that he was a gay male.
2. The Appellant appealed and the appeal came before Judge of the First-tier Tribunal Sweet sitting at Hatton Cross on 6th February 2019. In a decision and reasons promulgated on 12th February 2019 the Appellant's appeal was dismissed on all grounds.
3. Grounds of Appeal were lodged to the Upper Tribunal on 12th February 2019. Those grounds contended that the judge had adopted an erroneous approach to credibility and had failed to give reasons and had failed to give proper consideration to the country background information. Attached to the Grounds of Appeal was an appendix making specific reference to the GA-Europe Annual Review on the Human Rights Situation of LGBTI people in Europe 2016 and the UNHCR Guidelines on International Protection: Child Asylum Claims.
4. On 18th March 2019 First-tier Tribunal Judge O'Brian refused permission to appeal. On 10th April 2019 renewed grounds of permission to appeal were lodged to the Upper Tribunal. Miss Dirie confirms that those grounds are identical to the original grounds and were considered by Judge O'Brian.
5. On 7th May 2019 Upper Tribunal Judge McWilliam granted permission to appeal. Judge McWilliam considered that it was arguable that the finding in respect of the Appellant's sexuality was arguably inadequately reasoned. She considered that Ground 2 was dependent upon Ground 1 however it was arguable that the judge erred in respect of risk and relocation for the reasons raised and the grounds.
6. On 21st May 2019 the Secretary of State responded to the Grounds of Appeal under Rule 24. The Rule 24 response opposes the Grounds of Appeal and points out that the Appellant had been granted permission for leave to appeal on the basis that an arguable error of law was disclosed in relation to the First-tier Tribunal Judge's assessment of the Appellant's sexuality. However, it contends that contrary to the grant of permission the First-tier Tribunal Judge properly considered the Appellant's claim to be at risk of persecution on the basis of his sexuality and the Respondent submits that the credibility of an Appellant's account is primarily a question of fact and that the determination of that question of fact has been entrusted to the Immigration Judge. He goes on to contend that the First-tier Tribunal Judge thoroughly evaluated the Appellant's claim and made adverse credibility findings that were properly open to him on the evidence.
7. It is on that basis that the appeal comes before me to determine whether or not there is a material error of law in the decision of the First-tier Tribunal Judge. The Appellant appears by his Counsel, Miss Dirie. Miss Dirie is extremely familiar with this matter. She appeared before the First-tier Tribunal and she is the author of the Grounds of Appeal. The Secretary of State appears by her Home Office Presenting Officer, Ms Isherwood. The First-tier Tribunal Judge had granted the Appellant anonymity. No application is made to vary that order and the anonymity direction will remain in place.
Permission/Discussion
8. Miss Dirie advises that the starting point is paragraph 31 of the judge's decision. Therein the judge accepts that the Appellant has not attempted to embellish his account or claim that he had sexual relations with A. Nor did he claim to have had sexual relations while in the UK. Consequently, she submits that the basic starting point is that the Appellant's core account is that he "outed" in Albania and consequently the judge erred in focusing the failure of the Appellant to claim asylum in a country prior to arriving in the UK. She submits that in adopting such an approach the judge failed to consider that the Appellant (who was then a child) was acting under the control of agents and whom his mother had left him and that it is unfair to suggest that the Appellant who was a child with limited schooling would have the ability to leave the people his mother had arranged for him to be placed with and to contact the authorities.
9. She points out that at paragraph 10 of the Appellant's SEF witness statement he actually states:
"My mother left me with an agent and my mother told me that these people would look after me."
She thereafter takes me to paragraph 32 of the decision. The judge has noted that there are "issues as to how the journey to Italy was funded" when the Appellant's mother did not work and the Appellant had, it was contended, been vague about his father's whereabouts, his occupation and whether he was able to provide sufficient financial support for the family. He points out that the Appellant had never claimed to know how his mother was able to fund his journey out of Albania and that she had simply never told him and that it was unfair again for such minor point to be taken as adversely affecting the Appellant's credibility. The judge had previously noted that the Appellant had not attempted to embellish the core of his account. She submits that in adopting such an approach the judge had erred in drawing adverse credibility inferences from the Appellant's lack of knowledge.
10. Thereafter Miss Dirie takes me to paragraphs 32 and 35 of the judge's decision and the contention that the Appellant had been vague regarding the whereabouts of his father and his occupation pointing out that this is incorrect and that the Appellant's evidence had remained consistent. At paragraph 32 the judge notes:
"Nor was any reason provided for the Appellant failing to maintain contact with his mother."
She submits that that is incorrect and refers me to the concluding questions in the Appellant's interview where he gave the answer:
"I fear that if I do (contact mother), she will contact my uncle."
11. Consequently, she submits that the judge has given no substantive reasons for rejecting the Appellant's account and instead has adopted an erroneous approach to credibility on immaterial points.
12. Secondly, she takes me to the contention that the judge has failed to consider the background information. The finding made at paragraph 34:
"Even if I took a different view on his sexuality, I am not persuaded that he would be persecuted on return.".
Here she submits the judge errs in adopting such an approach which fails to consider and engage with the considerable amount of background evidence that is available to show that pervasive homophobic attitudes are to be found throughout Albania which means that the Appellant would be at risk on return and that there would not be a sufficiency of protection nor would internal relocation be an alternative. She points out that the judge has given an absence of reasons for failing to consider and rejecting country information evidence. For all these reasons she submits that there are material errors of law that make the decision unsafe and she asked me to set aside the decision and to remit the matter back to the First-tier Tribunal for rehearing.
13. In response Ms Isherwood begins by addressing the second ground submitting that there has never been a challenge made prior to today that the findings of the judge at paragraph 35 where the judge concluded that the Appellant would be able to return to his family where he lived with his mother and two younger brothers and his paternal grandparents was wrong. Consequently, she submits the contention that the Appellant would be returning effectively as an unaccompanied minor is not a conclusion that remains sustainable.
14. She submits that these issues were addressed at paragraph 23 in the judge's decision and consequently the argument that has been put forward is mere repetitive disagreement with the findings of the judge. She states that the judge has noted the documentary evidence. Paragraph 34 is just an alternative finding to the main conclusion and that paragraph 35 just applies to the individual circumstances of the case. Consequently, she contends that the judge has actually taken account of the background evidence.
15. Thereafter she turns to the first ground and submits that the Appellant is not someone of limited education and that he was actually educated up to year 9 and that the Tribunal is still entitled, even though the Appellant is a minor, to disregard and not accept his evidence. The judge has noted, she submits throughout the determination, that the Appellant is of a young age.
16. She takes me through the decision pointing out that the Appellant's foster parent gave evidence, as did the Appellant, and that the judge at paragraph 28 has made due reference to the Appellant's age, and has summarised the Appellant's account at paragraph 29. Further she goes on to note that the judge has addressed the Section 8 Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 issues at paragraph 30 and that whilst the Appellant's young age is accepted these factors cannot be ignored. She submits that there is no corroborative evidence to the Appellant's testimony and that the findings made by the judge are ones that he was entitled to make. She asked me to dismiss the appeal.
The Law
17. Areas of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on fact or evaluation or to give legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
18. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue of argument. Disagreement with an Immigration Judge's factual conclusion, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge's assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence which was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative action has been rejected or can be said to be possible. Nor is it necessary to consider every possible alternative inference consistent with truthfulness because an Immigration Judge concludes that the story is untrue. If a point of evidence of significance has been ignored or misunderstood, that is a failure to take into account a material consideration.
Findings on Error of Law
19. The starting point of this appeal and the submissions before me today relate to the Appellant's credibility. A proper approach to credibility will require an assessment of the evidence and of the general claim. In asylum claims relevant factors would be the internal consistency, the inherent plausibility and the consistency of the claim with external factors of the sort typically found in country guidance. I accept that it is theoretically correct that a Claimant need do no more than state his claim, but that claim still needs to be examined for consistency and inherent plausibility and in nearly every case external information against which the claim can be checked will be available. In this instant case some external information does lend a degree of support to the claim.
20. The judge has made credibility findings having firstly accepted that the Appellant has not embellished his claim. In reaching those findings the judge has made an assessment that the Appellant could have claimed asylum in one of the numerous countries he crossed before reaching the UK. Whilst I accept that as a matter of law such findings can be held as damaging to credibility, they have to be considered against the age of the Appellant, the evidence that his mother placed him in the hands of agents and the vulnerability of a young adult making his way across Europe. In such circumstances I consider that the weight given to this factor, whilst one that would be taken into account when assessing the claim generally, is unduly onerous.
21. Thereafter there are other issues which are raised. The judge has made a finding with regard to a question posed to the Appellant stating that he had not answered it with regard to contact of his mother. This is clearly wrong and must be an oversight because the Appellant has addressed this in the question and answer to be found at pages 32/33 of his interview whilst a minor.
22. As submitted by Miss Dirie the issues upon which the judge has made adverse credibility findings are on the face of it very minor. In addition, the judge has failed to give full and proper consideration to the country information and has failed to give reasons for his findings relying simply on a statement that the Appellant can return to live with his mother and grandparents.
23. In such circumstances I am satisfied that there are errors of law and that they are material in that they go to the ultimate finding by the judge on credibility particularly as that has led to the judge's conclusion that whatever the Appellant's reasons were for fleeing Albania it was not on the grounds of his alleged sexuality. For all these reasons I am satisfied that the decision is unsafe and the correct approach is to set aside the decision and to remit the matter back to the First-tier Tribunal Judge for rehearing with none of the findings of fact to stand. Whilst I have found material errors of law that does of course not mean necessarily that a judge on rehearing the matter will come to a different conclusion to that of the First-tier Tribunal Judge. It will be a matter for consideration by the judge on a complete rehearing of the evidence.
Notice of Decision

The decision of the First-tier Tribunal Judge contains material errors of law and the decision is set aside and the matter is remitted back to the First-tier Tribunal for rehearing. The following directions are given:-

1. On the finding that there are material errors of law in the decision of the First-tier Tribunal Judge the decision of the Tribunal is set aside with none of the findings of fact to stand.

2. The matter is remitted back to the First-tier Tribunal sitting at Hatton Cross on the first available date 28 days hence with an ELH of three hours.

3. The appeal is to be before any Judge of the First-tier Tribunal other than Immigration Judge Sweet or Immigration Judge O'Brian.

4. That there be leave to either party to file and serve an up-to-date bundle of such subjective and/or objective evidence upon which they seek to rely at least seven days prior to the restored hearing.

5. That an Albanian interpreter do attend the restored hearing.

The First-tier Tribunal Judge granted the Appellant anonymity. No application is made to vary that order and none is made.

Signed Date 18 June 2019

Deputy Upper Tribunal Judge D N Harris

TO THE RESPONDENT
FEE AWARD

No application is made for a fee award and none is made.

Signed Date 18 June 2019

Deputy Upper Tribunal Judge D N Harris