Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00676/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 21st September 2016
On 4th October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE I A M MURRAY

Between

FITIM [S]
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mrs Hena, Counsel for Virgo Solicitors, London
For the Respondent: Mr Bramble, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of Albania born on 13th November 1999. He appealed against the decision of the Respondent dated 23rd December 2015 refusing him asylum and humanitarian protection in the United Kingdom. His appeal was heard by Judge of the First-tier Tribunal Walters on 6th July 2016. It was dismissed on asylum grounds, humanitarian protection grounds and human rights grounds in a decision promulgated on 1st August 2016.
2. An application for permission to appeal was made on behalf of the Appellant. Permission was granted by First-tier Tribunal Judge Ransley on 19th August 2016. The permission states that the judge may have failed to apply the correct burden and standard of proof regarding the Embassy in Tirana's faxed letter that was submitted by the Respondent at the hearing. The judge failed to explain why he gave such weight to the Embassy's letter when the Respondent had failed to provide a copy of the source documents on which the findings of the Embassy in Tirana were based. They state that the judge missed a key argument by the Appellant's Counsel on the inaccuracy of the document.
3. There is a Rule 24 response which states that the Respondent's assertion is that the Appellant provided incorrect information concerning his movements which materially damaged his claim. The burden of proof was on the Respondent to the balance of probabilities to demonstrate that the Appellant was not telling the truth in his account of his travels. The Appellant's account was core to his claim but the response states that the judge was entitled to place what weight he considered appropriate on the Respondent's verification and to include in that assessment that the Appellant accepted he was the person in the photograph attached to the British Embassy letter (paragraph 40). The judge found that further documentation would have been preferable but that the lack of it did not in itself render the Embassy reply as inaccurate. The response states that it was open to the judge to find that the Appellant had failed to establish his claim.
The Hearing
4. The Presenting Officer submitted that he accepts that there were no source documents with the British Embassy letter submitted by the Respondent.
5. Counsel for the Appellant submitted that there is no dispute that the burden is on the Respondent to the civil standard, to show that a document, on which she is relying, is accurate.
6. I was referred to paragraph 13 of the grounds of application which sets out the burden and standard of proof. Counsel submitted that the judge only refers to the burden of proof being on the Appellant and mentions nothing about the burden of proof being on the Respondent relating to the letter from the British Embassy in Tirana. She submitted that this is an important issue and I was referred to paragraph 44 of the decision, in which the judge refers to the British Embassy letter but again does not state that the burden of proof is on the Respondent relating to this document. She submitted that the judge has not given this anxious scrutiny.
7. I was referred to the British Embassy in Tirana's letter, dated 30th September 2015 and Counsel submitted that this letter is not accurate as although it states that the Appellant's father travelled into Albania from Kosovo in 2008 and there is no record of him travelling out of Albania after that and there is no evidence of when he left Albania to travel to Kosovo. Counsel submitted that this document from the British Embassy is therefore lacking but the judge has accepted its terms as supporting the Respondent's case. The letter refers to the Appellant's father's biometric passport being issued in 2011 but his father not having registered any travel since then. She submitted that this goes to the core of the claim and the judge has not properly reasoned his decision. With regard to the Appellant's photograph, which is attached to the Embassy letter, she submitted that this is not a good enough reason for the judge to accept the letter and dismiss the appeal.
8. She submitted that with regard to the letter from the Democratic Party of Albania which was submitted by the Appellant, the judge was wrong to give it no weight because the Appellant's uncle who supplied it was not at the hearing. She submitted that these two pieces of evidence have been treated totally differently and it is not clear whether the judge finds that the burden of proof is on the Respondent relating to the British Embassy letter. She submitted that the judge did not engage with the submissions.
9. The Presenting Officer submitted that the judge does not directly refer to the burden of proof being on the Respondent relating to the British Embassy letter, at paragraph 13 of the decision, but the judge has given proper consideration to all the documents before him and has applied anxious scrutiny to the answers given at the hearing.
10. With regard to the letters and responses not being attached to the British Embassy letter, the judge was aware of this and refers to it but still felt he could place weight on the document. He submitted that Counsel has stated that the Appellant's photograph which is on this document is not enough but at the hearing the Appellant accepted that it is his photograph and I was referred to the actual document and the words above the photograph. These refer to the photograph and state that the personal details of the subject Fitim [S] born on 13th November 1999 were extracted from TIMS (Albanian Border and Migration Database). He submitted that the personal details are correct and this information could only have come from TIMS. He submitted that this gives weight to the document and he submitted that had the judge quoted this in his decision, the point now raised as a material error of law would be otiose as the Respondent would then have satisfied the burden of proof. He submitted that the judge was entitled to rely on this document when coming to his decision.
11. The Presenting Officer submitted that the Appellant states that he left Albania at a certain time because his father had been threatened at that time. He submitted that there is no other way the Embassy could have got the information which is in its letter than from the sources quoted in the letter and when this information is considered, it is clear that the Appellant left Albania at an earlier date than he is now stating and that his father did not go with him. The Presenting Officer submitted that with regard to Counsel's submission that the British Embassy document is not accurate because there is nothing which states when the Appellant's father travelled out of Albania to Kosovo, this is not relevant. This application was made in 2015. The information is that the Appellant's father has not left Albania. He submitted that the judge was entitled to take all of these matters into account and give weight to the British Embassy letter.
12. The Presenting Officer submitted that the judge has not given the same weight to the Appellant's documents from the Democratic Party of Albania because the certificate which states that the Appellant's father is a DP member has no date on it and makes no mention of how long the Appellant's father has been a DP member or what his position is in the party. The judge also found that less weight could be given to it because the Appellant's uncle who had obtained this document did not appear to give evidence at the hearing. The Presenting Officer pointed out that the membership card of the Appellant's father was not issued until 1st February 2016.
13. He submitted that the judge gave proper reasons for giving this document little weight and there is no material error of law in the judge's decision. The judge concluded that there was no substance to the Appellant's claim.
14. I asked Counsel about the relevance of when the Appellant's father exited Albania to go to Kosovo. She submitted that if he can leave Albania without the system being updated and the system can pick up when the Appellant's father came back to Albania from Kosovo, the fact that there is no mention of him leaving to go to Kosovo means that the British Embassy letter is not accurate.
15. She admitted that there is no statement from the Appellant's uncle and he did not appear for the hearing of the appeal and she admitted that the Democratic Party letter does not say much but she submitted that if the judge accepts the Democratic Party of Albania's letter, this shows that the Appellant's father was politically active. I asked her about the date on the membership card and she said that when the Appellant's uncle went to get the card, as the Appellant's father was not there, it had to be re-issued. It may have to be re-issued every year. She submitted that the membership card shows that his father is politically affiliated.
16. Counsel submitted that the photograph with the details above it on the British Embassy letter does not necessarily show when the Appellant left Albania. This letter could refer to the date when he applied for his passport and that is why there is a record with the Embassy. She submitted that the British Embassy letter without the source evidence is not sufficient to show when the Appellant left Albania.
Decision and Reasons
17. If weight is given to the letter from the British Embassy in Tirana, it is clear that the Appellant's story is untrue. It has been accepted that the documents referred to in that letter have not been produced but not only did the Appellant, according to this letter leave Albania on 13th April 2015, travelling to Kosovo by car, the passport stamps also indicate that he travelled through Macedonia on the same day and through Hungary on 15th April 2015. The fact that the passport stamps support the letter must be relevant and so it seems that the Embassy letter is accurate relating to the Appellant so there is no reason to suppose it would be inaccurate regarding the Appellant's father. The Appellant has admitted that he is part of a family with his parents and three siblings and he has admitted that the photograph attached to the letter is of him. I am satisfied with the personal details which have been supplied by TIMS and find that this is sufficient for the judge to give considerable weight to this letter. It is true that the judge has not specifically stated that the burden of proof relating to this letter is on the Respondent but based on the evidence before the judge, I find that the Respondent has discharged the burden of proof relating to this letter. The letter also refers to the Appellant's father and states that he travelled into Albania from Kosovo in November 2008. There is no record of him having left Albania to go to Kosovo. There is a further entry which states that the Appellant's father was removed to Albania on 9th August 2005 undocumented. There are many possibilities as to why the date of his father's exit from Albania is not mentioned in the letter.
18. The British Embassy letter refers to a scanned copy of the official response from the Albanian Ministry of the Interior and scanned copies of the subject's personal and family certificates provided by the General Directorate of Civil Status Registry. The fact that these are mentioned in the letter is significant. It is unfortunate that they are not with the letter but I see no reason why they would be referred to by the person writing the letter if he had not had sight of them. I find that the fact that there is no date given of the Appellant's father's exit from Albania, is irrelevant. This does not mean the letter is inaccurate. I find that it can be relied on as did the judge. I also note that there is a credibility issue in the decision when paragraphs 35 and 36 are studied. With regard to the Appellant's address in Albania, there seems to be no issue about this. This is dealt with at paragraphs 37 to 39 of the decision.
19. With regard to the evidence provided by the Appellant from the Democratic Party of Albania about his father's membership and his father's membership card, the judge found it significant that the Appellant's uncle who had obtained this evidence did not attend the hearing or even make a statement. The judge was entitled to this finding. The certificate from the DP makes no reference to the length of time the Appellant's father has been a member or if he is an active member and it is not dated. The membership card was only issued on 1st February 2016 after the Appellant made his claim and it was refused. The judge was entitled to give little weight to these two documents based on the evidence before him.
20. I do not find that the judge has used the wrong standard of proof or burden of proof relating to the British Embassy letter. He has explained why he gave weight to this letter and he has explained why he did not give much weight to the two documents from the Democratic Party of Albania.
21. The judge was entitled to come to the decision he did based on what was before him and he has given proper reasons for reaching his decision.
Notice of Decision
22. There is no material error of law in the First-tier Tribunal Judge's decision promulgated on 1st August 2016. The decision dismissing the Appellant's appeal on all grounds must stand.
23. No anonymity direction is made.

Signed Date 4th October 2016

Deputy Upper Tribunal Judge I A M Murray