Tribunal decisions

The decision

IAC-AH-DP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00706/2015

THE IMMIGRATION ACTS

Heard at Royal Courts of Justice, Belfast
Decision & Reasons Promulgated
On 8 November 2016
On 8 December 2016

Before

UPPER TRIBUNAL JUDGE RINTOUL

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Abdella [A]
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr S Whitwell, Presenting Officer
For the Respondent: Mr C Dougan, Solicitor

DECISION AND REASONS
1. The respondent appeals with permission against the decision of First-tier Tribunal Judge S T Fox promulgated on 20 June 2016 allowing the appeal against the respondent's decision made on 21 August 2015 to refuse his protection claim.
2. The respondent's case is that he is a citizen of Sudan whose father was a member of the Fong (alternatively Fung) tribe and his mother from the Tatliba tribe. He had also been a member of the Sudan Liberation Movement ("SLM"). His case is, put simply, that the Fong/Funj (the spelling is inconsistent) are a black African non-Arab tribe who face the same level of ill-treatment at the hands of the Sudanese State as non-Arab tribes from Darfur. On that basis he asserts that he is at risk of persecution on return to Sudan.
3. The Secretary of State did not in her refusal letter accept the appellant's ethnicity as a non-Arab Darfurian [33] to [36] noting [34] that he had been inconsistent as to his tribal origin stating only in his asylum interview [Q50] that he is Fong. The respondent did not accept either the appellant's account of problems with the government because of his links with the SLM and drew a considerable number of inferences adverse to his credibility including [46] and [47] his failure to claim asylum on arrival in the United Kingdom in 2010, having noted already [15] that he had claimed and been refused asylum in Ireland.
4. The judge heard evidence from the respondent who also in turn relied on a report by Mr Peter Verney, dated 2 May 2016.
5. The core of the judge's findings is set out at paragraphs 21 and 22
21. However, there is tacit consent of the Respondent as to the other and first averment made by the Appellant as to his claimed ethnicity. He derives the same from his father. He is from the Fong/Funj tribe. The back information confirms this tribe suffers persecution and is an African tribe. Mr Verney lends weight to that consideration. As such he would be at risk upon return to Sudan. I am therefore bound to follow the country guidance cases in regard to this issue. The Respondent's reasons for refusal make no reference to the Appellant's father's ethnicity or how the Appellant may derive his ethnicity from that of his father. That the Appellant's credibility has been damaged it is only in relation to those aspects of this story that I have referred to above. I can find no reason to doubt the ethnicity of his father or that he can derive his own ethnicity from that of his father.
22. On the evidence before me today I am satisfied the Appellant has provided a credible basis for challenging the assertions, analyses and conclusions of the Respondent's refusal letter regarding his claimed ethnicity. On the evidence before me today, I am satisfied those assertions, analyses and conclusions are not valid and tenable. I am satisfied that the Appellant is a member of the Fong/fund tribe. He is at risk if returned to Sudan.
6. The Secretary of State sought permission to appeal on the ground that:
(i) that there was no evidence that the Fong/Funj had any links to Darfur; and
(ii) that it might be arguable that the appellant is at risk as a result of his Fong/Fung ethnicity that had not been part of his claim; and,
(iii) was not open to the judge to find that the country guidance bound him to allow the appeal, AA (Non-Arab Darfuris - relocation) Sudan CG [2009] UKIAT 00056 and MM (Darfuris) Sudan CG [2015] UKUT 00010 being specific to the risk to ethnicities who have links to Darfur such that they will be perceived as Darfurian regardless of where they were born.
7. On 7 July 2016 First-tier Tribunal Judge Hodgkinson granted permission on all grounds. The respondent applied by way of a notice pursuant to Rule 24 stating:
(i) that the judge had directed himself properly and found the respondent to be a member of the Fong/Fung tribe and concluded, on the basis of the expert report, that the tribe suffers persecution and as a consequence would be at risk on return to Sudan;
(ii) that the Upper Tribunal case AA/07870/2014 confirms that the Fong/Fung is a persecuted African tribe and members of that tribe are at risk on return to Sudan;
(iii) that the expert evidence was that the Fong/Fung from the Blue Nile is a part of a group of tribes described as "black African, they existed across southern-central Sudan and that these tribes' treatment is very similar to that of non-Arab Darfuris, the actions of the regime towards them being virtually indistinguishable.
8. Mr Whitwell submitted, relying on the grounds, that the judge appeared to have misapplied the relevant country guidance and appeared to be saying that the Fong/Fung were Darfurian. There was, however, no evidence that they were part of those tribes, indeed the evidence indicating that they are from the Blue Nile area, not Darfur. This, he submitted was evident also from Mr Verney's report at [87]. He submitted that the Secretary of State had not accepted that the appellant is of the Fong/Fung although he did not demur from my observation that there was no direct challenge to that findings of fact in the grounds. He submitted that the judge had erred significantly in stating that he was bound by the country guidance cases when that was not so albeit that, as the grounds accept, it was arguable that the Fong/Fung were faced the same ill-treatment.
9. Mr Dougan submitted it had been open to the judge to conclude that the respondent is of Fong/Fung ethnicity and on the basis of the evidence set out in Mr Verney's report, which was not challenged, he was at risk of the same type of ill-treatment as non-Arab Darfuris and on that basis faced persecution. He submitted that properly construed, what the judge had said at [21] involved the finding of risk of persecution before he then referred to the binding nature of MM and AA.
Discussion
10. I am satisfied that, although the respondent's ethnicity was an issue in the refusal letter, the Secretary of State did not challenge the judge's finding that he is of Fong/Fung ethnicity. There is, for example, no submission that the judge failed to resolve evidential conflicts in that respect or had reached an impermissible conclusion.
11. There is no submission from the Secretary of State that the report from Mr Verney is unreliable or that weight should not have been attached thereto. Mr Verney is, I note, an acknowledged expert whose evidence underpins a number of country guidance cases including MM.
12. There are a number of passages in Mr Verney's report which require further consideration. These are for the greater part under the heading "Family Background - Risk to Non-Arabs". He notes that the respondent is:
...
from the geographical belt across southern-central Sudan that is characterised as "black African", that is, containing the non-Arab tribes such as the Fung or the Blue Nile, the Nuba of the South Kordofan and the Fur, Masalit and other non-Arabs of Darfur.
...
89. All of these areas are being attacked by government forces and from the air.
90. There was a consistent thread of Sudan government attacked on these people up to the present day.
91. This is coupled with arrests and shootings of people from this background in the major towns.
92. There have been government assisted land seizures all across this belt from Darfur eastwards through South Kordofan and Blue Nile which are all war zones and whose non-Arab populations have been targeted. Again, persecution extends to people from these areas who live in the capital and major conurbations.
...
95. I have dealt with the Berta, Funj, Ingessana and other asylum applications from Blue Nile tribes. These have in the end been successful.
96. They are black Africans whose treatment very similar to that of Darfuri non-Arabs. The actions of the regime towards them are virtually indistinguishable.
97. For these reasons many people from these regions have joined the opposition to the Islamist regime.
13. Mr Verney went on to state [111] that the Sudanese authorities would know the respondent's ethnic identity already and in any event could simply demand to know what it is and he would be unable to lie [112] and from that basis he would face persecution.
14. Once it was accepted that the respondent is a member of the Fong/Fung tribe, the judge was entitled in light of the unchallenged evidence of Mr Verney to conclude that the appellant was at risk in the same way as non-Arab Darfuris. That is not a finding that the Fung are non-Arab Darfuris but merely a finding that they are treated in the same way. I consider that on that basis, the finding that the respondent was at risk of persecution was open to the judge and that he gave adequate, if brief, reasons for doing so referring himself directly to the report of Mr Verney which had been available to the Secretary of State. She must in the circumstances have understood why the judge reached the conclusion that the respondent was at risk of persecution in light of the passages cited above.
15. It is, I accept, a little unclear what the judge referred to in stating "I am therefore bound to follow the country guidance cases in regard to this issue". This could be a reference to what is likely to happen on return to Sudan and in the context of the evidence this would be permissible. The decision, whilst it could have been better phrased, is that the judge considered, having had regard to the evidence effectively unchallenged evidence of Mr Verney, that members of the Fong/Fung would be treated on return to Sudan in a way of virtually indistinguishable from that of non-Arab Darfuris, and so, for similar reasons they too would be at risk of persecution. It is not, I consider, properly construed, a finding that the Fong/Fung are non-Arab Darfuris, merely that they are treated by the Sudanese authorities in the same way.
16. Accordingly, for these reasons, I am not satisfied that the judge reached conclusions which were not open to him or that his finding that the respondent is at risk of persecution on return to Sudan is unsustainable. I therefore uphold the decision of the First-tier Tribunal in respect of the findings on asylum and Articles 2 and 3 of Human Rights Convention.
17. I note in passing that the judge did dismiss the appeal under Article 8 of the Human Rights Convention. The issue is not whether there was an Article 8 violation but whether there was a potential violation of the Human Rights Convention in itself. The fact that he found that there would be an Article 3 breach means it was wholly unnecessary for him to consider Article 8 and he should not have gone on to do so.

SUMMARY OF CONCLUSIONS

1. The decision of the First-tier Tribunal did not involve the making of an error of law and I uphold it.

Signed Date: 8 December 2016

Upper Tribunal Judge Rintoul