Tribunal decisions

The decision

UPPER Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00735/2016

THE IMMIGRATION ACTS

Heard at: Field House
Decision and Reasons Promulgated
On: 18 January 2017
On: 15 February 2017

Before
Deputy Upper Tribunal Judge Mailer

Between
Mr Yevhen Sydorov
no anonymity direction made
Appellant
and

secretary of state for the home department
Respondent

Representation
For the Appellant: Mr A Bandegani, counsel (instructed by Duncan Lewis & Co)
For the Respondent: Mr D Clarke, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a national of Ukraine, born on 3 April 1986. His appeal against the decision of the respondent refusing to grant him asylum and a further decision that he is liable to removal from the UK, was dismissed by the First-tier Tribunal panel in a decision promulgated on 23 September 2016.
2. On 5 December 2016 Upper Tribunal Judge Roberts granted the appellant permission to appeal, finding that it was arguable from a reading of the text of paragraph [65] of the decision that the panel reached conclusions about the appellant's credibility separately from its consideration of the evidence of 23 unchallenged court/official documents. Such an approach would be inconsistent with the principles set out in Mibanga v SSHD [2005] EWCA Civ 367. Other grounds seeking permission are all interconnected which stem from a challenge that the panel failed to assess documentary evidence in the round.
The appeal
3. Mr Bandegani submitted that the Tribunal erred in its assessment of the documentary evidence. Its doubts about the appellant's credibility were "not outweighed" by the documentary evidence listed at paragraphs 47-49 of the decision.
4. He contended with reference to Tanveer Ahmed v SSHD [2002] UKIAT 00439 that the Tribunal materially erred in failing to assess the documentary evidence as part of the global assessment rather than merely saying that that is what it did.
5. He submitted that the panel did however not do what it said. This is established by the fact that the Tribunal failed to explain why the body of cogent evidence did not positively affect the credibility assessment of the appellant at all. It was inadequate for the Tribunal to put 23 documents which had not been challenged or said to be unreliable by the respondent, to one side, on the sole basis that in their view the underlying claim is implausible.
6. That constitutes a Mibanga error as the Tribunal did not explain why the documents were not reliable. These reliable documents supported the core of the appellant's case and the Tribunal did not explain why the claim remained totally implausible in spite of the existence of these documents.
7. He contended that the Tribunal's plausibility finding is not only infected by discrete errors of law explained in his grounds of appeal but by the fact that the Tribunal seemed unwilling or unable to confront the fact that this is a documented case of state sanctioned persecution.
8. He submitted that the Tribunal's conclusion that these unchallenged official documents are in effect irrelevant to its assessment of the appellant's credibility, including his risk on return to Ukraine is rendered all the more surprising given its approach to the appellant's wife's evidence. That was found to be "damaged" on the basis that she failed to produce the business card of a lawyer she instructed to help her husband.
9. He submitted that on the one hand the Tribunal's approach with regard to the production of 23 court and other official documents did not positively affect the appellant's claim for protection, but on the other hand, the absence of a lawyer's business card is capable of "damaging the overall credibility of the appellant's wife's evidence."
10. That, Mr Bandegani submitted, '... fell short of instilling even the slightest bit of confidence in the appellant that the Tribunal approached the evidence in a fair and even handed manner'.
11. Nor did the Tribunal determine the claim in context. The Tribunal at [74] referred to evidence that was irrelevant to the appellant's claim (cybercrime) and secondly failed to carry over into its assessment of protection, evidence cited early in the determination at [55-57] including evidence of no effective state protection for those such as the appellant referred to at the hearing but not recorded in the determination.
12. Further, there was other evidence showing that notwithstanding small gains, the country is still at war, is still corrupted at all levels and has an ineffective and partisan judiciary which forms part of a state infrastructure that arbitrarily detains and tortures known or suspected residents. Plausibility should not be considered in a vacuum but in its proper context.
13. He further submitted that in finding that the appellant's decision to seek home protection was not credible at all [64], the Tribunal reached an irrational conclusion. The finding is at odds with the purpose of the Refugee Convention, namely the provision of international surrogate protection. It was irrational for the panel to conclude that the appellant's conduct is incapable of belief because he attempted to secure internal protection from the Ukrainian state and only when that failed, to then seek international protection in the UK. That irrationality is compounded by the finding at [68] where it was held to be "implausible" that the appellant and his wife would not seek internal assistance from human rights organisations in Ukraine, whereas it held at [64] that it is implausible that he would seek internal assistance rather than flee the territory.
14. Mr Clarke relied on the Rule 24 response. The panel reminded itself of the care that has to be taken when assessing credibility. They listed the documents supplied and noted that the determination was a summary of the evidence and that if certain issues are omitted this did not mean that they had not been included in the conclusions drawn. The panel set out the documents before it which were considered at pages 47-49 of the determination.
15. He submitted that paragraph [65] when read "holistically" with the rest of the determination, showed that all the evidence had been taken into account when formulating the view taken on the plausibility/credibility of the appellant's case.
16. The panel did assess the various aspects of the core claim, rejecting the evidence relating to complaints made to the Ukrainian state prosecutors, local police and the office of the President. The panel then turned their attention to the evidence regarding detention, release and bail and considered the vagueness and inconsistencies between the accounts of the appellant his wife relating to the raising of bail monies.
17. In any event, the panel considered at [74] that even if his claim is accepted, in the light of the country guidance the authorities in Ukraine are able to offer protection to the appellant and that such protection is generally available in respect of non-state agents and therefore in the circumstances such as those described by him.
18. In reply, Mr Bandegani submitted that the decision is not saved by [65]. How can the panel have made an assessment regarding plausibility without an assessment of all the evidence, including the documents?
Assessment
19. In the Court of Appeal decision in Mibanga, supra, Mr Justice Wilson, (as he then was) stated at [24] that it was axiomatic that a fact-finder must not reach his or her conclusion before surveying all the evidence relevant thereto. Just as one cannot make a cake with only one ingredient, so also frequently one cannot make a case, in the sense of establishing its truth, otherwise than by combination of a number of pieces of evidence.
20. Whilst an expert cannot usurp the fact finder's function in assessing credibility, what the expert can offer is a factual context in which it may be necessary for the fact finder to survey allegations placed before him; and such context may prove a crucial aid to the decision whether or not to accept the truth of them.
21. What the fact finder does at his peril is to reach a conclusion by reference only to the appellant's evidence and then, if it be negative, to ask whether the conclusion should be shifted by the expert evidence.
22. The court's attention had been drawn at [24] to the decision of the Tribunal in HE (DRC - Credibility and Psychiatric Reports) [2004] UKIAT 00321 in which at paragraph 22 the Tribunal said that where the report is specifically relied on as a factor relevant to credibility, the adjudicator should deal with it as an integral part of the findings on credibility rather than just an add on which does not undermine the conclusions to which it would otherwise come.
23. In Mibanga, Mr Justice Wilson held that the adjudicator in that case fell into error. She addressed the medical evidence only after articulating conclusions that the central allegations made by the appellant were, "wholly not credible".
24. Lord Justice Buxton, in a concurring judgment, in Mibanga, referred at [29] to the position where, as in that case, a complaint was made of the reasoning of the adjudicator in respect of a question of fact (that is to say, credibility), particular care is necessary to ensure that the criticism is as to the fundamental approach of the adjudicator, and does not merely reflect a feeling on the part of the appellate Tribunal that it might itself have taken a different view of the matter from that appealed to the adjudicator.
25. At [30] Lord Justice Buxton found that the adjudicator's failure was that she artificially separated the medical evidence from the rest of the evidence and reached conclusions as to the credibility without reference to that medical evidence, and then, no doubt inevitably on that premise, found that the medical evidence was of no assistance to her. That was a structural failing, not just an error of appreciation, and demonstrated that the adjudicator's method of approaching the evidence diverted from the procedure advised at paragraph 22 of HE.
26. The panel in the current appellant's case has given a detailed and very extensive decision.
27. The panel stated that they have considered the documents in the appellant's bundle, which they set out at [11]. It was noted that the appellant's claim is set out in his statements, interviews and oral evidence. It set out the evidence from his screening and asylum interview in some detail. It set out his comments on the respondent's refusal letter at [28].
28. At [47] the panel referred to the documents relied on by the appellant from pages 172-206. This included a "notice of suspicion; a letter from the Deputy General Prosecutor of Ukraine to the National Security Service asking for a review of the application of the appellant's wife; a letter to the appellant's wife from the Deputy General Prosecutor; a notice of suspicion dated February 2015 against the appellant dealing with similar matters raised in the notice of suspicion dated 28 July 2015. There was a letter to the appellant from the National Security Service acknowledging his complaint and indicating that he would be informed of the results of an investigation into it. There was a summons dated 23 February 2015 addressed to Yuriy Fedorev Ych Sydorov and a summons from the same day addressed to Natalia Vasyivina Sydorova; a letter from the public prosecutor's office to the appellant's wife dated 30 April 2015; a ruling from the Zahovtnevy Regional Court dated 28 July 2015 releasing the appellant on bail; a ruling from the same court on 2 April 2015 that the appellant should be kept in custody from his arrest on 31 March 2015 until 30 May 2015. There are also extensions to his custody made by the Court until 29 June 2015.
29. The panel had regard to the statement of the appellant's father which it set out in some detail at [48(i)]; a certificate of employment of the appellant from the National Bank of Ukraine; a summons to his wife and a ruling of the Court on 25 September 2015 regarding payment of bail.
30. The panel also had regard to various additional documents at [49] submitted on 18 August 2016 and to country information and guidance reports on Ukraine dated May 2016, August 2016 and August 2016.
31. The panel stated that against the background referred to, they made their findings. They stated at the outset at [58] that they had looked at the evidence in the round and in the light of their analysis they made "the following findings" which they then set out. They did not find the appellant to be a credible witness for reasons which they then set out.
32. There followed a number of paragraphs in which regard was had to the appellant's highly detailed and complex account in relation to his claim. They found inconsistencies within it which went to the very heart of the claim, and which were not minor or peripheral.
33. They had regard to his two detailed witness statements which were inconsistent with his screening and asylum interviews in various aspects which are set out at [61]. It was noted that there was no mention of financial gain, incentive or blackmail when the appellant later explained the situation in his witness statements. There he referred to various threats made by his "handler" if he refused to attack the bank. They found that the nature and substance of those threats were not the same in each of those accounts.
34. At [62] the panel stated that they "shared" the respondent's concerns that it is inherently implausible that the appellant would have refused to carry out the order to disable the computer network of the bank which came from the SBU, and would then be charged and prosecuted for offences appertaining to "the same" and this would place the matter in the public domain. By charging him and placing him on trial, those responsible risk their involvement becoming known.
35. There were also various other findings relating to inconsistencies set out at [63-64]. They found that it was not credible in the light of the attack upon himself and his wife by two armed men on 5 February 2015 at his house that he would have chosen to relocate internally at the time rather than to flee Ukraine. His explanation that he did not know that the SBU was capable of fabricating a criminal case against an innocent person and that it was his intention to make a complaint to the prosecutor's office was found to be an implausible explanation for reasons set out at [64].
36. The Tribunal then stated at [65] that it was "a major part of the appellant's claim that he, his wife and his father made various complaints to the Ukrainian state prosecutors, local police and the office of the President that none of these bodies or persons showed an interest in his case. He produced several copy documents which evidence some of the complaints, particularly to the Ukrainian prosecutors.
37. The panel stated that they have viewed those documents "in the round" when assessing all the evidence in this appeal. Despite their production, the panel found that they did not outweigh their concerns about the general plausibility of the appellant's account. They shared the respondent's concerns that it is not credible that the appellant was raising allegations about rogue officials who were plotting to destabilise Ukraine by interfering with the day to day processes of the National Bank and therefore who may reasonably have been acting in Russia's interests at the time when Ukraine was in conflict with Russia and that none of the bodies concerned responded in any significant way to his complaints. They found it highly implausible to suggest that an official from the President's office would agree to see the appellant, listen to his account and then be so uninterested, given its very serious nature.
38. Can it be said that the Tribunal artificially separated documents evidencing complaints that the appellant and his wife and father made to the Ukrainian state prosecutors, local police and the office of the President? Was this indeed a "structural failing"? Did the panel raise parts of the evidence adduced on behalf of the appellant "bit by bit" and address the documentary evidence referred to at [65] only after they had conclusively rejected the central features of the appellant's case as lacking credibility?
39. The panel commenced their Findings at [58] by stating that it was against the earlier background that they made their findings. They stated that they had looked at the evidence in the round. That was again repeated at [65] with regard to the consideration of the complaints made to the Ukrainian state prosecutors, local police and office of the President as set out in documents evidencing some of these complaints.
40. Although the panel has stated that it had assessed these documents in the round when assessing the evidence in the appeal, it has not been shown or explained how they assessed the documentary evidence.
41. In that respect, I accept the submission that the Tribunal failed to explain why the body of potentially cogent evidence did not potentially positively affect the credibility assessment of the appellant at all.
42. Mr Bandegani referred to the fact that there were 23 official documents which had not been challenged and which had not been said to be unreliable. It was therefore not explained why such documents were, in the circumstances, put to one side, on the sole basis that in their view the underlying claim was implausible.
43. That is to be contrasted with the panel's approach to the absence of a lawyer's business card which was found to be capable of damaging the overall credibility of the appellant's wife's evidence.
44. I find that the failure to analyse and assess whether these 23 court and other official documents could positively affect the credibility assessment of the appellant constitutes a structural omission, resulting in an error on a point of law.
45. I accordingly set aside the decision. The parties agreed that in those circumstances, the appeal should be remitted to the First-tier Tribunal for a fresh decision to be made.
Notice of Decision
The decision of the First-tier Tribunal involved the making of an error on a point of law and is set aside. The appeal is remitted to Hatton Cross for a fresh decision to be made before another Judge/Judges.
No anonymity direction is made.

Signed Date 12 February 2017
Deputy Upper Tribunal Judge C R Mailer