Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number:
PA/00743/2015

THE IMMIGRATION ACTS

Heard at: Manchester
Decision and Reasons Promulgated
On: 13th December 2016
On: 04th January 2017

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

LN
(anonymity direction made)
Appellant

And

Secretary of State for the Home Department
Respondent

For the Appellant: Mr Schwenk, Counsel instructed by Broudie Jackson and Canter
For the Respondent: Mr Bates, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a male national of Cameroon who is now aged 41. He appeals with permission the decision of the First-tier Tribunal (Judge Siddiqi) to dismiss his appeal on protection grounds.

Anonymity Order

2. Although the First-tier Tribunal did not consider it necessary to make an order protecting the Appellant's identity, this is a published decision, and this case concerns a claim for international protection which includes claims of sexual violence. Having had regard to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 and the Presidential Guidance Note No 1 of 2013: Anonymity Orders I therefore consider it appropriate to make an order in the following terms:

"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 to, amongst others, both the Appellant and the Respondent. Failure to comply with this direction could lead to contempt of court proceedings"

Background and Matters in Issue

3. The Appellant claimed asylum shortly after his arrival in the United Kingdom in 2015. He told UKVI officials that he was gay, and that he had suffered persecution in Cameroon as a result. He had twice been arrested and detained; during one detention he had been gang raped by other prisoners. His sexual orientation was the core of his claim, but here was an additional matter for consideration. The Appellant entered the country using a valid business visitor's visa which he had been given by the agents who organised his departure from Cameroon. He claimed that after his arrival he had been put to work by these agents who had told him that he owed them the debt of his passage. The Appellant was therefore treated as a potential victim of trafficking and a referral was made to the Competent Authority.

4. In her refusal letter dated 4th August 2015 the Secretary of State for the Home Department rejected the claim in its entirety. She found there to be a number of discrepancies in the account. For instance, central to the Appellant's account was his claim that he had worked as a DJ in Cameroon. This had enabled him to meet other men with whom to have relationships. The Secretary of State noted that during the visa application process the Appellant had provided credible evidence that he in fact worked for the Ministry of Economics, Planning and Regional Development as a Project Manager. He had also given inconsistent evidence about his relationships with other family members, including his wife. It was not accepted that he was gay, or that he had suffered any persecution in Cameroon. As to the trafficking element of the claim, the Secretary of State adopted the conclusions of the Competent Authority that the Appellant was not a victim of trafficking. The Competent Authority decision was based on what were perceived to be fundamental discrepancies in the evidence: the Appellant claimed that he was being forced to work in a container park in Manchester, whereas on the Respondent's evidence officers had apprehended him dressed in smart clothing in a WH Smiths in Birmingham.

5. When the matter came before the First-tier Tribunal the parties were in agreement that credibility was the central issue in respect of both limbs of the claim. The burden of proof lay on the Appellant and the standard was the relatively low one of "real risk".

6. The Tribunal did not find the burden to be discharged, even to that low standard. The determination gives several reasons for disbelieving the entire account and the appeal was dismissed. The Appellant now appeals on the following grounds:

i) Failure to make findings

The Appellant had given detailed evidence about his sexual relationships in Cameroon and had named four men in particular. Although the First-tier Tribunal rejects the evidence in respect of one of these men, no findings are made about the other three. In focusing at it did on the account of arrest and ill-treatment, the Tribunal failed to make a clear finding on the central matter in issue: was the Appellant gay?

ii) Failure to take material matters into account, or alternatively to give appropriate weight to such matters.

a) In making its findings the Tribunal placed significant weight on discrepancies in the evidence arising from the 'screening' and substantive asylum interview records produced by the Respondent. From the outset the Appellant had challenged the accuracy of these transcripts. It was pointed out on his behalf that neither interview had been recorded, despite a specific request from his solicitors to that effect (due to lack of funding to pay for a representative to attend). Within a week of the substantive interview transcript being made available the Appellant had raised a number of objections and sought to correct the record by way of a lengthy and detailed letter from his solicitor. Whilst it is not contended that the Tribunal was obliged to exclude the interview notes altogether, it is submitted that it failed to consider, or give due weight to, the fact that this evidence had been produced without the legal safeguard of recording, and that it had been contested from the outset.

b) The Tribunal finds that the Appellant's ability to leave Cameroon without any difficulty undermines his claim that he was on temporary release from prison at the time. It is submitted that the Tribunal has here failed to take into account the evidence that the Appellant's departure was organised by agents.

c) It is further submitted that in its assessment of the Appellant's evidence the Tribunal failed to consider or give due weight to the possibility that his ability to give clear evidence was clouded by his experiences. If he had indeed been raped, imprisoned and beaten, it was possible (indeed medical opinion would consider it likely) that this would have an impact on his ability to give an entirely consistent account.

7. In his oral submissions Mr Schwenk expanded on ground (ii)(b) above to submit that there was in fact no evidential basis for the Judge to conclude that Cameroon border officials would have the capability to detect that someone boarding a flight was on temporary release from detention. He further sought to expand his written grounds by challenging the overall findings on trafficking. He submitted that the errors in approach made by the First-tier Tribunal had also been made by the Respondent and Competent Authority, all of these decision makers placing undue weight on evidential discrepancies without considering the procedural concerns about the interview record, or the possibility that the Appellant was traumatised.

My Findings

The Interviews

8. I deal with this ground first since it assumed a central role in Mr Schwenk's submissions. He accepts, in light of the decision of then President Mr Justice Blake in MB (admissible evidence, interview records) [2012] UKUT 00119 (IAC) that he could not argue that the interview record should have been excluded. He submitted however that where there is no legal representative, recording provides an important procedural safeguard against the possibility of poor interpreting or transcription, or against the Appellant becoming confused. That much was recognised by the Court of Appeal in R (Dirshe) v Secretary of State for the Home Department [2005] EWCA Civ 421. In Dirshe the Court of Appeal departed from earlier authority to hold that it was unlawful for the Secretary of State to refuse to record an interview where there was no funding for a representative to be present, for those very reasons. In this case the Tribunal had been placed on notice that this had not happened, despite a specific request from the solicitors. The Appellant had subsequently identified a number of defects in the interview records, and the Tribunal should therefore have approached the records with caution, carefully weighing any alleged discrepancy arising against the Appellant's explanation for it. The error, it is submitted, is that in making its findings the Tribunal failed to do this, and did not apparently take into account the letter from the solicitor, sent on the 23rd June 2015 (only six days after the asylum interview) and listing in some detail the problems with it:

The Appellant disputes the assertion that he did not want the asylum interview recorded. He says that he told the officer that it was up to him, and it was the officer who made the decision not to record
The interpreter at the asylum interview appeared to be "half asleep" at times and it is not clear how much of the Appellant's evidence was communicated to the officer
The interpreter had to correct the officer's record on a number of occasions
The records contain several spelling mistakes (which are listed)
The records contain incorrect dates (which are listed)
The records contain inaccuracies (which are listed)

9. It is evident from the level of detail in this letter that the Appellant and his representative had gone through the records very carefully. I am satisfied that this letter contained important information and it was incumbent on the Tribunal, as a matter of fairness, to have regard to it. The question is therefore whether the representations of the 23rd June were properly weighed in the balance.

10. At paragraph 44 the determination identified "one of the most significant discrepancies" as arising from the dates that the Appellant gave for his detention. In his screening interview he had said that he had been imprisoned on the 9th September 2014 and again on the 11th November 2015; at substantive interview he had said that the dates were the 6th October 2014 and the 8th November 2014. This is a matter raised in the representations of the 23rd June. There is it said that the dates given at substantive interview were the correct ones and that the dates recorded at the screening interview were incorrect. The Appellant's witness statement reflects that position. Further, the notes of the substantive interview record the Appellant as having said that police had visited his workplace at the end of February, but this was amended in the 23rd June letter so that the visit took place at the end of March.

11. It is quite clear in drawing the negative inferences that it did from these matters the Tribunal did not overlook the solicitors' representations. The letter is acknowledged by the First-tier Tribunal at paragraphs 11, 21, 25 and 52 of the determination. The fact that the discrepancies are attributed to errors by the interpreter and interviewing officer is recorded at paragraph 44 itself. It is plain that the explanation for those discrepancies was therefore weighed in the balance. What the Tribunal does is reject the explanation because of other inconsistencies, arising inter alia from the oral evidence: at the hearing the Appellant deviated from his witness statement about when he was asked to attend at a police station, introduced a further police visit that had not been mentioned previously and was "vague" when asked to clarify. The conclusion is reached at paragraph 45: "I am not persuaded that the many discrepancies that occurred during the screening and asylum interview are due to errors on the part of the interviewing officer and interpreter, as the Appellant has continued to give an inconsistent account?I find that the Appellant has repeatedly failed to provide a consistent account of when he was detained and when his workplace was searched by the authorities in Cameroon". Similar findings are reached at paragraph 52 where the Tribunal notes the disparity in the evidence, across the interviews, oral evidence and witness statements, in respect of the Appellant's relationships with other family members. I am unable to accept that the Tribunal failed to consider the possibility that the discrepancies arose from interpreter/interviewing error. Judge Siddiqi obviously did, but for the reasons that she gives, rejects this as an explanation.

Trauma and Credibility

12. The Appellant's representative had included in the bundle of documents the Joint Presidential Guidance Note No 2 of 2010 (child, vulnerable adult and sensitive appellant guidance), an article about how survivors of sexual violence will very commonly find it difficult to disclose their experiences (particularly in a non-therapeutic environment such as a Home Office interview) and an academic review of the literature on how PTSD affects the memory. Submissions were made to the First-tier Tribunal to the effect that the Appellant's ability to give a consistent and coherent account may have been influenced by the trauma that he had suffered, in particular having been raped in prison in Cameroon. Before me it is submitted that the First-tier Tribunal failed to take these submissions into account.

13. This argument is unsustainable. First of all, it is recorded at paragraph 17 of the determination that the submissions made as to the Presidential Guidance and the reports mentioned above were considered. Secondly, and more importantly, there was no medical evidence from a mental health professional to support the assertion that the Appellant was traumatised, or suffering from any kind of mental health complaint such that his ability to tell his story might be compromised. In his submissions Mr Bates asked me to consider the situation had the First-tier Tribunal made the alternative finding asked of it by Mr Schwenk. He was in effect asking the Tribunal to excuse a wholly inconsistent account on the basis that the Appellant might have been raped, might therefore be traumatised and that this might have affected his memory. Mr Bates submitted, with good reason, that to accept this approach as rational would be to reduce the already low standard of proof to a negligible level. Had the account been accepted on that basis, I have little doubt that it would be a Home Office appeal now before me.

14. Had there been a psychological assessment of the Appellant supporting the contention that he has memory problems because of trauma, this ground of appeal may have had merit. In the absence of such evidence it has none.

Failure to Make Findings

15. At paragraph 56 of the determination the First-tier Tribunal rejects, with reasons, the evidence that the Appellant was in a relationship with a man named Joseph. At paragraph 43 the Tribunal rejects, with reasons, the evidence that the Appellant worked as a DJ and so was able to easily meet men. At paragraphs 44-51 the Tribunal rejects, with reasons, the evidence that the Appellant came to the adverse attention of the authorities in Cameroon. At paragraph 52 the Tribunal rejects, with reasons, the conflicting evidence about the breakdown of the Appellant's relationships with his sisters as a result of his sexuality, concluding "I find the lack of consistency in his account undermines the credibility of his account to be gay". At paragraph 55 the Tribunal specifically directs itself to consider whether the Appellant might be gay, notwithstanding the rejection of his historical account, but having considered all of the evidence in the round, concludes [at 61] that he has not discharged the burden of proof. Having had regard to all of this careful and detailed analysis I conclude that it cannot sensibly be suggested that the Tribunal has failed to make findings on whether the Appellant is in fact gay.

16. The grounds complain that there was a failure to make findings in respect of the Appellant's claims to have had relationships with three men other than Joseph. In granting permission First-tier Tribunal Judge Landes did not consider this ground to be arguable, and Mr Schwenk did not pursue the matter before me. For the sake of completeness I agree with Judge Landes that the absence of findings on these three other relationships cannot be material. As Judge Siddiqi herself makes clear, Joseph was the central figure in the Appellant's account, and the only person in respect of whom there was any corroborative evidence (a photograph). The evidence about the other men came only from the Appellant himself, whose evidence on all other matters had been comprehensively disbelieved.

Prison and Departure

17. There may be some merit in Mr Schwenk's submission that there was a lack of evidence to justify the Tribunal's conclusion that a man who had been released from detention in the manner described by the Appellant would have any difficulty leaving Cameroon. I agree that in making that adverse finding the Tribunal did not have regard to the evidence that the exit was arranged by agents, a matter which appears to have been accepted at paragraph 42. I am not however satisfied that this error could be said to be material. The finding as to the Appellant's exit from Cameroon is one negative finding amongst many, and there can be no doubt at all that the conclusion would have been the same even if paragraph 47 were to be removed from the determination.

Trafficking

18. The Competent Authority did not accept that the Appellant had been trafficked. I am told that this was a conclusion reached in part because of the inconsistencies in the Appellant's evidence, and in part because of the Respondent's evidence as to the circumstances of the Appellant's discovery by immigration officials - in a newsagents in Birmingham as opposed to a container park in Manchester. It is submitted that applying AS (Afghanistan) v Secretary of State for the Home Department [2013] EWCA Civ 1469 the Tribunal should have considered for itself whether the decision of the Competent Authority was rational, and gone on to make its own findings about whether the Appellant was a victim of trafficking. I reject this ground. The skeleton argument before the First-tier Tribunal makes no mention at all of the trafficking issue. Although a copy of AS (Afghanistan) was included in the bundle it is not at all clear that the Tribunal was asked to make such findings. Secondly it is perfectly clear what the conclusions would have been had such an analysis been conducted: the Tribunal accepted and adopted the analysis of the Competent Authority. Thirdly it is apparent from the reasoning above that the Appellant would have found it very difficult, if not impossible, to demonstrate that the decision of the Competent Authority was irrational. Mr Schwenk submitted that the report was flawed for the same reasons as the First-tier Tribunal's determination. The circularity of that argument is evident: the Tribunal was entitled to reach the conclusions that it did for the reasons that it gives, and so too was the Competent Authority.

Decisions

19. The decision of the First-tier Tribunal does not contain an error of law such that it should be set aside.

20. There is a direction for anonymity.

Upper Tribunal Judge Bruce
20th December 2016