Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00754/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 18 October 2016
On 26 October 2016

Before

THE HONOURABLE MR JUSTICE COLLINS
DEPUTY UPPER TRIBUNAL JUDGE SAINI

Between

N E
(anonymity direction MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mrs A Mughal of Counsel instructed by Montague Solicitors
For the Respondent: Mr T Melvin, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal against the decision of First-tier Judge Andonian in a decision promulgated on 28 July 2016 whereby he dismissed the appellant's appeal against the decision of the Secretary of State that she was not entitled to asylum or humanitarian protection she having arrived in this country in August 2015 and asserted that as a Kurd in Turkey she had been persecuted by the authorities.

2. She was born on 15 June 1999 so that when she arrived in this country she was 16 years old and at the date of the hearing was 17 and thus had to be treated as a minor. She had travelled on her own from Turkey to North Cyprus and then on to this country with, it seems, the assistance of an agent and she claimed asylum on her arrival at the airport. Unfortunately, she told a pack of lies as to the basis of her claim for asylum. She then asserted that she feared that she would be persecuted by her family and that she was also afraid of ISIS. It is not necessary for us to go into the basis of that claim because, as we say, it was accepted that that was untrue. In due course she made what she said was a true claim for asylum and that was based upon the fact, she said, that her family, particularly her father, was active in the Kurdish political parties, the two parties that is the BDP and the HDP both of which are lawful, but it was alleged by the authorities that he was not only sympathetic to but involved with the PKK which is not lawful and which has been responsible in Turkey for a degree of terrorist activity or what is alleged to be terrorist activity.

3. She was asked about her knowledge of the two parties and was found not to have the sort of knowledge that would be expected from someone who was herself involved with the parties and whose family was active. She was unable to name her local MPs, to have any knowledge of whether the BDP had participated in elections and did not demonstrate basic knowledge of the party she allegedly supported and had distributed leaflets on behalf of that party and this led the Secretary of State to take the view that it was not accepted that she was indeed politically active. It was her political activity which she said had led to her arrest. There was a certain amount of confusion in the sense that she was not entirely saying the same thing on occasions because it appeared that she was saying at one stage that she had been arrested once and at another that it had been twice and that on each occasion she had been physically assaulted by the police it being alleged against her that she had been active on behalf of the PKK. It follows clearly that her claim was one which, on the face of it, faced an uphill struggle because of her initial lies and of the discrepancies and difficulties she had in dealing with her knowledge of the two parties with which she said that she had been involved.

4. The main basis though upon which leave to appeal was granted was because it was alleged that the First-tier Judge had fallen asleep during the course of the hearing and it had been necessary for the representative to take steps to wake him up and it was said that in the circumstances he had not given a proper consideration to her case and it was in addition said that the reasoning that he relied on in dismissing the appeal was unsatisfactory. Unfortunately, we are left insofar as that allegation is concerned, in a position where we are unable to decide whether he did fall asleep or if he did it meant that he did not pay proper attention to the material that was put before him and the submissions made on behalf of the appellant. Mrs Mughal who represented the appellant before the judge has asserted that he indeed did fall asleep and it is said in her grounds of appeal that the conduct of the judge gave grave concern which was noted by the advocate appearing for the appellant as well as a representative for the respondent. However, in the Home Office response of 15 September 2016, it is noted that the Presenting Officer's hearing minute recorded that "Mrs Mughal tried to ask me whether I had noticed the judge had fallen asleep during her submissions. The Immigration Judge was not asleep during submissions, instead he was listening with so much interest that we [sic] was not writing everything straight away". As we say there is thus an issue as to whether he did fall asleep and what was the effect if he did. We suggested to Mrs Mughal at the outset of the hearing before us that in the circumstances it was not necessary for us, or indeed desirable, to form any concluded view in relation to the judge's falling asleep. What mattered was whether the reasons that he gave for dismissing the appeal could properly be said to have dealt with the submissions that were made before him and the evidence given before him.

5. It was said in the grounds and indeed the judge granting permission said that there was a lack of distinction in the reasoning with what appears to have been the respondent's case and what amounts to the judge's own findings and there was an arguable lack of cogent reasons for dismissing it. We pressed Mrs Mughal to indicate precisely what she was relying on in this regard. She submitted and indeed that was part of the appeal that the judge had not properly taken account of the fact that the appellant was a minor. He certainly refers to that on a number of occasions in the course of his judgment and he makes the point which in our judgment is a perfectly valid point that albeit she was under 18 the fact is that she had travelled on her own from Turkey to this country, had made a claim for asylum, and had put it on a false basis because she said she thought that if she had told the truth she would not have achieved what she wanted. That indicates a degree of maturity and what is necessary when taking account of the fact that someone is under 18 will depend on all the circumstances of the case. The reality is that it was perfectly proper to find on the basis of the evidence and to accept the respondent's conclusion that she had not been active politically and it followed that she had not been arrested and dealt with as she alleged and the fact that she told lies initially of course is a matter that can be properly taken into account against her. The fact that she is a Kurd and if it were the case that she was politically active in the proper way does not of itself give rise to a conclusion that she might be persecuted and so entitled to asylum.

6. It seems to us that the decision of the judge accepting as we say the conclusion reached by the respondent was one which cannot be said in any way to have been wrong and in those circumstances we dismiss this appeal. We would only add that it seems that the appellant has now a newborn child. It is not for us to go into any matters that may arise from that but it would seem to follow that it may be that she could have an Article 8 claim. That is something which she must deal with as soon as possible.

Notice of Decision

The appeal is dismissed on asylum grounds/humanitarian protection grounds/human rights grounds.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

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 their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date: 25 October 2016

Mr Justice Collins

TO THE RESPONDENT
FEE AWARD

I have dismissed the appeal and therefore there can be no fee award.

Signed Date: 25 October 2016

Mr Justice Collins