Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01112/2016

THE IMMIGRATION ACTS

Heard at Newport (Columbus House)
Decision & Reasons Promulgated
On 27 February 2017
On 10 March 2017

Before

UPPER TRIBUNAL JUDGE GRUBB
DEPUTY UPPER TRIBUNAL JUDGE DAVIDGE

Between

f d
(ANONYMITY DIRECTION made)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr S Vokes instructed by Migrant Legal Project
For the Respondent: Mr M Diwnycz, Senior Home Office Presenting Officer

DECISION AND REASONS
1. Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) we make an anonymity order. Unless the Upper Tribunal or court directs otherwise, no report of these proceedings shall directly or indirectly identify the appellant. This direction applies to both the appellant and to the respondent and a failure to comply with this direction could lead to contempt of court proceedings.
Introduction
2. The appellant is a citizen of Sudan who was born on 1 January 1996. He arrived in the United Kingdom on 10 October 2015 and the next day he claimed asylum. The basis of his application was that he was from a non-Arab Darfuri tribe, the Tama. He claimed that he had been arrested and detained for fourteen days when he had been beaten. He claimed to be at risk on return.
3. On 20 January 2016, the Secretary of State refused the appellant’s claim for international protection, humanitarian protection and on the basis of Art 8 of the ECHR.
The Appeal to the First-tier Tribunal
4. The appellant appealed to the First-tier Tribunal. Judge Suffield-Thompson dismissed the appellant’s appeal on all grounds. She found the appellant not to be a truthful witness and did not accept that he was a member of the Tama Tribe as he claimed or that he had been detained and ill-treated. Consequently, he had not established that he would be at risk on return.
The Appeal to the Upper Tribunal
5. The appellant sought permission to appeal to the Upper Tribunal. Permission was granted by the First-tier Tribunal (Judge Cruthers) on 14 September 2016.
6. On 6 October 2016, the Secretary of State filed a rule 24 response in which she sought to uphold the judge’s adverse credibility finding and decision to dismiss the appellant’s appeal.
The Submissions
7. Central to the appellant’s claim was that he was a member of the Tama Tribe (a non-Arab tribe) from Sudan which put him at risk on return. A significant feature of that was the appellant’s claim that he spoke the language of the Tama Tribe, Rotana. He also relied upon his background knowledge of his tribe.
8. In support of his claim, the appellant produced and relied upon a letter from the “Tama Tribe Community in the UK” dated 11 July 2016 (at A5-A6 of the bundle) in which the General Secretary, Mr Hamad confirmed that the appellant was a member of the Tama Tribe having personally had prolonged conversations with him in the Tama language and based upon his knowledge of Tama issues. In addition, there was a letter from the “Darfur Community in Wales” dated 12 June 2016 that also confirmed that the appellant was a member of the Tama Tribe. However, that was based upon information received from the Tama Tribe Community in Wales rather than based upon any independent assessment. Finally, the appellant relied upon a supporting document headed “Tribal Identity Report” dated 9 August 2016 prepared by a Mr Mohamed again attesting to the appellant being a member of the Tama Tribe.
9. Mr Vokes, who represented the appellant, submitted that the judge had fallen into error in her assessment of this evidence.
10. First, he submitted that she had made a clear error of fact when in para 33 she stated that the appellant’s evidence was that he “did not speak” Rotana. Mr Vokes submitted that the appellant’s evidence in his asylum interview was that he did speak Rotana and he referred us to the appellant’s answers at questions 43-44 (see A6 of the bundle). He submitted that this mistake was central to the judge’s adverse finding given that the evidence relating to the appellant’s knowledge of his claimed tribe was finely balanced. Some of the answers given by the appellant were unverifiable by the respondent.
11. Secondly, Mr Vokes pointed out that when the judge further considered the appellant’s language, she adversely commented on the fact that he spoke Arabic in “everyday usage” without having regard to the fact that the appellant’s claim was that he had moved from Darfur to Omdurman when he was 1-year-old.
12. Thirdly, Mr Vokes submitted that the judge had been wrong to give “little weight” to the supporting letters, in particular that from the Tama Tribe Community in the UK on the basis that the appellant had had “nearly a year” to acquire the knowledge about his tribe. Mr Vokes submitted that, even if that were true as regards the appellant’s knowledge relied upon in the letter, it could not be true about his ability to speak Rotana in which he had conversed with Mr Hamad.
13. Finally, Mr Vokes submitted that the judge had been wrong to give “little weight” to Mr Mohamed’s evidence even though, Mr Vokes accepted, he was not an expert. The evidence was entitled to some weight on the basis that it was a letter from one Sudanese citizen about another.
14. On behalf of the Secretary of State, Mr Diwnycz submitted that the judge was entitled to give the weight she did to the documents. Mr Mohamed’s report was not that of an expert. Further, as regards the letter from the Tama Tribe Community UK, the letter failed to give reasons for its conclusion and the writer had not come to court to support it. Mr Diwnycz submitted that the appellant may be from the Tama Tribe but the evidence did not establish it and the judge’s adverse finding was within the bounds of what a reasonable judge could decide based upon the evidence.
Discussion
15. We do not accept Mr Vokes’ submission that the judge approached the appellant’s claim on the basis that he did not speak the language of the Tama Tribe, namely Rotana. Whilst self-evidently the judge wrongly recorded the appellant’s evidence in interview in para 33 when she stated “He did not speak” Rotana, it is clear that she went on to approach his claim on the basis that he did, in fact, speak it but, counted against him that he did not use it in “everyday usage”. Consequently, at para 34 the judge said this:
“34. I also note that when the Appellant was asked how he would be identified as from the Tama tribe he said that he would be recognised as a Tama ‘From my Rotana. I’m not sure if any other ways’ (AI, Q 60). He stated that the language he used every day was Arabic so when questioned as to how people would know he was from Tama if he did not speak their language he replied ‘It is difficult to know that I am from Tama’ (AI, Q61). I find that if the Appellant were truly a member of the Tama tribe he would speak their dialect, not Arabic, in every day usage and can find no cogent reason why this would not be the case.”
16. Likewise, at para 39 the judge refers to the appellant’s evidence that his family did not speak Rotana at home.
17. Further, in respect of the evidence of Mr Mohamed, it is accepted that he was not an expert although he claimed some experience with international organisations and the EU in Sudan and overseas. He claimed no expertise in linguistic analysis but concluded that the appellant spoke Rotana with a typical Darfuri accent. Also, he relied upon the appellant’s particular knowledge for his conclusion as to his ethnic and geographic origins. In our judgment, given the accepted lack of expertise, the weight to be given this evidence (particularly in the absence of any cross-examination) lay peculiarly within the domain of the judge and we are unable to conclude that it was perverse or irrational of her to give it “little weight”.
18. Turning to the judge’s treatment of the supporting letters from the Tama Tribe Community UK and the Darfur Community in Wales, the judge’s reasons for giving both of these documents “little weight” is set out at para 37 as follows:
“37. I now turn to the other evidence submitted to support the Appellant’s ethnicity claims. He has submitted a letter from the Tama tribe Community UK (Appellant’s bundle, pages A5-A6) and a letter from the Darfur community Cardiff (Appellant’s bundle, page A7). The letter from the Tama tribe seems to just agree with the content of the Darfur Community letter. The Appellant came to the UK in October 2015 and this letter is dated 11 July 2016. The Appellant has not produced the original of this document and the writer of the letter did not attend to give the Appellant support at the hearing. The letter states the Appellant knew a lot about the Tama but it is the case that the Appellant has had nearly a year to look into the Tama tribe and learn considerably more than he did in his AI. I give little weight to these letters.”
19. As we have already commented, the letter from the Darfur Community in Wales’ letter added little to that of the Tama Tribe Community in the UK letter because the former, in effect, relied upon the views formed by the latter organisation. In para 37, the judge wrongly, in our view, appears to downplay the value of the Tama Tribe Community in the UK letter on the basis that it “just agree[s] with the contents of the Darfur community letter.” In fact, the reality is the reverse. The letter with the greater significance is the one from the Tama Tribe Community in the UK letter which contains the reasoned assessment of the appellant’s origins. That was, therefore, not a proper basis to ‘downplay’ the evidential value of the letter from the Tama Tribe Community in the UK letter.
20. Further, it is difficult to see why the absence of an “original” of either document was significant. It was not suggested before the judge that either document was not genuine or authentic.
21. We accept that the judge was entitled to have regard to the fact that the authors, in particular Mr Hamad of the Tama Tribe Community in the UK’s letter, did not give evidence and were not cross-examined. However, in rejecting this letter, we accept Mr Vokes’ submission that it was not a proper basis to disregard the evidence that the appellant spoke Rotana that “nearly a year” had passed since the asylum interview and that the appellant had, therefore, time to learn “considerably more” than he knew in his asylum interview. Whilst that could be relevant to his knowledge, there is no suggestion in the evidence that it is relevant to his ability to speak Rotana, the language of his claimed tribe.
22. In our judgment, the judge failed to give adequate reasons in para 37 for giving “little weight” to the documents, in particular that from the Tama Tribe Community in the UK.
23. We also have concerns about the judge’s reasoning in paras 34 and 39 when she doubted the appellant’s origins given that he does not speak Rotana “in everyday usage”. It is not clear to us that the judge in reaching that view has taken into account the appellant’s evidence that he left the Darfur area with his family to live in Omdurman (which is close to the capital Khartoum) when he was 1-year-old. As a consequence, he and his family spoke Arabic on an everyday basis.
24. For the above reasons, given the centrality to the appellant’s claim that he was a member of the Tama Tribe and spoke its language, the judge’s failure to properly take into account the evidence as we have set out above was a material error of law. In reaching that view, we bear in mind that the evidence concerning the appellant’s knowledge was equivocal. Mr Vokes described it as “finely balanced”. The judge identified errors in the appellant’s knowledge in para 33 but, by the same token, the appellant gave very specific answers to some questions in interview which the Home Office was simply unable to verify.
25. In light of the view we have taken concerning the judge’s adverse finding in respect of the appellant’s claimed tribe, it is not necessary for us to deal with Mr Vokes’ submissions which challenge the judge’s reasoning and findings at paras 40-42 in respect of the appellant’s account to have been arrested, detained and beaten for fourteen days as a result of distributing cards in order to collect money for the poor in Darfur. Given the judge’s adverse finding in relation to the appellant’s claimed tribal origins, that adverse finding has, in our judgment, necessarily tainted and so impugned her adverse findings based upon credibility in general.

Decision
26. For the above reasons, the decision of the First-tier Tribunal to dismiss the appellant’s appeal involved the making of a material error of law. That decision cannot stand and is set aside.
27. Given the nature and extent of the fact-finding required, and having regard to para 7.2 of the Senior President’s Practice Statement, the appropriate disposal of the appeal is that we remit the appeal to the First-tier Tribunal and direct a rehearing de novo before a judge other than Judge Suffield-Thompson.

Signed

A Grubb
Judge of the Upper Tribunal

Date