Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01409/2015

THE IMMIGRATION ACTS

Heard at: Field House
Decision and Reasons Promulgated
On: 2nd August 2016
On: 2nd August 2016

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

VP
(anonymity direction made)

Appellant
And

The Secretary of State for the Home Department
Respondent

For the Appellant: Mr Murphy, Counsel instructed by Raffles Haig Solicitors
For the Respondent: Mr Tufan, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a national of Armenia born in 1992.

Anonymity Order

2. The Respondent is subject to a deportation order. He would therefore not ordinarily have his identity protected. This appeal however turns in on his claim for international protection. 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 arrived in the United Kingdom in October 2007 with valid leave to enter as a dependent child. He was then aged 14. He was subsequently granted Discretionary Leave in line with his mother. He has resided in the United Kingdom ever since.

4. On the 22nd April 2014 the Appellant was convicted at Woolwich Crown Court of robbery. The sentencing remarks of the Judge make clear that it was an extremely serious offence. The Appellant and two other men preyed upon a house in their neighbourhood which they knew to be occupied by at least one young woman who was known to one of the perpetrators as a family friend. The Appellant and one other man violently beat down the front door so that the young woman who was cowering behind it was injured. Once they had gained entry they bullied and intimidated the woman and her sister into giving up where money or jewellery might be hidden. The Appellant was sentenced to four years' imprisonment for his part in the attack, a sentence reduced from the expected six for a plea of guilty.

5. The Appellant therefore fell to be deported as a foreign criminal. A decision to that effect was taken on the 10th December 2014. The Deportation Order was signed on the 11th February 2015. The Respondent made arrangements for the Appellant to be removed from the country. A week before the scheduled removal, on the 15th June 2015 the Appellant made a protection claim. He stated that he would be liable for military service in Armenia and that conditions that he would face in the army would breach Article 3 ECHR. He claimed that there was a real risk that he would be imprisoned upon return to Armenia for having avoided call-up at 18.

6. The Secretary of State accepts that the Appellant will be liable for call-up but not that he would face any risk of serious harm. The evidence showed that young men were liable to call-up between the ages of 18 and 27 so it was not likely that he would face punishment for not having reported previously. He could simply present himself to the military commissariat on return. There were also provisions whereby individuals could apply for exemptions, for instance on religious grounds. Armenians living abroad who had missed call up could simply attend the consulate and volunteer to report.

7. The Appellant appealed and the matter came before the First-tier Tribunal (First-tier Tribunal Judge Grimmett and NLM Mr GF Sandall).

8. The First-tier Tribunal was not entirely satisfied that the call-up papers had been provided to the Respondent, and in any event the HOPO had not seen them. The case was therefore adjourned to enable the Respondent to consider this material. It is not clear from the determination what view was taken by the Respondent at the resumed hearing, but the Tribunal, in its determination dated 29th February 2016, attached no weight to the documents at all. The reasons are set out at paragraphs 22-24. In essence they were:

i) That neither the Appellant nor his mother nor uncle had previously said that call-up papers had been received, despite the fact these documents had purportedly been sent to the Appellant's mother on the 7th July 2015. This included silence on the matter in a letter from her dated 10th July 2015;

ii) The Appellant had sought further leave to remain in May 2013 when he was twenty years old, yet had not mentioned to the Home Office at that time that he was worried about conscription.

9. The First-tier Tribunal did not therefore accept that the Appellant had been called up as claimed. Nor did it accept his evidence that he had a conscientious objection to violence; in light of his conviction that claim was unsustainable. The determination goes on to consider the country background material. This was confined to some internet research reproduced in the refusal letter. There was found to be no evidence to support the claim that the Appellant would face harsher treatment than any other recruit, either because of his draft evasion or criminal conviction. Paragraph 37 reads:

"According to the Respondent Armenian citizens living abroad are able to register at a consulate in order to apply for military service despite not being present in Armenia when originally called to do so and that individuals within the country should approach the military commissariat if they have not been served with mandatory call-up papers. That suggests that even if the call-up papers were reliable documents, which we have not found, as the Appellant is not in Armenia he can simply contact the consulate and register there for call-up and will not be penalised for not serving when he was 18?"

10. At 42 the Tribunal goes on:

"We also note that the background evidence suggests that the Armenian authorities maintain a strict monitoring of draft evasion and those who do not respond to a call-up usually receive two written warnings first and then they may be arrested and the military commission visits the home addresses of men who do not respond to a written warning. The Appellant does not say that his grandparent's house received any written warnings, none have been produced and there was no evidence of any visits to them by the police since the claimed call-up nearly two years ago".

11. On the basis of these findings the appeal is dismissed, the Appellant having failed to establish a real risk of Article 3 ill treatment.

The Appeal

12. The grounds of appeal are:

a) The findings on the call-up papers were irrational and fail to take into account the clear evidence (in the form of an email chain) that the Appellant 's mother had sent them to her previous solicitors;

b) The determination ignores the objective material cited in the refusal letter;

c) The Respondent's refusal letter confirms that those who undertake military service face appalling conditions amounting to inhuman and degrading treatment;

d) If Article 3 was not made out the Judge failed to consider whether the circumstances faced by conscripts would nevertheless amount to "very compelling circumstances" under paragraphs 398-399A.

My Findings

13. I have some sympathy with the Appellant's complaints about the treatment of call-up papers, as did Judge Shimmin, who granted permission. There was an e-mail showing that the Appellant's mother had forwarded these documents to her then lawyer some time ago, and that this lawyer had assured her that they had been passed on to the Home Office. The fact that none of the statements expressly said "the Appellant has received call up papers" had to be assessed in that context: the Appellant presumed that fact to be at the forefront of the decision makers mind, since he believed the Home Office to be in possession of said documents. Paragraph 23 notes that the mother's statement of the 10th July 2015 makes no mention of papers she now purports to have received only three days before, but again this must be read in the context that the same week she had emailed the documents to the same solicitor to whom she now wrote. Her letter of that date was the text to be used in her witness statement attesting to her son's upbringing and the obstacles that he has faced. There was no place for her to have mentioned the papers - the letter was related to something else entirely. Similarly there would have been no need for the Appellant to mention his concerns to the Home Office in 2013 since there was at that stage no prospect of him going back to Armenia.

14. I am not however satisfied that this error can be said to be material. That is because the Tribunal make it perfectly plain at paragraph 37 that they have considered the position in the alternative, that call-up papers have been received. They find no risk, even on that alternative basis, for two very clear reasons:

i) The country background material cited in the refusal letter - and expressly adopted by the Appellant - is that Armenians who find themselves out of the country and so to have missed their call up can simply report to the consulate to arrange their military service [at 37-38];

ii) The Appellant has failed to show that conditions for conscripts reach the threshold of inhuman and degrading treatment [at 45].

15. In respect of the 'consulate' point Mr Murphy submitted that the Tribunal had failed to have regard to the objective evidence that "men who do not respond to a call up usually receive two written warnings first. If they fail to respond to these warnings the police may arrest them". He submitted that the evidence to do with foreign consulates had to be read alongside that evidence and that this showed the Appellant to be at risk of arrest. First of all I would observe that the Tribunal did not "ignore" that evidence; it is expressly addressed at paragraph 42 where the determination makes the point that no written warnings appear to have been issued in this case. Secondly the tension between reporting at a consulate and being arrested for draft evasion in-country is dealt with head-on at paragraph 38:

"The Appellant says the Armenian authorities will know on return that he has not served and will send him to prison for two years. We are not satisfied that this is the position. We accept that those who avoid the call-up may be liable to two years imprisonment but we are not satisfied that this Appellant has shown that he has yet been called up and he can avoid prison simply by registering at the local consulate to indicate where he is so that he can be called up formally".

16. As to grounds (c) and (d) above these are premised on a wholly inaccurate reading of the refusal letter. The Respondent of course made no concession to the effect that conditions in the army breached Article 3 - had she done so then the Appellant's case would never have got to appeal, since it was accepted that as a healthy young man he is liable for call-up. What the letter does is acknowledge that abuses do take place, but that the Armenian authorities are making efforts to combat them and are providing human rights training to military personnel.

Decisions

17. The determination of the First-tier Tribunal does not contain an error of law such that is should be set aside and the decision is upheld.

18. There is an order for anonymity.

Upper Tribunal Judge Bruce
2nd August 2016