Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers:
PA/01534/2015
PA/01667/2015

THE IMMIGRATION ACTS

Heard at: Liverpool
Decision & Reasons Promulgated
On: 1st February 2017
On: 23rd February 2017

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

Amarjeet Singh
Varyam Singh
(no anonymity direction made)
Appellants

And

The Secretary of State for the Home Department
Respondent

For the Appellants: Ms Faryl, Counsel instructed by Immigration Advice Service
For the Respondent: Mrs Aboni, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. The Appellants both claim to be nationals of Afghanistan. The First Appellant claims to have been born in 1989. The Second Appellant, said to be his father, was born in 1950. They appeal with permission1 the decision of the First-tier Tribunal (Judge Lambert) to dismiss their linked protection appeals.

Background and Decision of First-tier Tribunal

2. The Appellants' claim for international protection was that they faced a well-founded fear of persecution in Afghanistan for reasons of their religion. They are both Sikhs.

3. The Respondent accepted that the Second Appellant at least was Sikh, but rejected the claims that the men were Afghani. The Respondent noted that both men chose to be interviewed in Punjabi, not a language spoken in Afghanistan. Their knowledge of the country, and in particular of their claimed place of residence Jalalabad, was found to be lacking. Neither man had any documentary evidence of his nationality. The claims were accordingly rejected.

4. When the matter came before the First-tier Tribunal the Appellants had managed to obtain some evidence to support their contention that they were Afghani. They had applied to the Afghan embassy in London for a document confirming their identities. They had twice attended, and had been interviewed. It is said that background checks were conducted; Afghan passports were issued to each Appellant on the 13th April 2016. The passports were produced at a Case Management Review (CMR) on the 19th April 2016 and copies thereof submitted to the Respondent, who had indicated at that stage that she wished to undertake verification checks. A further hearing listed for the 3rd May 2016 was adjourned at the request of the Respondent because those checks had not yet been completed. On the 25th July 2016 the matter came before First-tier Tribunal Judge Lambert for substantive hearing. Although the Respondent had made enquiries, those enquiries had not yet yielded any results. There is no indication that the Presenting Officer with conduct of the case, a Mr B. McBride, applied for any further adjournment. The case therefore proceeded, with the Appellants relying on their oral evidence and the Afghani passports that were available at the hearing.

5. The Tribunal was not impressed by the evidence presented by the Appellants. The fact that both men chose to speak Punjabi rather than any of the national languages of Afghanistan weighed against them. The claim of the Second Appellant to be fluent in Dari and Pushto remained unproven. Neither could give satisfactory evidence about Jalalabad or about Afghanistan generally. As to the passports purportedly issued by the Afghan embassy in London, the Tribunal said this:

"9.8. As for the issue of the national identity documentation, the passports now produced by the Appellants are a matter of concern. I find I have no cogent explanation as to why these documents should have been issued in Germany, a country with which neither Appellant has any connection. If this were normal procedure so far as the Afghan Embassy in London - where the applications are said to have been made - then it contradicts the Second Appellant's own oral evidence to me explaining their visit to the embassy that "we didn't have any proof, but after talking to them they believed me and issued the passports". The father's evidence that no documents at all were submitted to the embassy, was I noted inconsistent with the son's evidence that the embassy was given a file out of which they "took the documents they needed". In any event neither Appellant claimed to have produced any document to the embassy capable of confirming their identity or origin and I do not find it at all likely that any country would issue a passport in these circumstances. There is also no documentary evidence of the passport applications or transmission other than the claimed receipts for the fee, said to have been paid in GBP. These are on unheaded paper, unsigned and unstamped, and wrongly spell the word receipt. In summary, whilst the Respondent had the opportunity to check the validity of these passports but by the time of the hearing before me had received no response, it is nevertheless for the Appellant's to establish reasonable grounds for thinking they are genuine. The findings I have made in this paragraph militate against this".

6. The Tribunal did not accept that the Appellants had discharged the burden of proof, even to the lower standard, and dismissed the appeals.

The Appellants' Challenge

7. The written grounds, drafted by Ms Faryl of Counsel, submit that three errors of law are to be found in the determination. These are:

i) There was a procedural unfairness at hearing.

In cross examination the Second Appellant had been asked why the passports were issued in Germany. He had replied that he did not know but that he had been given a letter from the embassy explaining that this was the procedure and that there would therefore be a delay in him receiving them. In response to questions put in re-examination the Second Appellant produced the letter. The Tribunal refused to admit the letter into evidence. It is contended that this document could plainly have gone some way to assuaging the doubts expressed by the Tribunal about the passports. The HOPO on the day had not objected to its admission into the evidence and in those circumstances there was a material unfairness in the Tribunal having refused to consider it.

ii) The Tribunal erred in failing to apply the principle in Singh v Belgium (33210/11).

Whilst the burden on proving nationality did lie with the Appellants they had produced prima facie evidence to establish their case. In these circumstances there was a responsibility on the national authority to make relevant enquiries. It would be a relatively straightforward matter for the Respondent to liase with the Afghan authorities if there were any doubts about the authenticity of the passports.

iii) The Tribunal made findings contrary to the evidence and based on "baseless supposition"

It is submitted that in making her findings on language Judge Lambert failed to take into account the evidence contained in the Country Information and Guidance (January 2016) to the effect that Sikhs in Afghanistan commonly use Punjabi at home.

Discussion and Findings

8. In her oral submissions Ms Faryl concentrated on ground (i). She submitted that in its refusal to admit the letter from the Afghan embassy into the evidence the Tribunal had denied the Appellants the opportunity to respond to a forensic challenge, and had plainly failed in its duty to take all relevant evidence into account. I checked the Record of Proceedings in the file and informed the parties that it did accord with Ms Faryl's recollection of the hearing. Judge Lambert had recorded that she had refused to admit the document as cross-examination had ended. Mrs Aboni was prepared to concede that there did not appear to be good reason to refuse to admit the letter into the evidence and that the failure to do so could potentially have led to material unfairness.
9. Upon hearing that I asked to see the letter. Ms Faryl did not have it. Nor had she seen it at the first hearing. She had not been aware of its existence prior to the Second Appellant's cross-examination and had not thought to take instructions on it after the hearing. Nor had she sought it out after she received the determination and before she drafted the grounds of appeal.

10. In MM (unfairness: E&R) Sudan [2014] UKUT 00105 (IAC) the Upper Tribunal (President McCloskey J and Upper Tribunal Judge Southern) reviews the principles underpinning the right to a fair hearing:

15. The law reports and texts are replete with formulations and manifestations of this right. For present purposes, and bearing in mind the doctrine of precedent, we focus upon two of the leading decisions of the superior courts. The first of these is R - v - Chief Constable of Thames Valley Police, ex parte Cotton [1990] IRLR 344. It may be observed that, in both the reported cases and the leading text books, this decision has not received the prominence it plainly merits. This might be attributable to its appearance in one of the minority series of law reports. Having said that, Cotton has been recently quoted with approval and applied by Moses LJ in McCarthy v Visitors to Inns of Court and Bar Standards Board [2013] EWHC 3253 (Admin) and by Underhill J in R (Hill) v Institute of Chartered Accountants [2013] EWCA Civ 555. In Cotton, the issue, in a nutshell, was whether the decision of the Chief Constable to dismiss a police officer was vitiated by procedural unfairness on account of inadequate disclosure to the officer of the case against him. We distill the following principles from Cotton:

(i) The defect, or impropriety, must be procedural in nature. Cases of this kind are not concerned with the merits of the decision under review or appeal. Rather, the superior court's enquiry focuses on the process, or procedure, whereby the impugned decision was reached.

(ii) It is doctrinally incorrect to adopt the two stage process of asking whether there was a procedural irregularity or impropriety giving rise to unfairness and, if so, whether this had any material bearing on the outcome. These are, rather, two elements of a single question, namely whether there was procedural unfairness.

(iii) Thus, if the reviewing or appellate Court identifies a procedural irregularity or impropriety which, in its view, made no difference to the outcome, the appropriate conclusion is that there was no unfairness to the party concerned.

(iv) The reviewing or appellate Court should exercise caution in concluding that the outcome would have been the same if the diagnosed procedural irregularity or impropriety had not occurred.

16. These last two propositions are expressed with admirable clarity in the judgment of Simon Brown J, which was under appeal (at page 13B/D):

"It is sufficient if an Applicant can establish that there is a real, as opposed to a purely minimal, possibility that the outcome would have been different."

The complaint in Cotton was that certain information, damaging to the police officer's case, had not been disclosed to him. Simon Brown J concluded that even if this disclosure had taken place -

"? there would have been no real, no sensible, no substantial chance of any further observation on the Applicant's part in any way altering the final decision in his case."

The Court of Appeal upheld both his conclusion and the governing principle which he formulated: see the uncritical rehearsal of the Applicant's argument in the judgment of Slade LJ (at pages 10 - 11) and the endorsement of the conclusion of Simon Brown J by all three members of the Court of Appeal. Slade LJ espoused the following formulation of the governing principle:

"Natural justice is not concerned with the observance of technicalities, but with matters of substance."

[At page 14.]

In the second of the three judgments delivered, Stocker LJ considered the threshold for intervention by the Superior Court to be "a real risk of injustice or unfairness" [page 15].

17. The third judgment, that of Bingham LJ, contains a comprehensive review of the authorities, which commences with the following statement [page 16]:

"Judges of high authority have held that the subject of a decision who has been denied a right to be heard cannot complain of a breach of natural justice (or unfairness) unless he can show that the decision might have been different if he had been heard."

[Emphasis added.]

11. Applying these principles to this case I do not accept that the Appellants can show there to be any material unfairness. Ms Faryl cannot begin to argue that the decision might have been different had the document been produced (the formulation of Bingham LJ), since she does not know what was in the letter. In her submissions she said that she was presuming that the Second Appellant was being accurate and truthful when he said that the letter explained that the passports were being prepared in Germany. That is a wholly unsatisfactory basis upon which to mount this appeal. Firstly, there was no evidence as to whether the Second Appellant had actually read the letter; I am not told what language it might have been written in, nor whether he can read and write Pushto, Dari or English (presuming a letter issued by the Afghan embassy in London to be in one of these three). I am in effect asked to find a material unfairness in approach on what might be third-hand hearsay. Secondly, this was a witness whose credibility had been comprehensively rejected by the Tribunal.

12. I would add that the 'Germany issue' was not the only point taken against the Appellants. Paragraph 9.8 of the determination contains a further three reasons as to why little weight is to be attached to the passports:

i) The two Appellants were inconsistent in their accounts about what evidence was produced at the embassy;

ii) It is not credible that the Afghan authorities would simply issue passports based on what the Appellants had told them;

iii) The 'receipts' said to have been issued by the embassy were on unheaded paper, were neither signed nor stamped and the word 'receipt' is wrongly spelled.

13. The grounds of appeal mount no challenge to these reasons and I find them to be a sound and rational basis upon which to decline to place weight on the Afghan passports.

14. Ground (ii) is that the Respondent failed to discharge her responsibility to verify the passports and that the Tribunal erred in failing to weight that matter in the balance. The Respondent had been granted an adjournment in order to conduct her checks but at the time of the hearing before the First-tier Tribunal had no evidence to offer one way or the other. At the hearing before me Mrs Aboni explained the instructions that she had on this matter as follows: "there is still no resolution of this issue. There are other cases involving Afghan passports issued in Germany after applications being apparently made in London but we have found there to be no means of checking the validity of these documents so will be taking no further steps".

15. This is not a case where the Respondent failed to make checks. She attempted to verify the passports but could obtain no response. Mrs Aboni said that it was her understanding that there was some difficulty in getting the Afghani embassy in Germany to respond to requests. This is not therefore a case where verification would be easy or straightforward for the Respondent: see MJ (Singh v Belgium: Tanveer Ahmed unaffected) Afghanistan [2013] UKUT 00253 (IAC). The 'obligation' on the Respondent arising from Singh does not extend to proving the Appellants' case for them.

16. The final ground relates to the Appellants' use of Punjabi. Ms Faryl submits that the Tribunal failed to take into account objective country background material to indicate that Afghan Sikhs are likely to speak Punjabi in the home. This ground is entirely without merit. First of all, the evidence in question is squarely addressed in the determination at 9:7. The Tribunal expressly recognises that Punjabi is spoke in the Sikh community. The point taken against the Appellants is the failure of either of them to demonstrate that they could speak one or more of the majority languages spoken in Afghanistan outside of their home. Although the Second Appellant professed fluency in Pushto and Dari no evidence was produced as to his ability to speak either language. The Tribunal was not satisfied that these adult men (as opposed to women keeping purdah) would be unable to communicate with the population at large. See fot instance at 9.7: "there is no support for the proposition that a 25 year old Afghan Sikh would not also be able to communicate in the language of Afghanistan's majority Pushto community, which the evidence states that Sikhs generally use and in which his own father claims to be fluent".

Decisions

17. The determination of the First-tier Tribunal does not contain any errors of law and it is upheld.

18. I was no asked to make an anonymity order and on the facts I see no reason to do so.

Upper Tribunal Judge Bruce
23rd February 2017