Tribunal decisions

The decision

IAC-BH-PMP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01599/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 9 November 2016
On 14 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE SHAERF

Between

BAYOUSH KEBEDE WOLDEYES
(anonymity direction Not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Sesay, solicitor of Duncan Lewis
For the Respondent: Mr P Duffy of the Specialist Appeals Team

ERROR OF LAW DECISION AND REASONS
The Appellant
1. The Appellant is a national of Ethiopia born on 4 July 1958. On 13 June 2015 she arrived with leave to enter as a visitor. On 23 September 2015 she claimed asylum because she feared to return to Ethiopia on account of her involvement with the Oromo Liberation Front.

The Respondent's Decision
2. On 5 February 2016 the Respondent refused her application and gave directions for her removal to Ethiopia. The Respondent considered the Appellant's account of her activities with the OLF not to be credible and that on return there was no real risk that she would be ill-treated.
The First-tier Tribunal Proceedings
3. On 17 February 2016 the Appellant lodged notice of appeal relying on her involvement with the OLF and asserting that her return would place the United Kingdom in breach of its obligations under Articles 2 and 3 of the European Convention and also but without giving reasons or details under Articles 6 and 8.
4. By a decision promulgated on 8 September 2016 Judge of the First-tier Tribunal Emerton found the Appellant not to be credible and dismissed her claim on all grounds.
5. The Appellant sought permission to appeal on the grounds that the Judge's findings on her claimed initial arrest in 2005 were flawed and lacked adequate reasoning. Additionally, having accepted the Appellant's ethnicity he had failed to give adequate weight to the background evidence and the Appellant's sur place activities. An additional ground asserted the Judge had erred in law by imposing a requirement for corroboration of elements of the Appellant's account.
The Upper Tribunal Proceedings
6. The Appellant attended the hearing although she took no active part in the proceedings.
Submissions for the Appellant
7. Mr Sesay submitted the Judge had erred in making corroboration of the Appellant's account a necessary requirement and in making a pre-supposition about how a genuine asylum seeker would behave. Additionally, the Judge having accepted the background evidence of being Oromo in Ethiopia had erred in not finding that this showed there were very significant obstacles to the Appellant's return.
8. Mr Sesay referred to paragraphs24 and 30 of the Judge's decision and submitted that he had made findings based on an absence of documentation and that in the circumstances it was unreasonable to have expected the Appellant as an asylum-seeker to have produced documentation. This amounted to requiring corroboration.
9. Mr Sesay asserted the Judge had erred by attaching little weight to the letter sent to the Appellant by her cousin in Ethiopia. No other reason was given. He went on to submit that at paragraph 28 the Judge had failed to explain why the Appellant's involvement in charitable activities in Ethiopia did not advance her case or why production of evidence about this work was necessary to establish her case. He concluded by urging me to find a material error of law in the decision.
Submissions for the Respondent
10. Mr Duffy referred to the issue of corroboration and submitted that the law relating to the need or lack of need for corroboration arose out of the context that a person leaving his or her country of origin to seek asylum will often not have the opportunity to gather and take documentation to support the asylum claim. In this case the Appellant had entered the United Kingdom as a visitor and the Judge had commented on the Appellant's failure to produce evidence in part in respect of matters in the United Kingdom. No reason had been given by the Appellant for the lack of evidence from her cousin in the United Kingdom. He referred me to TK (Burundi) v SSHD [2009] EWCA Civ. 40.
11. The Appellant had stated she was still in contact with relatives in Ethiopia and had not given any explanation why she had not been able to produce documents from Ethiopia, if necessary with their assistance, to evidence her previous work and status in Ethiopia.
12. The Judge had found inconsistencies in the Appellant's account and was entitled to comment on the failure of the Appellant when asked at her screening interview to mention that she had been arrested and tortured. I noted that the screening interview had been on appointment and not immediately on the Appellant's first arrival in the United Kingdom, so she had ample notice.
13. There was no error of law in paragraph 32 of the Judge's decision. He had been entitled to and given sufficient reasons for his conclusion on the paucity of the oral testimony given by the Appellant. The principal reason why the Judge had found against the Appellant was because of the weakness or inadequacy of her oral testimony.
14. Mr Duffy turned to the grounds challenging the Judge's treatment of the Appellant's claim under paragraph 276ADE of the Immigration Rules. The Appellant had claimed she had had a good job and a good lifestyle in Ethiopia as noted at paragraph 30 of the decision. The Judge had not accepted her claim to fear persecution on return and found there would be no reason why she should not return to Ethiopia. Consequently, his finding that there were no very significant obstacles to her re-integration on return was justified. Mr Sesay for the Appellant interjected that paragraph 276ADE did not preclude a consideration of the Appellant's private life outside the United Kingdom.
15. I pointed out that paragraph 276ADE(1) states that the paragraph addresses "the requirements to be met by an applicant for leave to remain on the grounds of private life in the UK" (emphasis added).
16. Mr Duffy addressed the interjection. Paragraph 276ADE of the Immigration Rules did not provide a basis for a "weaker" asylum claim. If it were to be pleaded, the claim would have to rely on return amounting to a nullification of an applicant's private life in the place to which he or she was to return. He reiterated that the Judge had found that on return to Ethiopia the Appellant would not be at risk of ill-treatment and on her own admission she had enjoyed a good job and private life circumstances in Ethiopia before she had come the United Kingdom. A claim engaging the nullification of private life in the removal destination would have to be sufficiently strong to succeed on protection grounds otherwise it could not succeed at all.
17. In response Mr Sesay merely reiterated his claim that it was an error of law for the Judge to have pre-supposed how an asylum seeker would behave in terms of whether corroborative evidence could be provided. I reserved my Decision.
Consideration and Conclusion
18. I have considered the oral submissions together with the skeleton argument submitted by Mr Sesay. The Respondent's response of 20 October 2016 under Procedure Rule 24 merely asserts in effect that the Judge did not make any error of law.
19. The skeleton argument makes reference to a number of decisions and judgments but otherwise adds nothing to the grounds for appeal.
20. The Judge expressly stated at the start of paragraph 24 of his decision that there was no duty upon an Appellant to obtain corroboration. He went on to comment about an expectation that a genuine asylum seeker would seek to obtain supporting evidence. His criticism at paragraphs 24 and 27 relates to the Appellant's relatives in the United Kingdom and notes the absence of evidence from any of them. At paragraphs 24 and 32 he remarks on the vague and evasive nature of the oral testimony of the Appellant.
21. Other than in cross-examination the discrepancy between the Appellant's claim at screening that she had never been arrested or detained and her claim to have been arrested and tortured in 2005 was not explored, no submissions were made on the point which the Appellant had dealt with in her statement of 29 July 2016, signed subsequent to the despatch of the Respondent's bundle on 20 July 2016, that she had not seen her screening interview and that the question asked was whether she was arrested due to criminal convictions or terrorism.
22. The Appellant's skeleton argument challenges paragraph 26 of the Judge's decision dealing with the expert evidence from Dr Berri. The Judge made the point that Dr Berri's opinion will have been based on an acceptance of the Appellant's account. This recognises that it is not the function of an expert to assess credibility. The Judge notes the absence of an adequate professional history to demonstrate Dr Berri's expertise and concludes that there is little of substance in his evidence.
23. At paragraph 30, the Judge noted that the Appellant had provided no documentary evidence to support her claim that all her assets had been confiscated and her bank account frozen. The Judge was entitled to give little weight to this oral testimony. The freezing of assets including bank accounts is a matter which it would not be unreasonable to expect some documentary evidence to be readily available or the absence of it to be given a proper explanation. There would appear to have been none before the Judge.
24. The Judge was entitled to find that the documents relating to the Appellant's charity did not advance her case to face persecution or ill-treatment on return to Ethiopia. Of particular note is the Judge's finding at paragraph 32 that:-
Overall, there were significant weaknesses in the Appellant's account. Her oral evidence was the opportunity to retrieve the situation, even if she chose not to call any UK relatives in support of her case, or provide better and timelier documentary evidence in support.
The Judge found the Appellant accepted that she had left a good job and a comfortable lifestyle in Ethiopia as well as children. In the circumstances the Judge was entitled to consider that her claim was based simply on the general situation for Oromo in Ethiopia and to his findings that there were not very significant obstacles to her re-integration on return.
25. In any event, I find that paragraph 276ADE relates to private life in and not outside the United Kingdom and I accept the submission made for the Respondent that her claim based on private life outside the United Kingdom would have to be that the damage to the claimant would be sufficient to support a claim for protection. The Appellant has evidently failed to discharge the burden of proof on her in this respect.
26. I conclude that it might be arguable certain parts of the Judge's decision might have been more felicitously worded, for instance by making reference to the amount of weight to be attached to various parts of the Appellant's evidence. However, this does not amount to an error of law such that the Judge's decision should be set aside in whole or in part.
SUMMARY OF DECISION
The decision of the First-tier Tribunal did not contain an error of law and it shall stand.

No anonymity direction is made.

Signed/Official Crest Date 11. xi. 2016

Designated Judge Shaerf
A Deputy Judge of the Upper Tribunal