Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01604/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Determination issued
on 18th August 2016
On 2nd September, 2016

Before

upper tribunal JUDGE MACLEMAN

Between

IBRAHIM AHMED HAMMAD
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Mr Winter, Advocate, instructed by Latta & Co., Solicitors
For the Respondent: Mrs Pettersen, Senior Presenting Officer

DETERMINATION AND REASONS
1. The appellant identifies himself as a citizen of Syria, born on 29th March 1993. He had not asked for an anonymity order.
2. The respondent does not accept that identity, and thinks that the appellant may be an Egyptian national.
3. The respondent's reasons for refusing the asylum claim are explained in the letter dated 30th September 2015.
4. First-tier Tribunal Judge Gillespie dismissed the appellant's appeal for reasons explained in his decision promulgated on 28th April 2016.
5. The grounds of appeal to the Upper Tribunal are as follows:
'Ground 1 - Error when assessing language analysis report.
The FTT erred in law at paragraph 30 when assessing the language analysis report ? Although the FTT has regard to ? SSHD v MN and KY [2014] SC (UKSC) 183 it failed to acknowledge that the Supreme Court agreed with the findings of the Inner House in the decision below N v SSHD [2013] SLT 1143 at paragraphs 59 and 60 ? nothing is contained in the language analysis report to indicate that the linguist (not an Arabic speaker) or analysts (who held qualifications in medicine, journalism, and social work) had any expertise in the identification of Syrian dialects ? being a native speaker of the language does not confer expertise in the identification of dialects ? AA (Language diagnosis - Use of interpreters) Somalia [2008] UKAIT 00029.
Ground 2 - Error by failing to make findings on the medical report.
The FTT erred at paragraph 34 by failing to make a finding on whether the medical report supported the appellant's position. If it did, that necessarily strengthened the appellant's credibility and ought to have been assessed in the round when assessing whether the appellant was from Syria or not.
Ground 3 - Falling into impermissible speculation.
The FTT erred in law at paragraph 31 ? when inferring that the appellant learnt the knowledge of the city from the internet. There was no evidence to suggest that the appellant could have learnt knowledge from the internet. The questions asked of him were random ? such an inference taints the FTT's decision making ?
Ground 4 - Failure to know the name of the islands.
The FTT erred at paragraph 32 by failing to take account or assess the appellant's low level of education has on his local knowledge and/or his explanations at paragraphs 35 and 36 of his statement ? Had the FTT taken account of these ? the FTT would not have reached the findings that it did.'
6. On 28th June 2016 UT Judge Smith granted permission, observing:
"The central issue ? was whether the appellant is from Syria ? or from Egypt ? Whilst the judge may well have been entitled to give limited weight to what is said in the medical report about the interpreter's view of the appellant's nationality, particularly in the absence of any direct witness statement from that person, I am (just) persuaded that the failure to have regard to this evidence is arguably an error of law.
I am less persuaded by the other grounds but ? I do not limit the grant of permission."
7. Mr Winter submitted along the lines of the grounds, and as follows. The analysts did not have academic expertise and the linguist was not qualified in Arabic. Ground 2 was wide enough to incorporate the point about the medical report identified by the judge granting permission, although he accepted that it had not been a point specifically intended.
8. In a rule 24 response, the respondent argues that the judge gave adequate reasons for finding that the appellant is not from Syria, and was entitled to draw an adverse inference from his failure to obtain another language assessment, and that the judge recorded the conclusions in the medical report, and was entitled to find that they did not assist the appellant. Mrs Pettersen submitted further that the judge's view of the language aspect was made clear at paragraph 30, and the grounds contained no attempt to rebut it. The judge correctly applied the case law. The interpreter used in preparing the medical report was prepared was not there as a linguistic expert and could not substitute for one. This information was no more than a passing observation, reported as third hand hearsay. The respondent had no record of any relevant submission in the First-tier Tribunal but in any event it would not have been proper to take this as a significant point in the appellant's favour. Two of the language analysts had a Syrian background, speaking the dialect of Damascus. The report followed the methodology approved in MN and KY, although prepared by a different organisation. The medical conclusions were simply that the appellant was likely to have suffered trauma consistent with his account; that said nothing about whether or not he came from Syria. Grounds 3 and 4 were disagreements on matters of fact, points on which the judge was entitled to conclude as he did, for the reasons given.
9. In responding, Mr Winter advised that his instructing solicitor, who had been the representative at the hearing in the FtT, said that attention had been directed to the medical report, which was part of the material on which the judge was bound to reach his conclusion. He was not in a position to say that the passage about the interpreter had been subject of any specific submission.
10. I reserved my decision.
11. The linguistic report is based on the results of three analysts, all speakers of Arabic at mother tongue level, two of them from Damascus. They have degrees in medicine from a university in Syria, in journalism from a university in Syria, and in social work from a university in Egypt. The linguist has a master's degree in general linguistics at the University of Stockholm. His languages are Farsi, English and Swedish.
12. The preparation of the report and the qualifications of its respective authors are precisely along the lines of the methodology approved of by the Supreme Court in NM and KY in relation to Sprakab. That is the approach which the judge applied.
13. Paragraph 30 of the decision explains why the judge takes it as a serious point against the appellant that he has declined to counter the linguistic assessment by any similar evidence obtained on his own account. The judge was entitled to find that the appellant's statement that he did not have faith in language analysis was "not a good enough response to the cogent evidence adduced".
14. Injuries consistent with an account of trauma did not necessarily strengthen the appellant's credibility as to his country of origin.
15. Grounds 3 and 4 are only disagreement on factual matters.
16. The matter of the interpreter at the medical interview does not appear to have been the subject of specific submission at the hearing, and the grounds of appeal do not criticise the judge for failing to refer to it.
17. The first paragraph under the heading "Opinion" in the medical report is as follows:
"Mr Hammad gave his history through the aid of an Arabic translator. I have worked with the translator previously and found her to be excellent ? She had not met Mr Hammad previously. Whilst it is not the place for a medical report to comment on Mr Hammad's ethnic background, the translator thought that he was from Syria. She said that he used a number of terms and phrases and slang expressions which he had noted were common amongst individuals from Syria in her line of work. She is from Iraq."
18. Nothing has been said which might persuade me that the judge was bound to pay any specific attention to this passage.
19. For the reasons advanced by the respondent, it is difficult to see that the judge in any event might have made much of this passage in favour of the appellant, while there was strong evidence to contrary effect.
20. The author of the medical report might well find the interpreter excellent, but he can know nothing of her ability to identify dialects. Something must have been said about the issues in the case to prompt the observations.
21. The judge reached conclusions which were open to him and for which he has provided a more than legally adequate explanation. The appellant has not shown the decision to have involved the making of any error on a point of law, such as to require it to be set aside, so it shall stand.
22. No anonymity direction has been requested or made.

1 September 2016
Upper Tribunal Judge Macleman