Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01913/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 14 March 2017
On 19 April 2017

Before

UPPER TRIBUNAL JUDGE PLIMMER

Between

TB
anonymity direction made
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Tetty, Counsel
For the Respondent: Mr Diwnycz, Senior Home Office Presenting Officer

DECISION AND REASONS

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI2008/269) an Anonymity Order is made. Unless the Upper Tribunal or Court orders otherwise, no report of any proceedings or any form of publication thereof shall directly or indirectly identify the original Appellant. This prohibition applies to, amongst others, all parties.

1. The appellant has appealed against a decision of First-tier Tribunal Judge Cruthers dated 11 August 2016, in which he dismissed his appeal against a decision dated 6 October 2015 to refuse to grant him asylum or humanitarian protection.

Summary of asylum claim

2. The appellant, a 50-year-old male citizen of Eritrea, fears that he will be persecuted upon return to Eritrea as a person who escaped imprisonment during the course of his military service in October 2014. In addition, and in any event the appellant also fears persecution upon return to Eritrea for reasons relating to his claimed illegal departure from the country.

First-tier Tribunal decision

3. The First-tier Tribunal directed itself to the relevant background evidence and country guidance applicable at the time. The First-tier Tribunal accepted limited aspects of the appellant’s account [36 and 37] before rejecting the majority of it [38 onwards], on the basis that the appellant’s evidence was “very unreliable”.

Grounds of appeal to the Upper Tribunal

4. In wide ranging grounds of appeal the appellant appealed against the decision of the First-tier Tribunal. When granting permission to appeal in a decision dated 19 October 2016, Upper Tribunal Judge Gill observed that whilst all the grounds are not arguable, some are, but all the grounds may be argued.

Hearing

5. At the hearing before me Mr Tetty relied upon his grounds of appeal and Mr Diwnycz relied upon a rule 24 notice. After hearing from both representatives, I reserved my decision, which I now provide with reasons.

Error of law discussion

6. I now turn to consider each ground of appeal argued before me. The written grounds of appeal are regrettably not numbered. I have however addressed each relevant paragraph in the grounds of appeal below.

S

7. The grounds criticise the First-tier Tribunal’s approach to an earlier First-tier Tribunal decision dated 25 April 2016 allowing the appeal of the appellant’s son, S (“the S decision”), in two ways – see paragraph 8 of the grounds of appeal.

8. The grounds first assert, without any attempt to place reliance upon authority, that the First-tier Tribunal should not have made findings based upon another First-tier Tribunal decision involving a family member, particularly where the First-tier Tribunal did not have all the relevant evidence that was before the other Tribunal.

9. It appears that the respondent’s representative before the First-tier Tribunal placed reliance upon S’s asylum screening interview [19] and the S decision on the day of the hearing [20]. There was no objection to this by the appellant (who was represented by Mr Tetty before the First-tier Tribunal) and there was no application for an adjournment, in order to obtain further evidence relevant to the S decision or to provide further evidence addressing inconsistencies that emerged from it.

10. At the hearing before me both representatives accepted that the First-tier Tribunal was entitled to admit and take into account the S decision in accordance with the principles set out in AA (Somalia) v SSHD [2007] EWCA Civ 1040. In light of this, Mr Tetty focused his criticism upon the second point made in the grounds of appeal at paragraph 8, to which I now turn.

11. Mr Tetty argued that the First-tier Tribunal made a factual mistake in finding that there was an irreconcilable inconsistency between the evidence recorded in the S decision and the evidence advanced by the appellant before it. In my judgment, the appellant has not been able to establish a mistake of fact that materially influenced the credibility assessment.

12. The appellant gave evidence at his hearing that he left Eritrea before S did [41]. It is important to note that it was not the other way around. S did not claim that he left before his father, quite the opposite, he said his father left Eritrea when he was 10. The appellant also claimed that he was recalled to the army in 1998 but was arrested and imprisoned in 2013 (Q106, 117, 118) before escaping prison on 19 October 2014 (Q 168-169), and he left Eritrea by foot illegally on 23/24 October 2014, when he entered Sudan (Q195). The relevant dates are clearly particularised in the screening interview dated 4 July 2015 at 3.5: arrested on 2 April 2013 and held in detention until 19 October 2014. These two dates are entirely consistent with the specific dates contained in the witness statement before the First-tier Tribunal dated 27 April 2016.

13. By contrast, S claimed that he left Eritrea illegally in December 2013, and this was accepted by the respondent and the First-tier Tribunal who allowed his appeal – see [9, 14 and 16] of the S decision. That means that S left Eritrea before his father claimed to have left in October 2014. The First-tier Tribunal was entitled to make this finding of fact and to draw adverse inferences from the appellant’s failure to provide a coherent explanation for the inconsistency [41].

14. The First-tier Tribunal was also entitled to draw adverse inferences from the appellant’s evasive evidence during re-examination [44]. Paragraph 9 of the grounds of appeal criticise the First-tier Tribunal’s failure to provide specific examples of the appellant being evasive. The grounds do not acknowledge that the First-tier Tribunal provided a specific example of the appellant being evasive – his explanation for why he was arrested in April 2013 at [47]. When the decision is read as a whole, the First-tier Tribunal has adequately reasoned its credibility findings. There was no obligation to set out the appellant’s evidence in full in order to make the point that the appellant was evasive and unable to clearly explain straightforward matters.

15. In addition, the S decision clearly records at [6] that his father left Eritrea when he (S) was 10 i.e. around 2010, and they met again briefly in France, en route to the UK. When the decision is read as a whole, the First-tier Tribunal was entitled to draw adverse inferences from this further inconsistency and to find that the appellant left Eritrea many years before the claimed October 2014 date. The First-tier Tribunal was entitled to find that the “great weight of the evidence” pointed to the appellant having left Eritrea several years earlier than 2014 [38] for the comprehensive reasons provided at [41-44]. The contrary submission at paragraph 6 of the grounds is without merit.

16. Mr Tetty submitted that there was no material inconsistency because on any analysis the appellant was detained in April 2013, and therefore as far as S was concerned his father had ‘left’ Eritrea before him. That means when S left Eritrea the appellant was already in detention and had therefore ‘left’. This reasoning is difficult to follow. In any event the First-tier Tribunal considered Mr Tetty’s submission and was entitled to reject it. Two important inconsistencies remained unexplained before the First-tier Tribunal: S said that he left Eritrea in December 2013 and that his father left years before that when he was 10 years old. In contrast, the appellant gave evidence that he left Eritrea in October 2014 and before Solomon left Eritrea.

17. In the circumstances, the First-tier Tribunal was entitled to draw adverse inferences from the inconsistencies between the appellant’s account regarding his date of departure from Eritrea and the evidence provided by S in support of his own appeal.

Other grounds of appeal

18. The submission at paragraph 7 of the grounds that the First-tier Tribunal erred in law in requiring corroboration in an asylum claim [40] is without any merit. In my judgment, the First-tier Tribunal was entitled to comment that it was surprising that S was not asked to provide any evidence in support of the appellant’s appeal [40]. It is noteworthy that the S decision was promulgated in April 2016 after a hearing on 18 March 2016. The appellant’s hearing took place very shortly after this on 12 May 2016.

19. The First-tier Tribunal was also entitled to find the appellant’s evidence that he had did not discuss with S obvious areas of interest in relation to what happened after he left Eritrea, “striking” [41]. Contrary to the submission at paragraph 10 of the grounds, the First-tier Tribunal has not “substituted reasoning for those of others”. Rather the First-tier Tribunal has drawn adverse inferences from the appellant’s claimed failure to elicit basic information that would have been of obvious interest to him, over and above the welfare of his family.

20. Paragraph 12 of the grounds submits that the First-tier Tribunal only accepted the appellant’s account of having served in the Eritrean military during the war of independence in the 1990s “as it supports...[the] ultimate decision that [the] appellant could be returned to Eritrea without ill-treatment”. The grounds point out that the First-tier Tribunal gave no explanation for accepting this aspect of the appellant’s account and rejecting much of the rest of it.

21. This is not a ground that was pursued during the course of Mr Tetty’s oral submissions. The First-tier Tribunal was entitled to accept part of the appellant’s account [36-37] but to reject the core of his account [38], having properly directed itself to the correct approach to credibility in asylum cases at [16, 26-27, 39]. The First-tier Tribunal was entitled to accept at [45], the respondent’s submission that the appellant did not adequately explain why he was not exempted from military service, given his claim that he was a former freedom fighter.

Prospective risk

22. The First-tier Tribunal has adequately reasoned why its credibility findings are such that it did not accept that the appellant left Eritrea illegally. At [50] the First-tier Tribunal repeats its earlier finding that the appellant left Eritrea well before his claimed arrest in April 2013. The grounds submit that the First-tier Tribunal did not fully engage with the background material supporting the appellant’s claim to have left Eritrea illegally. The First-tier Tribunal set out the relevant background evidence as contained in the country guidance decisions and other case law in detail at [30-34]. The First-tier Tribunal expressly acknowledged that it was difficult to fit the appellant into one of the “legal exiters” categories referred to in MA (Eritrea) v SSHD [2014] EWCA Civ 1608 [51]. Notwithstanding this, the First-tier Tribunal was entitled to find that the appellant’s credibility in relation to material matters relevant to his departure from Eritrea was so damaged, that there was no reasonable degree of likelihood of him having left Eritrea illegally.

23. The First-tier Tribunal was entitled to make the finding, consistent with the reasoning in MA (Eritrea), that the appellant was not someone who must have left illegally whatever the facts [50].

Decision

24. The decision of the First-tier Tribunal did not involve the making of a material error of law and I do not set it aside.

Signed:

Ms M. Plimmer
Judge of the Upper Tribunal

Date:
18 April 2017