Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: PA/02094/2017

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On January 18, 2018
On January 22, 2018

Before

DEPUTY UPPER TRIBUNAL JUDGE ALIS

Between

MR D S M
(ANONYMITY DIRECTION MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Kannagara, Counsel (Direct Access)
For the Respondent: Ms Pal, Senior Home Office Presenting Officer

DECISION AND REASONS
1. I extend the anonymity direction under Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.
2. The appellant is a citizen of Sri Lanka. He entered the United Kingdom on August 9, 2008 as a student. His visa was extended until August 29, 2011. He lodged two applications to remain outside of the Rule which were refused. He was then given leave to remain for post study leave until February 13, 2014. Four applications to remain on EEA grounds were lodged between January 6, 2014 and November 7, 2015 and each application was refused. On August 9, 2016 he was served with removal papers and the following day he claimed asylum.
3. The respondent refused his application on February 3, 2017 under paragraphs 336 and 339M/339F HC 395.
4. The appellant appealed that decision on February 27, 2017 and the appeal came before Judge of the First-tier Tribunal Andonian (hereinafter called the Judge) on August 24, 2017. In a decision promulgated on September 13, 2017 the Judge dismissed his appeal on all grounds.
5. The appellant appealed that decision on September 27, 2017 arguing the Judge had erred. Permission to appeal was given by Judge of the First-tier Tribunal Pooler on November 14, 2017. The respondent filed a Rule 24 response dated December 7, 2017.
6. The case came before me on the above date and the parties were represented as set out above. Having heard submissions I reserved my decision.
SUBMISSIONS
7. Mr Kannagara relied on the grounds of appeal as drafted and submitted the Judge had made a material error in law. He argued the Judge had made up his mind before considering the appellant's statement and oral evidence. He submitted the decision should be set aside and remitted to the First-tier because:
(a) The Judge made an adverse finding on credibility due to the delay in claiming asylum. The appellant gave a credible and plausible explanation for not claiming earlier namely he had been granted leave as a student and a post study worker and he had been seeking leave to remain as an EEA family member. The adverse finding played a major role in the ultimate rejection of his claim.
(b) The Judge failed to consider his explanation about why the appellant and S had a lack of contact. He stated that it was S who contacted him and that it was S who told him to stay away. He had been approached in Colombo by LTTE supporters because he was known to have links to the LTTE through his previous actions. However, the Judge overlooked the appellant's claim that he was not involved in the LTTE and therefore knew little about S or anyone else.
(c) The Judge failed to consider his explanation why S wanted information from him about R.
(d) The Judge unfairly made a finding that it lacked credibility his mother lost all three arrest warrants.
(e) The Judge considered the medical report after he made findings about the appellant's injuries. This was an error in law.
8. Ms Pal adopted the Rule 24 response dated December 7, 2017. She submitted that none of the grounds raised identified an error in law. In particular, she submitted:
(a) The Judge correctly directed himself in respect of the weight to be attached to the delay in claiming asylum. The Judge did not reject his claim because of the delay and it was only in [26] of the decision that he concluded the delay adversely affected his credibility.
(b) The Judge considered the appellant's link to the LTTE from [10] onwards in the decision. The Judge was fully aware of the appellant's claim and set the claim out in detail in the decision. He then made findings that rejected his claimed link to S at [20] and [21] and at [19], [22], 25] and 27 he addressed the issues relating to R. These findings on S and R were open to him.
(c) The Judge considered the appellant's explanation about the lost arrest warrants and he rejected his account which was something open to him.
(d) The Judge considered the appellant's account. He found the account lacked credibility. The medical report accepted there were many reasons causes for the injuries. As the Judge rejected his credibility it mattered little where he summarised the medical evidence.
9. Having heard the submissions I reserved my decision.
ASSESSMENT OF ERROR IN LAW
10. The appellant's protection claim was rejected and it is the Judge's approach to the evidence that forms the basis of the grounds of appeal.
11. The Judge made an adverse finding on credibility under section 8 of the Asylum and Immigration (Treatment of Offenders etc) Act 2004 at [26] in his decision. Mr Kannagara submitted that this finding was wrong in law. The Judge was clearly aware of the appellant's immigration history and was entitled to make the finding he did at [26]. The appellant's last grant of leave ended on February 13, 2014 and whilst he lodged four separate attempts to extend his stay as an EEA family member they were all rejected. Section 8 makes it clear that a person is expected to make his asylum claim at the earliest possible opportunity. This was not done in this case. Even if the appellant felt he could stay without claiming asylum the fact remains that after the refusal of his last EEA application on November 7, 2015 he waited until he was served with removal papers before making his claim. The Judge was entitled to make the finding he did and it is clear it was only one of the factors that led the Judge to reject his claim.
12. The issues relating to the LTTE and S and R are connected. From [10] onwards the Judge considered the evidence and explanations given. The Judge recorded how and when the appellant met S. His evidence was that when he lived in his village he passed information to S. He claimed he was detained but after his release he said that S again contacted him but this time he wanted information about R, a person called who worked in the criminal investigation department. The Judge set out his account of what happened to R and then proceeded to consider the appellant's whole claim. The Judge found the appellant gave inconsistent evidence about S and was unable to tell the Judge much about him. These were factors the Judge held against him.
13. Mr Kannagara argues that the Judge should have attached weight to what he said in his statement but taking the decision as a whole I am satisfied the Judge did engage with the evidence. What he did not do was make the findings sought by Mr Kannagara. If the Judge had not considered the evidence and made no findings then that would be capable of amounting to an error in law but I am satisfied the Judge assessed the evidence as it related to both S and R and reached conclusions open to him. The Judge found the appellant's claim lacked credibility and dealt with both S and R in some detail.
14. Mr Kannagara argued that the Judge erred in his approach to the medical evidence. The medical evidence dwas inconclusive as the doctor accepted the appelalnt's old injuries could have been caused in any number of ways. Ideally, the findings on the medical evidence and how it affected the evidence would have been earlier in the decision but it cannot be argued the Judge has not considered the content of the report against his injuries and the account given. The Judge dealt with the report in some detail between [31] and [32] of the decision.
15. The final issue raised related to the Judge's treatment of the arrest warrants. He dealt with this at [24] and [28] of his decision. Mr Kannagara argued the appellant's explanation that his mother lost them through moving house should have been accepted. The finding at [24] followed other negative findings. The Judge does not have to accept the explanation tendered by the appellant. In this appeal he chose to reject his claims and he gave reasons. Those findings are not perverse and were findings open to the Judge. None of the grounds identify and error in law.
NOTICE OF DECISION
16. The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law. I uphold the Judge's decision.

Signed Date January 18, 2018

Deputy Upper Tribunal Judge Alis

TO THE RESPONDENT
FEE AWARD

No fee award is payable because the appeal has been dismissed.

Signed Date January 18, 2018

Deputy Upper Tribunal Judge Alis