Tribunal decisions

The decision

St

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02150/2016

THE IMMIGRATION ACTS

At Field House
Decision and Reasons Promulgated
on 23rd December 2016
On 06th January 2017

Before

DEPUTY JUDGE OF THE UPPER TRIBUNAL FARRELLY

Between

MR. M.T
(ANONYMITY DIRECTION MADE)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original Appellant. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.

Representation:
For the Appellant: Mr. D. Sellwood, Counsel, instructed by Duncan Lewis and Co, Solicitors.
For the Respondent: Mr Walker, Home Office Presenting Officer.

DECISION AND REASONS

Introduction

1. The appellant is a national of Egypt born in 2011. He entered the United Kingdom on a visit visa in 2011 and overstayed. In October 2015 he made a claim to protection. This was on the basis he was at risk on return to Egypt for imputed political opinions and was on a list of wanted people. He said that in 2007 he was involved with the Ultra Ahlawy football supporters club. That club was perceived to be in opposition to the government and this brought him to adverse attention. He said that on a number of occasions he was detained by the police who planted drugs on him.

2. The respondent refused his claim in February 2016. It was not accepted he was a member of this football supporters group and reference was made to the lack of corroborative evidence. Reference was also made to his delay in claiming asylum.

3. His appeal was heard by First-tier Judge Moxon in August 2016 and was dismissed. At hearing the appellant had produced various screenshots from a Facebook wherein he was identified by the name of his grandparents. He also produced various photographs of him wearing a team football shirt. The appellant said the material related to events after he arrived in the United Kingdom. He said he could not access the Facebook account he had in Egypt. He also produced letters from his parents stating that he had taken part in demonstrations in Egypt and they advised him to remain in the United Kingdom for his safety. The appellant provided a report from Mr Miles who gave background material on the supporters club.

4. The judge referred to the absence of any corroboration, particularly of his involvement with the supporters club save for the letters from his parents. He described these as not being from an independent source and therefore he gave them little weight. The judge said it was unclear why he could not access his old Facebook account or obtain photographs or other evidence of his claimed involvement in Egypt. The judge referred to a failure to mention the supporters club during screening and described this as a significant omission.

5. The judge also described his evidence having a supporter's membership card as being inconsistent. The judge said at interview he said he was a cardholder and then change this later to stating it was an identification card. The judge also referred to his account of being released by the police after a short period and found this to be inconsistent with the claim they planted evidence upon him so he could be imprisoned.

6. The judge concluded by finding the appellant was not a member of the football supporters group and what he knew about it was something he could have learnt.

The Upper Tribunal

7. Permission to appeal was granted on the basis it was arguable the First-tier Tribunal erred in law by, amongst other things, requiring corroboration of his involvement with the supporters club and in dismissing the evidence produced from his parents.

8. At hearing, Mr Sellwood advised that he had appeared for the appellant in the First-tier Tribunal. He expanded upon the reasons set out in the leave application. He applied under rule 15 (2)(A) of the Procedural Rules to introduce evidence to support the appellant's claim that his Facebook account was blocked and so he could not access the earlier material. Mr Walker did not object.

9. Mr Sellwood referred me to paragraphs 42 and 43 of the decision and said that the appellant had not been invited to comment. Furthermore, there was no requirement for corroboration. The appellant had also produced photographs of him wearing a club T-shirt from when he arrived in 2011 and submitted it was wrong to the judge to dismiss this evidence as having developed over time to bolster his claim. There also were two photographs of him in Egypt wearing the football team T-shirt.

10. It was argued that the judge was wrong to dismiss his parent's letters outright because of the source and that no consideration had been given to the content.

11. He also argued that it was unfair to comment adversely on the fact the appellant at screening did not mention the supporters club given that screening is to establish travel and personal details rather than the substantive claim.

12. He pointed out that the appellant's evidence was he secured his release within a short period through the payment of bribes. The shortness of his detention was not a factor to be held against him.

13. The appellant had given an explanation for not claiming asylum earlier, namely, he had hoped to return to his home country and did not want to be seen as having claimed asylum. It was submitted that the judge dismissed this out of hand.

14. In response, Mr Walker referred to paragraph 48 where the judge dealt with the appellant's delay in claiming protection. Part of the appellant's explanation for not claiming was that he was homeless and had no financial support from his parents. I was referred to the letter from the appellant's father where it was stated he had been caring for his wife who became unwell in August 2015 and so stopped sending the appellant money. It was therefore factually inaccurate for the judge to state this claim was not corroborated in the letters from his parents.

15. Mr Walker conceded there was some merit in the submission that the judge had not properly considered the letters provided by the appellant's parents. He also accepted the evidence introduced about the difficulties for the appellant in gaining access to his old Facebook account. However, this evidence was not before the First-tier Tribunal judge. He also accepted that screening is not meant to involve in-depth questioning about the underlying claim.

Error of law.

16. I find the judge fell into error in suggesting a need for corroborative evidence beyond the considerations in paragraph 339L.

17. The judge also failed to give adequate reasons for rejecting the evidence the appellant did submit and his explanation for not producing evidence. This included his account of his Facebook account being locked and the way the photographs of him wearing a supporter's shirt shortly after arrival in the United Kingdom where dealt with.

18. The consideration of the letters from the appellant's parents is inadequate; with the impression given that they were dismissed out of hand solely because of the relationship.

19. The judge also fell into error in paragraph 45 in describing as a significant omission the appellant's failure to refer to the support group at his screening. Part 4 of the screening requires an applicant to briefly explain all the reasons why they cannot return, which the appellant gave, without going into detail. In summary, it was open to the judge to decide what weight to give to the evidence and the delay but adequate reasons had to be given.

Decision

The decision of First tier Judge Moxon dismissing the appellant's appeal materially errs in law. Consequently it cannot stand.

All parties are in agreement that if an error of law is found the
matter should be remitted for a de novo hearing before the first-tier Tribunal which I so direct.

Deputy Upper Tribunal Judge Farrelly.

Fee Order

No fee order is applicable

Deputy Upper Tribunal Judge Farrelly.

Directions

1. Relist before the First-tier Tribunal for a de novo hearing, excluding First-tier Judge Moxon.The appellant should appreciate the fact that the adverse decision has been set aside does not imply he will succeed at the rehearing. It remains for him to establish his claim.

2. The appellant's representatives are to provide an appeal bundle containing an index of the evidence relied upon immediately. Translations of all documents to be used that are not in English are to be provided.

3. The appellant's representatives are to advise of any interpreter required.

Deputy Upper Tribunal Judge Farrelly.