Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02527/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 11th October 2016
On 12th October 2016

Before

UPPER TRIBUNAL JUDGE LINDSLEY

Between

[A R O]
(ANONYMITY ORDER NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr R Toal, instructed by Birnberg Peirce & Partners
For the Respondent: Ms Z Ahmad, Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. The appellant is a citizen of Somalia born on 6th November 1986. He arrived in the UK on 2nd November 1993 accompanied by his mother, when he was six years old. Initially his mother claimed asylum as Kenyan nationals for herself and her son. This application was refused. She then made an application in their correct Somali nationality and they were granted exceptional leave from 21st December 1994 to 28th November 2002, at which point the appellant and his mother were granted indefinite leave to remain. On 20th February 2003 the appellant was convicted of murder and sentenced to serve a minimum term of nine years and four months. A deportation order was made pursuant to s.32(5) of the UK Borders Act 2007. The appellant then appealed against this decision on asylum, humanitarian protection and human rights grounds. The respondent certified the appellant's claim under s.72(2) of the Nationality, Immigration and Asylum Act 2002 on the basis that the appellant posed a danger to the community as someone convicted of a particularly serious offence. His appeal against the decision to deport was dismissed on all grounds (although the s.72 certificate was not upheld) by First-tier Tribunal Judge Chambers in a determination promulgated on the 31st May 2016.
2. Permission to appeal was granted on the basis that it was arguable that the First-tier Tribunal judge had erred in law in failing to make a finding on the oral evidence of Mrs Hodgkinson as to whether the appellant had converted to Christianity. The grant of permission raised the question however as to whether this was a material error given that it was accepted by the First-tier Tribunal that a number of people believed the appellant had converted to Christianity but nevertheless found that this had not taken place.
3. The matter came before me to determine whether the First-tier Tribunal had erred in law.
Submissions - Error of Law
4. The grounds of appeal and submissions on behalf of the appellant are, in summary, as follows.
5. The respondent accepted that if the appellant had genuinely converted to Christianity that he would be at real risk of persecution in Somalia. They key finding of the Tribunal is therefore at paragraph 37 of the decision: that the appellant had not converted to Christianity and would not be perceived as a Christian and therefore would not be persecuted. It is also accepted by the respondent and the First-tier Tribunal that it is possible to have deficient knowledge of Christianity whilst having been a genuine convert, see paragraphs 28 and 29 of the decision.
6. There were a number of sources of evidence which were put forward to the First-tier Tribunal as supporting the appellant having converted to Christianity: the evidence of Peter Egginton a family friend and practising Christian; the evidence of Bishop Dr Joseph Roberts; the evidence of Colin Hudson Chaplain at HMP Mount; the evidence of Harold Afflu who is a minister of religion; and the evidence of Ms Faye Hodgkinson a probation hostel worker. It would appear that the First-tier Tribunal did not take on board that Ms Hodgkinson gave oral evidence, only indicating that there was oral evidence from one source (when in fact both she and Mr Egginton gave oral evidence) at paragraph 21 of the decision and only summarising the evidence of Mr Egginton. It is argued that overlooking this evidence, which assists the appellant on this key issue, was highly significant because she provided evidence from the point of view of someone who is not a minister of religion or a member of a Christian congregation but is someone who knew the appellant for professional reasons as a hostel keyworker who had a background as a police officer and who was tasked with assessing the appellant's character and actions. Her assessment that he is a genuine Christian was capable of being of particular significance therefore.
7. It is also argued that the decision of the First-tier Tribunal is unlawful due to a lack of reasons as to why it was believed the appellant was able to dupe all of the witnesses who supported his contention he is a Christian convert. (It is also clear that the evidence of the Harold Afflu was not just of the appellant being a good worker but that he a Christian.) There needed to be some reasoning as to why the appellant was able to do this in the context of the witnesses, which might go to his ability to deceive or their credulity. Mr Egginton had known the appellant since 2001 and seen him regularly in prison. This was a very long and regular association over 14 years. The appellant clearly had not tried to put forward that he wished to rely upon her Christianity at his Screening Interview, and thus there was no evidence of a consistent thought out plan to deceive witnesses and build such a case. It was clear that the appellant had not successful lied about the murder weapon being brought to the scene by the victim as this was not believed by the jury that convicted him. So whilst the appellant was clearly capable of telling lies, as he did at his criminal trial and later admitted, there was no evidence that he was good at this or had managed to trick others into believing falsehoods. There was no reason in the evidence to think the witnesses were all particularly gullible either.
8. Further it is argued that the conclusion that the appellant is not a credible witness himself is not well or lawfully founded as it relies upon saying he had told two significant untruths: firstly to have seen his father killed in Mogadishu when he was six years old and secondly to have committed the murder with a knife the victim had brought to the scene of the crime. Whilst both of these things were said by the applicant it is said on behalf of the appellant that there is evidence from a forensic psychiatrist, Dr Puri, that the first falsehood could have come about as a false memory given the influence of his mother and her account to the appellant of his father's death. The evidence of Dr Puri was drawn to the attention of the First-tier Tribunal and needed to be addressed by them. Further it had been accepted by the Parole Board that the appellant had admitted in 2013 that he had brought the knife to the murder scene and killed the victim. It is arguable that this behaviour of owning up to his full guilt was to the credit of the appellant's current credibility and thus not against it.
9. Ms Ahmad argued, in summary, that the error in apparently overlooking the evidence of Ms Hodgkinson was not material as the First-tier Tribunal had given a number of reasons for disbelieving the appellant and even if this evidence had been believed then it could not have made a difference to the outcome of the hearing.
10. At the end of the hearing I informed the parties that I found that the First-tier Tribunal had erred in law but that I would put my full reasons for that decision in writing. I also informed the parties that I would preserve the finding that the s.72(2) Nationality, Immigration and Asylum Act 2002 certificate was discharged as no error of law had been pointed to in that discrete issue, but that the rest of the decision was set aside. Both parties felt it appropriate that the matter be remitted to the First-tier Tribunal in Manchester for rehearing as there would need to be a substantial fact-finding hearing to remake the appeal on the refugee claim, and I agreed that this was appropriate in all of the circumstances.
Conclusions - Error of Law
11. It is certain that Mrs Hodgkinson and Mr Egginton did give oral evidence to the First-tier Tribunal, and clear that this is recorded at paragraph 7 of the decision. However it is also clear that by the time that Christianity is considered (paragraphs 18 to 37 of the decision) that Mr Egginton is referred to as the only witness who gave oral evidence (see paragraph 21 of the decision) and absolutely no reference is made to Ms Hodgkinson's evidence of the appellant's conversion or faith. I find that material evidence was not given anxious scrutiny in coming to the conclusion that was reached by the First-tier Tribunal.
12. I am also satisfied that if this evidence had been considered this could have potentially led to a different conclusion on the key issue of whether the appellant had converted to Christianity, in the context of the other evidence that had not satisfied the First-tier Tribunal. This was evidence from a very different type of person with a different role and relationship to the appellant, who might well have been seen as coming at the issue of the appellant's conversion from a more professional and critical angle.
13. It is also correctly argued for the appellant that it is not considered at all by the First-tier Tribunal how the appellant was able to dupe his five witnesses, or why they were particularly credulous, and I consider in the context of there being no evidence that the appellant had successfully managed to convince anyone else of a significant falsehood at any point that this was also a legally erroneous deficiency in the reasoning.
14. I also find that the assessment of the appellant's credibility is legally deficient for lack of consideration of evidence of Dr Puri (at page 47 of the bundle) which raises the possibility that the appellant has a "false memory" regarding his presence when his father was killed through accounts given by his traumatised mother rather than his having told a deliberate falsehood when he wrongly said that this had happened in his asylum interview.
15. Whilst it was open to the First-tier Tribunal to place the evidence from the screening interview and full asylum interviews from 2015, his lack of basic Christian knowledge and his general ability to tell falsehoods (as he did at his criminal trial) in the balance I find that it was a material error on a matter of crucial importance in determination of this asylum claim to have omitted the above matters from scrutiny in reaching a conclusion that the appellant did not face a real risk of persecution for reason of his religion on return to Somalia.
Decision:
1. The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
2. I set aside the decision with the exception of paragraphs 13 to 16 of the decision concerning the discharging of the s.72 certificate.
3. The remaking of this appeal is remitted to the First-tier Tribunal.

Signed: Fiona Lindsley Date: 11th October 2016
Upper Tribunal Judge Lindsley