Tribunal decisions

The decision

IAC-AH-SAR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02617/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 2 March 2017
On 8 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE HILL QC

Between

S M F K
(anonymity direction MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr M Murphy, Counsel instructed by Nag Law Solicitors
For the Respondent: Mr J Parkinson, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal from the decision of First-tier Tribunal Judge Turquet which was promulgated on 26 September 2016. The appellant is a citizen of Sri Lanka who was born on 16 December 1988 and lived in the United Kingdom for some while on a student visa prior to making a claim for asylum. The substance of the decision comprised a review of the evidence relied upon by the appellant in support of her asylum, humanitarian protection and human rights claims. The judge dismissed the appeal on all three grounds.

2. The subsequent grounds of appeal were settled by Counsel who had acted for the appellant in the First-tier Tribunal in fairly general terms. Permission was granted by Upper Tribunal Judge Plimmer on a rather narrower basis. Upper Tribunal Judge Plimmer, in giving permission on 23 January 2017, stated the following:

“1. It is arguable that the First-tier Tribunal has erred in law in drawing adverse inferences from omissions at the screening interview when these are explained and rectified shortly after the interview. It is also arguable that the First-tier Tribunal has required the appellant to corroborate her claim without justification.

2. There are many other reasons provided by the First-tier Tribunal for the adverse credibility findings but the grounds of appeal are just arguable”. (emphasis added)

3. Mr Michael Murphy acted for the appellant this morning and accepted the narrow basis upon which permission to appeal had been granted but also having very recently come into this case sought to argue two additional grounds reliance on which he says the decision below should be set aside.

4. I propose to deal first with the substantive ground on which Judge Plimmer gave permission, before returning to the additional matters raised by Mr Murphy. This ground can be shortly, namely that the judge made an adverse credibility finding on an insecure or porous basis. In that respect I need refer to paragraphs [42] and [43] of the First-tier Tribunal decision:

“42. In her asylum interview the appellant said that her husband had been arrested and was in prison and when asked why gave an account of them making a complaint against the police in respect of them taking the LTTE girl from the North. I note that she described Meenachi as the LTTE girl throughout the interview as the LTTE girl but then said she did not know if she was an LTTE member. If the appellant had been arrested and detained because of her connection to an LTTE person I find it reasonable to expect her to have said so at the earliest opportunity especially as all their problems in Sri Lanka with the authorities were related to Meenachi being detained and the attempts of the appellant and husband to find out what happened leading to their arrests. ... I find [the appellant’s] failure to mention her involvement with an LTTE girl, her subsequent arrest and leaving Sri Lanka whilst subject to reporting restrictions, which are now at the core of her claimed fear on return, damage her credibility.

43. The solicitor’s letter referred to the appellant suffering torture in detention. This had not been mentioned by the appellant in her screening interview. It was not mentioned in her asylum interview”.

5. Mr Murphy has taken me in some detail to the documentation which was before the First-tier Tribunal. In the screening interview of 16 October 2015 (page B1 et seq of the Home Office bundle before the First-tier Tribunal) specifically section headed Initial Contact and Asylum Registration Form. Part 1 deals with Personal Details and Identity. Those matters are uncontroversial. Part 2 deals with Health/Special Needs and the relevant parts of the form are blank. Part 3 deals with Travel and Third Country, and here similarly the response boxes are also blank. Part 4 covers Basis of Asylum Claim where the responses are again blank. Part 5 deals with Criminality and Security. There, questions have perfunctory answers of “no” at 32, 33 and 34, with a slightly more expansive answer at 35 before reverting to “no” at 36, 37 and 38.

6. Next in time comes a letter from the appellant’s solicitors, Nag Law. That letter is dated 20 October. So far as it is material, the letter reads as follows:

“We refer to the abovementioned and forward herewith the duly completed One-Stop Notice/Statement of Additional Grounds.

On perusing the screening interview records we note with concern that Part 2, 3 and 4 have not been completed. More worryingly, the response given under section 5 has been simply recorded as No. Then again section 7 has not been recorded.

Please note that this is quite a serious asylum claim.

We will therefore request you to read the SCR along with the information given in the One-Stop Notice when deciding the asylum claim”.

The letter then sets out a number of “important issues” which the solicitors say ought properly to be considered in disposal of the asylum claim.

7. Thereafter, at page D7 et seq of the Bundle is the subsequent interview record. In answer to question 3 (which reads “Are you happy with how your screening interview went?”) the answer states “There were some mistakes made and my solicitor corrected them and sent it back to the Home Office. This was done within ten days of the SCR interview”.

8. The argument raised in the grounds and pursued by Mr Murphy is that there is a fundamental flaw in this element of the case. He places reliance on the fact that the boxes concerned are completely blank. He says the fact that they have not been completed gives rise to serious questions. He makes the point that they do not have the response “no” or “no comment” but they are blank.

9. Mr Murphy suggests that there may be a number of reasons for this. It may have been that the matter was not investigated; or it may be that the response was not reported. He seemed at one stage to be raising a positive case that relevant material was put before the officer during the course of that screening interview and not recorded on the form. As far as I was aware there is no material before me to suggest that such a positive case can be made out on the documentation. There is no witness statement suggesting that matters were raised and not recorded, so this is not a matter which can properly be pursued.

10. In paragraphs [42] and [43], the judge has done no more than accurately set out the narrative in how information was conveyed from the appellant to the Home Office. The judge was perfectly entitled to say that a failure to mention matters would “damage her credibility”. Issues of credibility and issues of weight are undoubtedly matters for a First-tier Tribunal to take into account.

11. The judge here has delivered a very careful and detailed determination. The appellant was represented by experienced immigration Counsel and in the circumstances I can see no merit in the suggestion that there is a material error of law in this regard. As to materiality, although it is unnecessary to refer to each and every incidence where credibility is addressed, the judge has done so very fully. One needs only look at the cumulative effect of those findings to conclude that, even if (contrary to my primary finding) there were some error by the judge, it was not material to the outcome due to the force of the other credibility issues. This appeal cannot be allowed on the single ground upon which the judge gave permission.

12. The further matters to which I now turn relate to fresh arguments pursued by Mr Murphy before me which were not incorporated in the grounds. I have every sympathy for industrious and competent counsel who come into appeals late and apply their mind to them. It is too late to raise the additional matters not comprised in the grounds and in relation to which permission to appeal has not been granted.

13. The points, however, were developed by Mr Murphy on a without prejudice since without hearing argument, I could not determine whether to grant permission or not. To the extent that I may be found to be in error in shutting the door on this proposed ground of appeal, I deal very briefly with how I would have determined the matter had I been of the view that the ground was properly raised.

14. Mr Murphy’s argument centred on paragraph 45 of the determination which reads as follows:

“The appellant’s asylum interview was internally inconsistent in respect of the date of her arrest and the date of her husband’s arrest. At question 28 she said she was arrested on 28.1.2011. Her husband had been arrested in the evening and given her details and she was arrested the following morning. This would indicate that her husband was arrested on 27.1.2011. At question 70 she stated that her husband was arrested in the first week of February in the evening and she was arrested the next day. [The appellant] has provided a letter purporting to come from A Gangatharan, a human rights lawyer. He stated that he confirmed that he was instructed by the appellant’s father

‘on the very day she was arrested by Negombo police. According to my records, Sachira was detained on 29 January 2011. (This is inconsistent with the appellant’s accounts that she was arrested on the 28th or the first week in February). Her husband Mohamed Mohideen was detained on the previous day and he was held at the Negombo police station. I attended the police station around 7.30 but by then Sachira had been released, however her husband was not released until 31 January 2011. Both were subjected to reporting conditions’”.

15. Mr Murphy took me to the substantive interview record and to question 28 in particular which reads “When were you arrested?” The answer reads as follows “28/01/2011 my husband was arrested in the evening from his house which was on the main road and he has given my details and I was arrested the following morning”.

16. Then I was taken to the respective answers to questions 69 and 70 which read as follows:

“69. What happened then?”

Answer: “While we were waiting the police arrested my husband”.

70. When was this?

Answer: First week of February 2011 in the evening time”.

17. I heard detailed submissions from both Mr Murphy and Mr Parkinson as to what precisely was meant by the answer to question 28. It may be that there is some ambiguity in the reply, in particular the absence of a full stop between the date and the following text. Nonetheless, the judge has made clear from paragraph [45] of her determination her reading of the document in the context of having heard evidence from the appellant and otherwise. She read that document as stating the date of the arrest as 28 January 2011. What then followed was explanatory text.

18. The crucial element of paragraph [49] was the patent inconsistency between the answer to paragraph 28 (giving a date at sometime in January) and the answer to paragraph 70 (giving a date sometime in February). This was at the heart of the inconsistency which the judge found caused her to question the evidence of the appellant. I do not accept Mr Murphy’s submission that the impugning of the solicitor’s letter, which he says is contained in paragraph [46] of the determination is a matter about which complaint can be made in this Upper Tribunal. The judge concluded at the end of paragraph 46 as follows “I place little weight on it in respect of the appellant being arrested and released on reporting conditions”.

19. Issues of weight and credibility are entirely for the First-tier Tribunal Judge to decide. In all of those circumstances, even had I been minded to grant permission to Mr Murphy to pursue the ground that the First-tier Tribunal decision was irrational, I would have rejected it. The relevant section of the decision amounted to no more than a fair and accurate recitation of the historic narrative of the case. There was no misdirection for the reasons which I have outlined.

20. In reviewing the decisions of First-tier Tribunal judges, one must not only look at the specific points in isolation but the holistic effect of the determination overall. This is a very detailed decision where the judge has made findings based upon the evidence which she received and assessed. I do not consider there to be anything in the submissions that I have heard which undermines any of those credibility findings. This determination is soundly made and not one which is amenable to be set aside. There is no material error of law

21. In all the circumstances the appeal is dismissed.

Notice of Decision

Appeal dismissed and decision of First-tier Tribunal affirmed

No anonymity direction is made.

Signed Mark Hill Date 7 March 2017

Deputy Upper Tribunal Judge Hill QC