Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02712/2015

THE IMMIGRATION ACTS

Heard at Newport
Decision & Reasons Promulgated
On 10 January 2017
On 20 January 2017

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

M A
(ANONYMITY DIRECTION MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms N Namani instructed by Yemets Solicitors
For the Respondent: Mr I Richards, Senior Home Office Presenting Officer

DECISION AND REASONS

1. Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) I make an anonymity order. Unless the Upper Tribunal or Court directs otherwise, no report of these proceedings shall directly or indirectly identify the Appellant. This direction applies to both the appellant and to the respondent and a failure to comply with this direction could lead to Contempt of Court proceedings.

Introduction
2. The appellant is a citizen of Georgia who was born on 9 July 1969. He entered the United Kingdom on 26 February 2013 with his wife and two children. He had previously claimed asylum in France on 26 May 2009 but that was refused on appeal on 16 July 2012. The appellant and his family then came to the UK clandestinely.
3. The appellant's wife initially claimed asylum using, as it is now accepted, a false name and falsely claiming to be a Syrian national. Her claim was refused on 15 January 2015. She subsequently withdrew her appeal against that decision on 10 June 2015.
The Appellant's Claim
4. The appellant then claimed asylum on 23 June 2015 with his family as dependants. The appellant claimed to be of the Ezidi religion and from Georgia. He claimed that in April 2009, he and his wife were attacked by a number of men, four of whom were policemen, when they were opening their shop because a business rival or competitor wanted to acquire their sought-after location. The appellant and his wife were taken to hospital where she suffered a miscarriage. The appellant was unconscious and remained hospitalised for twelve days. His wife remained in hospital for fourteen days. The police refused to attend when they were told the family's surname.
5. Subsequently, the Prosecutor's Office and police failed to investigate the matter. The appellant was beaten and detained by the police and only released after a bribe was paid by his wife. They were told that an allegation had been made that they had attacked the policeman who had come to the shop and they were accused of selling contraband.
6. Subsequently, their home was searched and, in the course of the search, a pistol and ammunition were found which the appellant claims was not his and had been "planted" by the police. A warrant was issued for the appellant to attend the police station the next day but he did not do so hiding in a friend's house nearby where he stayed for two days until the family left Georgia on 14 May 2009.
7. They travelled through Europe eventually arriving in France and claimed asylum. Following the refusal in July 2012, the appellant asked his father to enquire whether there were any pending criminal investigations against him. When his father enquired, he was beaten up and hospitalised. The appellant and his family then decided to come to the UK which they did with the aid of an agent who advised them to claim to be Syrian nationals.
8. The appellant remained in contact with his parents and they sent on to the appellant court papers which, it is claimed, showed that on 19 February 2014 the appellant had been prosecuted and sentenced in his absence in Georgia to five years' imprisonment for possession of a firearm and ammunition. The court papers had been given to his neighbours who passed them to his parents.
9. The appellant claims that if he and his family returned to Georgia they were at risk of persecution or serious ill-treatment.
10. On 4 November 2015, the Secretary of State refused the appellant's claim.
The Appeal to the First-tier Tribunal
11. The appellant appealed to the First-tier Tribunal. In a determination sent on 14 June 2016, Judge M M Thomas dismissed the appellant's appeal on all grounds. First, she did not accept that the appellant was of the Ezidi religion. Secondly, in any event, even if he were he had not established that there was a risk of persecution as an Ezidi on return to Georgia. Thirdly, the judge made an adverse credibility finding and rejected the appellant's account of past ill-treatment including that he had been convicted in his absence of a firearms offence.
12. The judge also dismissed the appellant's appeal on humanitarian protection and human rights grounds.
The Appeal to the Upper Tribunal
13. The appellant sought permission to appeal to the Upper Tribunal. Permission was initially refused by the First-tier Tribunal but on 8 August 2016 the Upper Tribunal (UTJ Rintoul) granted the appellant permission to appeal.
14. On 31 August 2016, the Secretary of State filed a rule 24 notice as seeking to uphold the judge's decision.
15. Thus, the appeal came before me.
The Submissions
16. The appellant relies upon essentially five grounds.
17. First, the judge was wrong to make an adverse finding in relation to the appellant's claimed faith without considering the hospital reports which were relevant to his general credibility and his claim of past persecution.
18. Secondly, in considering the documents the judge was wrong to conclude that they were not "authentic". It was no part of the respondent's case that the documents were not genuine.
19. Thirdly, the judge was wrong to infer that the only explanation why the appellant had not submitted in translation a copy of the full asylum decision in France was because what was therein set out differed from his factual account in this appeal.
20. Fourthly, in finding that the appellant was not of the Ezidi faith, the judge did not find persuasive inconsistencies in his evidence identified by the respondent and the judge's reason for not accepting his faith was unsustainable, namely that the evidence he gave to the Tribunal as to his faith was "generic" and "basic".
21. Finally, the judge failed to give adequate reasons for rejecting the appellant's explanation, namely a change in President in Georgia was the reason for the nearly five years delay in prosecuting the appellant for the alleged offence.
22. On behalf of the respondent, Mr Richards accepted that the determination could, perhaps, have been structured differently but, he submitted, the judge had to take the points in some order and she had dealt with every piece of the evidence. Her reasons were adequate and she had clearly, in considering the documentation, had regard to Tanveer Ahmed [2002] Imm AR 318.
23. Mr Richards submitted that the judge had given adequate reasons for finding that the appellant had failed to establish his faith and, in any event, she had found he would not be at risk even if he was Ezidi.
24. Further, the judge was entitled to draw an adverse inference from the fact that the appellant had submitted a number of documents in translation but had not submitted the asylum decision in France.
25. Finally, there was no reliable information to substantiate the appellant's explanation for the delay in his being prosecuted.
Discussion
26. In considering a judge's determination and whether it is legally flawed, it must be read as a whole. It would, as a general rule, be wrong to read it in a compartmentalised and piece-meal fashion. A judge should generally be understood not to have embarked upon drafting a judgement without having well in mind the totally of the matters that he must deal with. Necessarily, however, judges must deal with points and issues in some order. The order in which they do so may well, perhaps usually, not be crucial. What is important is that the judge considers all the evidence relevant to an issue and reaches sustainable findings.
27. Here, the judge accepted (at para 38) that the "sole issue in this case is credibility". There were principally two factual issues. First, had the appellant established his claimed religion? Secondly, had he established the past persecution, including the conviction which he claimed to be the basis for his risk on return? Whether the evidence established a risk on return, if those matters were themselves proved, was a further factual issue but did not turn on the appellant's credibility but essentially upon the background evidence.
28. In this case, the judge first dealt with the appellant's "nationality and ethnicity". In relation to that, she examined the appellant's evidence relevant to his knowledge of the religion at paras 43-46. At para 45, she observed that the information he gave could have been obtained on the internet and was "basic". Then at paras 47-53, the judge considered the expert report of Professor Hewitt which she found to be "unhelpful and unreliable" and which as a consequence, she concluded he should "attach little weight to" (see para 53). Then, at para 54, she considered DVD evidence which she found to be unhelpful, not least because there was no independent interpretation of its contents. Then at paras 55-56, the judge dealt with the evidence concerning the appellant's asylum decision in France. The judge said this:
"55. The Appellant provided for the purposes of this appeal a copy of the decision from his asylum application in France (Document B61-66). The first 2 pages of that decision have been translated. The Appellant stated in evidence that the decision was in total approximately 10 pages setting out the reasons why the asylum application was refused. He stated the reason why translated versions of those remaining pages have not been provided was because it was too expensive. However, his grounds for seeking asylum now are the same grounds as he asserted when he made his asylum application in France.
56. I do not find this explanation credible. The Appellant has had the benefit of legal advice throughout. He will have been aware that in establishing credibility the consistency of the Appellant's evidence is critical. I can only infer that the decision why the Appellant has not obtained a translation of the full asylum decision is because what is set out within it differs in factual account to the facts before this tribunal. There can be no other reason. I make this finding on the basis that the Appellant has obtained translated versions of a number of documents however what could only be considered a key document supporting the consistency of the factual evidence, he has failed to translate."
29. Then, at para 57 the judge turned to what she stated to be the "first issue for determination in this appeal", namely whether the appellant was of the Ezidi religion. At 57-58 she said this:
"57. The first issue for determination in this appeal is whether the Appellant is of Ezidi religion. I have already stated that albeit I do not identify any significant inconsistency in the Appellant's evidence relating to his knowledge of this religion there was, on the contrary, nothing of significance asked relating to it outside of what could easily be accessed on the Internet. The Appellant concedes that he uses the Internet. In fact all the information asked of him can be found within the contents of document L and M in the Respondent's bundle. The Appellant at the asylum interview gave little insight into his practice of his religion however; I would accept he was not asked questions which required him to do so. The only information asked in relation to the practice of his religion related to as to whether he was able to practice it in Georgia. His evidence in summary was not that he could not but that it is difficult to do so.
58. Therefore, reverting to the question as to whether I consider the Appellant is of Ezidi religion. In short, no. I do not accept the truth of the Appellant's evidence in relation to this. The Appellant has demonstrated his complete lack of understanding and knowledge specifically by being unable to identify whether it was a nationality, ethnicity or religion. Throughout this appeal the Appellant has asserted that he is Ezidi nevertheless, no substantive evidence has been produced in support of this. In general his understanding and knowledge of his religion is basic. At hearing the Appellant without prompting sought to demonstrate some further knowledge of Ezidi relevant to religious holidays however, again, what was stated was generic."
30. The judge went on at paras 59-61 to consider the background evidence and in para 61 concluded:
"In summary, even if it was accepted that the appellant was of the Ezidi religion, which it is not, I do not accept that as an Ezidi he would be at risk of persecution on return to Georgia."
31. The appellant's case was not that he was at risk on return to Georgia merely because he was an Ezidi rather he claimed to be at risk because of the events in 2009 and his subsequent conviction (falsely) for a firearms offence which may well have arisen because of his religion.
32. Thus far in the judge's reasoning she has not considered the appellant's account of the events in 2009, nor has she considered the documents such as the hospital reports (said to support what happened in 2009) and the court documents relating to his 2014 conviction.
33. The judge turned to the documents in para 62 of her determination as follows:
"The Appellant has adduced hospital reports in support of the physical injuries he contends he and his wife sustained from beatings when in Georgia and a report regarding injuries he contends his father sustained when he went to enquire about the pending criminal action against the Appellant. Whether these documents are authentic or not is immaterial on the basis of my findings in relation to the Appellant's religion and the risk of persecution on return. Nevertheless on the basis of the credibility findings I have already made and the further findings which I will make when dealing with credibility in relation to paragraph 339L of the Rules and section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 ("the 2004 Act") I am not satisfied that these documents are authentic. I make a similar finding in relation to the document which the Appellant relies upon in relation to his conviction. There is a letter from Professor Hewitt (B38 - Appellant's bundle) as to the authenticity of that document however I attach little weight to his conclusions for the same reasons as previously identified in paragraphs 48 - 53. Professor Hewitt gives no explanation as to his credentials for assessing the authenticity of the document and none are detailed within Appendix 1 of his report. Further, he gives no explanation as to why he considers it an authentic document."
34. There is, in my judgment, two difficulties with the judge's reasoning. First, whilst it is true that the documents are not directly related to the appellant's claimed faith, they are directly relevant to his general credibility as well as the particular events he relied on in 2009 and the conviction in 2014 as the basis of his claim. In my judgment, the judge was wrong to assess the credibility of the appellant's claimed faith in pure isolation (at paras 57-58). Of course, the judge had to consider the evidence directly relevant to his claimed religion but she had to do so in the context of her assessment of the appellant's general credibility including consideration of the documents. Secondly, in considering the documents the judge appears to be not satisfied that they are "genuine". It is difficult to see what else the judge meant when she concluded that they were not "authentic". It was not part of the respondent's case that the documents were not genuine. The burden of proving that would have been on the respondent and it is difficult to see what, if any evidence, before the judge could have justified such a finding.
35. Mr Richards submitted that the judge had not intended to use the words "authentic" to mean "genuine" as was clear from para 63 of the determination where the judge referred to Tanveer Ahmed, the well-known case which requires a judge to determine whether a document is reliable having regard to all the evidence.
36. Paragraph 63 begins with a consideration of aspects of the appellant's evidence and then, in the second half, deals with the documents as follows:
"In summary I do not accept the Appellant's explanation in relation to this conviction. I do not accept that it would have taken nearly 5 years for the Appellant to be prosecuted in relation to this alleged offence. I do not accept his assertion that it is as a result of the change of President in 2013 that the criminal charge was pursued. Further the Appellant has been inconsistent as to the length of the sentence which I consider a fundamental inconsistency. At the time of the asylum interview he indicated that he had been sentenced to 6 years. In the statement in support of his asylum application (document F1 and F2 Respondent's bundle) he again states 6 years (paragraph 13) yet now states it was 5 years. The conviction shows that a 'Lia Gurgenidze' represented him on the date of the hearing. No explanation is given as to why he was represented if he purportedly knew nothing about it. Similarly he states he found out about the conviction as a result of his previous neighbours giving the conviction document to his parents. This is not credible. Why would a notice of conviction be given to the neighbours? I do not accept the truth of the Appellant's evidence on this issue. I am in no doubt that for some reason the Appellant had to leave Georgia otherwise, why would a person uproot his family, leave his business, his home and his extended family. Nevertheless, I do not accept that it was for any of the reasons asserted. Further, having considered the totality of the evidence I even question the dates that the Appellant has given of departure. The Appellant has chosen not to have the French asylum decision translated. As previously stated I can only assume that this is for one reason and that is that there is information within that decision which would impact upon this appeal. Therefore, considering all of the factors as set out above and in accordance with the guidance given in Tanveer Ahmed [2002] UKIAT 00439 which is that it is for an Appellant to show that a document on which he seeks to rely can be relied on, Tanveer Ahmed requires I, the decisionmaker, to consider whether a document is one on which reliance should properly be placed after looking at all the evidence in the round. A failure by the Respondent to establish an allegation of forgery to the appropriate degree of proof on the balance of probabilities does not, of itself, show that the document is reliable. It is still necessary to consider whether reliance can be placed on a document after looking at all of the evidence in the round. Therefore, relying on Tanveer Ahmed it is for the Appellant to show that the document is reliable in the same way as any other piece of evidence relied upon and it is for me to consider whether that document may be relied upon having considered all the evidence in the round. I have concerns in relation to the authenticity of these documents and those concerns are very much triggered as a result of the findings I have made in relation to the identified credibility issues relating to the inconsistencies in the Appellant's evidence. I therefore attach no weight to these documents."
37. Whilst the judge does refer to Tanveer Ahmed and the issue of whether the documents are "reliable", again she referred to her "concerns in relation to the authenticity of these documents" which have been "very much triggered" by her findings in relation to credibility based on inconsistencies in the appellant's evidence. The inconsistencies would appear to be those set out at the beginning of para 63, which relates to the appellant's alleged conviction. To the extent that they might have been treated as a basis for a finding that the court documents are false, it is wholly unclear how they could have led to a finding that the hospital documents were false.
38. The judge turned to the central issue of the appellant's credibility at paras 64-66 where she said this:
"64. In making my decision I have considered paragraph 339L of the Rules which imposes on the Appellant a duty to submit to the Respondent material factors needed to substantiate his asylum claim. I do not intend to set out in full what those listed factors are however; when considering them I do not accept that the Appellant has made a genuine attempt to substantiate his claim. The Appellant came to the UK on 26 February 2013 when an asylum claim was made deliberately in his wife's name and using alias names, Syrian names, to avoid detection principally so that they would not be returned to France. It is not clear from the papers as to when it was discovered that the Appellant and his family were not Syrian nationals however, it would appear to have been sometime after the screening interview on 21 May 2013, as the screening interview records the Appellant's wife as still asserting at that date that they were Syrian nationals. On 30 September 2013 the then solicitors, Harding Mitchell solicitors, wrote to the Mr Richard Walker of the Respondent advising of the Appellant's wife and family's true nationality and identities and the reason for the nondisclosure. On the 25 November 2014 when the Appellant's wife attended her asylum interview she confirmed this position. On that date she asserted that the Appellant was no longer living with her (question 56 - page C11 Respondent's bundle) however, other than that reference there has never been any other reference to the Appellant and his wife splitting up. It was only after that decision was refused that the Appellant then made an asylum application for himself naming his wife and children as his dependents. I do not consider that the Appellant's application was made in a timely fashion. What is clear is that the only reason why the Appellant decided to disclose their true identity at the time of his wife's asylum application was because of the removal direction made for their return to France, which is confirmed in the letter from his solicitors dated 30 September 2013. Further, even after his wife's asylum application was refused they still chose to appeal and even when that appeal was withdrawn the Appellant then waited nearly 6 months before then making his application. The Appellant has not established his general credibility and his evidence, when looked at in the round is implausible based upon background information. On that basis he does not meets the requirements of paragraph 339L.
65. Further, in making a decision I have considered the 2004 Act. Section 8 imposes an obligation on the Appellant to have provided information as soon as possible of material factors required to substantiate an asylum and/or human rights claim. A failure by the Appellant to provide such information may potentially damage his credibility. I do not intend to repeat what I have already set out at paragraph 64 above but for the same reasons section 8 is engaged.
66. There is no need to recite any more of the evidence that has led me to my conclusion in relation to the asylum claim. I have had the benefit of seeing and listening most carefully to the Appellant as he gave evidence. Further, I have compared his oral evidence with his written accounts as given in the screening and asylum interview and also those of his wife as given in her screening and asylum interview in addition to the Appellant's written statement and [the Appellant's wife's] written statements for hearing. I do not find the Appellant's evidence credible."
39. The judge was faced with a number of interwoven factual issues which had to be determined. I have borne in mind that a judge's decision must be read as a whole (see my comments at para 26 above). Nevertheless, the compartmentalised treatment of the issues in the determination has led me to conclude that, in my judgment, the judge has failed properly to consider all the evidence in assessing the truthfulness of the appellant's claim. She has, in my judgment, prematurely determined whether the appellant has established his religion without dealing with it in the context of his credibility in general. Further, in reaching her finding in respect of his religion, the judge failed to consider the documentary evidence and has not clearly differentiated between the assessment of the documents "genuineness" (which was not in issue) and their "reliability" (which was).
40. Further, I accept Ms Namani's submission that the judge was not entitled to reach an adverse inference in respect of the appellant's failure to submit a translated version of his French asylum decision. It is, perhaps, noteworthy that it was the appellant that put these documents into evidence. The appellant's explanation cited by the judge was that it was "too expensive" to translate the document. The appellant's oral evidence was also that he had provided the documents to his solicitors. On the basis of this evidence, it was not, in my judgment, a proper inference that the absence of a translation had only a sinister explanation. It also appears from the renewed grounds drafted by the appellant's Counsel at the First-tier Tribunal hearing that at the outset of the proceedings the absence of a translation was raised and the judge indicated "that in her mind the French decision should have no impact on her decision". The respondent was unrepresented at the hearing and I see no reason to doubt Counsel's statement set out in the grounds. This is an additional troubling aspect of the judge's treatment of the absence of a translated version of the French decision. Clearly, the absence of it did factor into the judge's findings adverse to the appellant.
41. In my judgment, these errors resulted in the judge failing properly to consider overall the appellant's credibility and reach appropriate factual findings in respect of his claimed religion and past persecution. The errors are material. I do not accept Mr Richards' submission that the error in relation to the judge's finding that the appellant was not of the Ezidi religion is immaterial because the judge also found he would not be at risk as such on return. That, of course, was never part of the appellant's claim. His faith was merely a part of the background showing how he had, and would, be treated differently by the authorities and why the events of 2009 had occurred. The finding in relation to his religion is, therefore, a part of his claim even though it is not in itself said to create the risk on return.
42. That, in my judgment, suffices to set aside the judge's determination and her factual findings. I should, however, briefly deal with the appellant's other grounds. The final ground based upon the judge's rejection of his explanation for the delay in prosecuting in between 2009 and 2014 is, in my judgment, not established. As I pointed out at the hearing, the judge's attention had not been drawn to any background evidence to substantiate the appellant's explanation that the change of President in 2013 was significant for minorities such as Ezidis. The only evidence which Ms Namani could identify was in the expert's report referring to "anti-minority nationalism" in August 2008. But, that predated the events in 2009 and could not provide an explanation for a five-year delay based upon the appellant's explanation that the change of President in 2013 made a difference. I would, therefore, reject this ground.
43. Finally, in relation to the judge's treatment of the evidence directly relating to the appellant's religion, as I have already said, the judge's finding cannot stand for the reasons I have given. I would simply add that I have considerable concerns as to the judge's reasoning, having rejected the respondent's reliance on inconsistencies in his knowledge, that the evidence given by the appellant was "generic" and "basic" such that, in itself, it was proper to conclude that the appellant had failed to establish his religion.
44. Of course, these matters will be reconsidered on the remittal of this appeal to the First-tier Tribunal for a fresh hearing.
Notice of Decision

45. Thus, the First-tier Tribunal's decision to dismiss the appellant's appeal involved the making of a material error of law and cannot stand. That decision is set aside.
46. Given the nature and extent of fact-finding, and having regard to para 7.2 of the Senior President's Practice Statement, the appropriate disposal of this appeal is that it is remitted to the First-tier Tribunal for a de novo re-hearing before a judge other than Judge M M Thomas.

Signed

A Grubb
Judge of the Upper Tribunal