Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03476/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 8th February 2017
On 28th February 2018

Before

DEPUTY UPPER TRIBUNAL JUDGE GRIMES

Between

mr ma
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms C Fielden of Counsel instructed by Leonard Cannings Solicitors
For the Respondent: Mr S Kotas, Home Office Presenting Officer

DECISION AND REASONS

Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
The First-tier Tribunal made an order pursuant to rule 13 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. We continue that order. Unless and until a Tribunal or court directs otherwise, the Appellants are granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

1. In a decision dated 23rd November 2016 I set aside the decision of the First-tier Tribunal in relation to the Appellant’s appeal against the Respondent’s decision of 23rd November 2015 to refuse his application for asylum in the UK. That decision is appended hereto.
2. At the resumed hearing on 8th February 2017 Ms Fielden renewed the application made by the Appellant's solicitors on 7th February for an adjournment of the hearing on the basis that they had been unable to identify an appropriate expert to produce a country report in relation to the Appellant’s risk on return. She submitted that the Cameroon expert listed on the Electronic Immigration Network had been held in previous cases to be unreliable and that the representatives had contacted the School of Oriental and African Studies where there were six Cameroonian experts listed but, despite contacting all six experts on several occasions, only one responded stating that he is currently on field work and is not able to access emails and that no other responses had been obtained. She was therefore unable to identify any expert who could provide a report in relation to this appeal nor could she give any timeframe within which an expert’s report could be obtained.
3. Mr Kotas strongly opposed the application for an adjournment on the basis that the Appellant had ample opportunity to identify and instruct an expert and that there was nothing on the horizon in relation to a potential expert report. Further, in my error of law decision of 23rd November 2016, the parties had been directed to serve all documentary evidence upon which it was intended to rely at the resumed hearing and no further documentary evidence had been obtained or submitted on behalf of the Appellant.
4. I considered that the Appellant and his representatives had had ample opportunity to obtain any further evidence which went to the issue of risk on return and had failed to do so. Given that the Appellant had had sufficient time and there was no clear indication as to when an expert report would be obtained, I refused the adjournment. Ms Fielden had drawn up a handwritten witness statement by the Appellant just prior to the hearing and I gave Mr Kotas an opportunity to read this and resumed the hearing. I heard oral evidence from the Appellant and submissions from Mr Kotas and Ms Fielden.
5. In his oral evidence the Appellant confirmed the content of his witness statement made on the date of the hearing. In that witness statement he said that he feels very strongly that he would have to stand up against corruption if returned to Cameroon, particularly as he has experienced the lack of corruption in the UK. He said that in order to earn a living in Cameroon he would again have to set up some kind of small business because he did not believe that he would be able to get a job at this stage and, even if he was able to obtain employment, this would include paying bribes throughout the process. He submitted that he would be unable to do so as a result of which he would end up not being employed which would leave him in the position where he would have to set up a business, most likely like the last one, when he imported and sold clothes. He said that there is corruption everywhere in business and if he imported clothes as he had previously done, he would again encounter corrupt custom officials where he would be asked again to pay bribes. He would also encounter tax officials and that a normal part of their conducting business was to seek the payment of bribes. He said that, not only would he not want to pay any bribes to tax or custom officials or any other officials, but he would also want to complain and protest about this as he did before when in Cameroon. He said that, because he was tortured previously for standing up against corruption after he organised the group Fairtrade Youths, some people would expect him to keep a low profile as to be safe. However he said that, as a result of having been arrested and tortured in the past, he is even angrier about the terrible unfairness of it all. He said that somebody just has to speak out and protest and do whatever they can to stop corrupt practices in the Cameroon. He acknowledged that this may lead to him being arrested and ill-treated again and that that would not mean that corruption would be diminished but his conscience would be clear. He said the only area he actually has experience in is as a small business trading clothes and it is therefore highly likely that he would need to set up another protest group with other traders to defend themselves against corrupt officialdom. He said he does not have any doubt that he would be arrested and ill-treated again and history would repeat itself. He said that he believes that the situation in Cameroon is deteriorating, that there are all kinds of protests against corruption and that there is a climate in which protestors are harshly punished. He said that he is sincere in his intention not to tolerate corrupt practices in Cameroon any more and that there is a climate in which protestors are harshly punished.
6. In cross-examination the Appellant said that his mother and two sisters are still in Cameroon. His mother is retired and living on a pension. His sister is a University lecturer and his other sister works for an NGO called Plan International. He said that he had undertaken a Cima course in the UK but that his leave was curtailed in January 2015 and he has not undertaken any work or study since then. He said that he has written to the British High Commission in Cameroon and to Amnesty International about the issues of corruption and brutality in Cameroon. When asked why he believed it was unlikely he would get employment in Cameroon given his educational background and that of his family, he said that unemployment in Cameroon is very high, he is from the English speaking part of the country and it is unlikely for him to be employed. He said that his brother’s clothing business that he had been running in Cameroon had been closed down when he was there and all of the goods were confiscated. He said that if he was returned to Cameroon he would have to go back to selling clothes. He said that he had been mistreated by local officials whilst in Cameroon but that when he went to Yaounde which is 400 kilometres away from Bamenda where he was living, he was arrested there because the officials saw his name.
7. He said that if he were returned to Cameroon now he would protest if he faced corruption and that it is very likely that he would face corruption. He was asked if he would protest in relation to historic corruption if nothing more came his way but he said that based on what he had seen with friends and family he would be upset and would not want to be quiet about it. When asked if it would only be if further problems came his way he said it was not just about him, that he was doing it for the benefit of his generation. He said he knows that if he goes back he would be faced with corruption, for example he believes that he would be asked for a bribe if he wanted to purchase a fiscal stamp to set up a business or if he wanted to get a national ID card and that he would speak out if he faced any corruption. He said he could do this by setting up a group. He believes that if he is looking for a source of income he would have to face officials who are corrupt. He said that his family had been faced with problems with bribes but they had not protested because it was accepted in Cameroon by most people it was a way of life that we had to deal with corrupt officials.
8. In re-examination the Appellant said that if he was returned to Cameroon and faced the same problems as before he would feel that other traders should not have to go through corruption and he believes that if he stood up to it it would give other people to courage to join him in setting up a group to oppose corruption.
9. In answer to questions I put to him the Appellant said that he has two brothers, one is in Sweden and one in the USA. He would hope that if he were returned to Cameroon his brother who set up the business previously would do so again. He said that his sister who is a University lecturer had to pay bribes to get her exam results. He said that he worked in the UK as a kitchen porter before his asylum claim was determined but he has not worked since claiming asylum he is on NASS support.
10. Mr Kotas relied on the error of law decision and in particular the fact that all of the findings of fact had been preserved. He submitted that the Appellant’s case has now shifted. The Appellant had not mentioned in his first witness statement that he wanted to go back and make a political point and that first arose in cross-examination in the First-tier Tribunal. He referred to paragraphs 46, 76 and 77 of the First-tier Tribunal Judge’s decision and the judge’s finding at paragraph 75 that the Appellant’s involvement with the group was pertinent to his circumstances at that particular time. He submitted that the Appellant’s case has shifted today and that he now says that he is going to be a political activist and in his submission the Appellant has seized upon the error of law decision. He submitted that the Appellant was the subject of corruption but that was a product of the circumstances at that particular time. He submitted that the Appellant says that he would protest if returned but that would be only if he is faced with further corruption and bribery again, in his submission this was speculation and conjecture on the part of the Appellant and therefore not objectively well-founded. He submitted that, despite the latest witness statement, the Appellant had not shown that he has developed any political beliefs in the UK. Mr Kotas accepted that the Appellant had written to Amnesty International and the British High Commission but submitted that this does not mean that if he is returned he would face corruption and would protest. The only objective evidence is that contained in the Appellant’s bundle before the First-tier Tribunal. He submitted that the Appellant’s plan to set up a business again is hypothetical and that there is no objective evidence in relation to the Appellant’s assertion that he would have the lack of opportunities to gain employment. He submitted that the Appellant is not subject to any real risk of persecution on return today.
11. Ms Fielden submitted that the First-tier Tribunal had not rejected the Appellant’s claim that if he went back he would stand up against corruption and he was found a credible witness by that judge. She submitted that there is nothing wrong with the Appellant saying that he would stand up against corruption and, if he is credible, it should be accepted that that is what he will do. She accepted that it is not likely that the Appellant will set up that particular group of traders again. She submitted that the Appellant is not now saying that he is a political activist, he is simply saying that if he goes back to Cameroon he will have to earn a living and, despite the fact that he is from an educated family, he did not have a good job in the past, he ran a business buying and selling clothes, and if he goes back he would be in a position where he is going back into the same kind of business. The Appellant is saying that he is an ordinary person who on return to Cameroon will have to earn a living in the most obvious way, to trade in clothes again. This involved corruption by tax and customs officials and treatment by those officials prompted him to set up the group. If he set up another business he would still have to deal with the tax officials and is likely to come across the same problems as he did before and as before he would not want to stand for it. She submitted it is believable that if he comes across the same problems he will take the same position as before and history will repeat itself. She accepted that it would have been preferable if she had an expert report but none was available so her submission was simply that it happened before, there was a reasonable chance that a similar situation would arise and that it would happen again. She accepted that the evidence about corruption was limited and was at pages 29 to 32 of the Appellant’s bundle but she submitted that this was just enough to suggest that corruption is endemic in Cameroon. She submitted that the Appellant had said in his oral evidence that corruption is an accepted way of life in Cameroon but also he has been tortured as a result of standing up to corruption in the past. That is why, she submitted, he feels even worse about it now particularly after being in the UK where he has seen how it is to live without corruption.
My Findings
12. I have considered the evidence and submissions at the resumed hearing in the context of the preserved findings of fact made by the First-tier Tribunal. I accept that the First-tier Tribunal made positive findings about the Appellant’s credibility. His credibility has not been specifically challenged at the hearing before me. Ms Fielden’s submission was simply that the Appellant upon return is likely to seek to earn a living in the same way that he did before he left. I accept, given that he has not gained any further significant or different qualifications or experience in the UK, that that is likely. Her submission is that if he returns to a similar means of earning a living in Cameroon he is likely to encounter the problems he did in the past. I accept on the basis of his evidence and the background evidence, that this too is likely.
13. Given the findings of fact in relation to what happened to him before, I must therefore accept that there is a reasonable degree of likelihood based on his past experiences that this will happen again. In these circumstances and on the basis of the findings of fact of the First-tier Tribunal, the evidence before me and the submissions, I accept that there is a reasonable degree of likelihood that, if returned to Cameroon, the appellant will find himself in a similar position to that he was in before he left and is likely therefore to draw himself to the attention of the authorities again and in the same way as before, it is likely that he will face detention and ill-treatment again.
14. Accordingly I accept it is likely that the Appellant will face persecution in Cameroon as a result of his imputed political opinion. For these reasons I re-make the decision in the Appellant’s asylum appeal by allowing it.
Notice of Decision
15. I allow the appeal on asylum grounds.

Signed Date: 26 February 2017

Deputy Upper Tribunal Judge Grimes

TO THE RESPONDENT
FEE AWARD

No fee is payable therefore there is no fee award.

Signed Date: 26 February 2017

Deputy Upper Tribunal Judge Grimes

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03476/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 9th November 2016

…………………………………

Before

DEPUTY UPPER TRIBUNAL JUDGE GRIMES

Between

mr MA
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Miss C M Fielden, Counsel, instructed by Leonard Cannings Solicitors
For the Respondent: Ms A Fijiwala, Home Office Presenting Officer

DECISION AND DIRECTIONS

Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
The First-tier Tribunal made an order pursuant to rule 13 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. We continue that order. Unless and until a Tribunal or court directs otherwise, the Appellants are granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

1. The Appellant is a national of Cameroon. He appealed to the First-tier Tribunal against a decision of the Respondent made on 23rd November 2015 to refuse his application for asylum in the UK. Judge of the First-tier Tribunal I Malcolm dismissed the appeal and the Appellant now appeals with permission to this Tribunal.
2. The background to this appeal is that the appellant claims that he managed his brother’s clothing sales business in Cameroon. He claims that in September 2011 when returning from Douala, where he had purchased stock, he was stopped for inspection by custom officials and asked to pay 300,000 francs on top of any import duties. He insisted on obtaining receipts for that payment but was arrested and detained at Bamenda Police Station. He was released the next day and informed that if he was charged again far worse would happen to him. The Appellant claims that after that his shop and others in the vicinity were regularly visited by tax agents demanding money. He refused to pay and the shop was closed. As a result of his frustration with this the Appellant convinced some of the other local business owners to form a group which they called Fairtrade Youths to protest against what they considered to be corrupt practices of the tax agents. He claims that he held a peaceful protest in front of the District Office demanding that the shops be reopened and that he and six other protesters were arrested and taken to the Public Security Police Station where he was detained for three nights and tortured. He claims that his release was negotiated by his cousin and he was forced to sign an undertaking stating that he would stop all activities with Fairtrade Youths. The Appellant claims that he spent five days in hospital after being released and that when he returned to the shop it was still sealed. He and two others went to the Taxation Office to ask for the removal of the seal and he was again arrested and detained for two nights and was beaten in detention. He was released again with the assistance of his cousin. The Appellant claims that he went to the District Office to apply for the Fairtrade Youths group to be recognised and approved but he was arrested again, taken to the Public Security Police Station, detained for one week and again he was beaten in detention. He says that he suffered serious injuries to the soles of his feet, behind his thighs and above his right eye. Once again his cousin negotiated his release and he was hospitalised for eleven days.
3. The Appellant claims that he was stopped in a taxi for random ID check and was arrested and detained and beaten again. On the fourth night of his detention he was released with the help of his father’s friend, a retired policeman. He was told that there were plans to bring criminal charges against him to get him out of the way to avoid him influencing more people to protest. He applied for a visa to go to the UK. His uncle took him to the airport and used his contacts to help the Appellant through the airport checks. The Appellant was given his passport and travelled to the UK. He arrived in the UK on 16th August 2012 on a three year student visa. The Appellant’s leave to remain was curtailed and he applied for asylum on 15th June 2015.
4. In her decision the First-tier Tribunal Judge records that in oral evidence in the First-tier Tribunal the Appellant confirmed that the organisation Fairtrade Youths no longer exists but said that he believes that the authorities would still be interested in him because he stood up against them and that corruption still exists [36]. The Appellant also said that he considers that he was fighting against corruption and that in going back to Cameroon he would be opposing corruption and did not consider that he would be able to be quiet in the face of injustice [46].
5. At paragraphs 69-71 of the decision the First-tier Tribunal Judge accepted the Appellant’s evidence that he had been arrested on several occasions and subjected to ill-treatment, that he had organised traders by setting up a group to protest about their unfair treatment and that these actions led to his arrest and that he suffered ill-treatment. The judge noted that the group with whom the Appellant had been involved no longer existed and that his involvement with the group was pertinent to circumstances at that particular time. The judge said that he was not satisfied that the group was of sufficient importance that the Appellant would be of interest to the authorities.
6. The judge took into account the Appellant’s delay in claiming asylum as damaging his case. The judge took into account the fact that the Appellant left Cameroon travelling on his own passport and concluded that he was not of sufficient interest to the authorities given that he was able to leave the country using his own passport. The judge concluded that the Appellant was unlikely to be of interest to the authorities if required to return and took into account the length of time which has passed since the Appellant left Cameroon. The judge went on to say that in any event the Appellant could relocate to another area [86].
7. In the Appellant’s Grounds of Appeal to the First-tier Tribunal it was asserted that the judge erred in failing to make any risk assessment based on the Appellant’s assertion that he would speak out against corruption upon return to Cameroon. Permission to appeal was refused by the First-tier Tribunal. The application as renewed to the Upper Tribunal and Upper Tribunal Judge Kamara granted permission to appeal on the basis that the grounds were arguable in light of the positive credibility findings reached by the judge in respect of the several instances of ill-treatment of the Appellant during 2011 and 2012 as a consequence of his willingness to challenge corruption. She considered it arguable that the judge materially erred in making no findings as to any future risk to the Appellant on account of his evidence that he would continue to speak out against corruption.
8. I accept Miss Fielden’s submission that the issue of the Appellant’s intentions was clearly before the judge. His oral evidence was recorded at paragraph 46, the submissions made on his behalf at paragraphs 57 and 63 and in the judge’s findings at paragraphs 70 to 76 she stated: “The Appellant has not suggested that if required to return to Cameroon he would attempt to resurrect the group, his position being however that he would feel the need to stand up against corruption in Cameroon”. I accept that the judge did not make any adverse credibility findings in relation to this asserted intention.
9. Miss Fielden referred to the background evidence before the judge at pages 29 to 32 of the First-tier Tribunal Appellant’s bundle. Whilst she accepted that the evidence was brief, she submitted that it raises the proposition that Cameroon is a country where corruption is rife. She submitted that the judge did not assess in her decision the risk to the Appellant on return on the basis of the evidence before her.
10. I note Ms Fijiwala’s submission that it was perhaps unclear on what basis there would be a general risk to the Appellant on return in terms of standing up against general corruption. I note her submission that the report before the First-tier Tribunal Judge does not state that there is general corruption. She submitted that the decision in HJ (Iran) [2011] IAC 596 would not be relevant in this case because there is no characteristic on the part of the Appellant which could not be changed.
11. I also note Miss Fielden’s submission that the principle in RT (Zimbabwe) [2012] UKSC 38 is that the principle in HJ (Iran) applies in relation to imputed political opinion and that that would be relevant in this case where the same principle applied.
12. In my view it is clear from reading the decision that, although the judge assessed risk on return on the basis of the circumstances in which the Appellant departed Cameroon, taking into account the delay in claiming asylum and the fact that the organisation with which he had been involved no longer existed, she failed to specifically address the potential risk to the Appellant in light of his assertion that he would feel the need to stand up against corruption in Cameroon.
13. Whilst I cannot say for sure that, had the judge considered specifically the report in the Appellant’s bundle she would have reached a different conclusion, the potential for risk on return in light of the Appellant’s unchallenged assertion is there. In my view the judge erred materially by failing to address that potential risk.
14. In those circumstances I find that the judge made a material error of law in relation to the assessment of risk on return. There was no challenge to the findings and I therefore preserve the judge’s findings of fact.
15. In terms of remaking the decision Miss Fielden applied for an adjournment. She submitted that, as the Appellant is publicly funded, his solicitors had been unable to obtain approval to instruct an expert to provide a report and that this could only be done after the First-tier Tribunal decision was set aside. She indicated that it is now likely that funds would be made available for such a report and she requested that an adjournment should be granted so that such evidence may be made available.
16. Although Ms Fijiwala opposed the adjournment request, I decided to grant it in light of the fact that the adjournment is required to obtain further evidence because the Appellant is publicly funded.
Notice of Decision
17. In order to remake the decision I hereby adjourn the appeal for a resumed hearing. The purpose of the resumed hearing will be to consider any relevant evidence and submissions in relation to the issue of risk on return to Cameroon on the basis of the findings of fact already made by the First-tier Tribunal.
Directions
(1) The appeal is adjourned for a resumed hearing on 8th February 2017 to consider the issue of risk on return in relation to the Appellant’s asylum appeal.
(2) Not later than fourteen days before the hearing the parties must file with the Upper Tribunal and serve on each other
all documentary evidence upon which it is intended to rely at the hearing.
(3) Time estimate three hours.

Signed Date: 23 November 2016

Deputy Upper Tribunal Judge Grimes