Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03729/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Decision & Reasons Promulgated
On 25 October 2016
On 26 October 2016

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

N S A SHAMA
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Mr G A Dewar, Advocate, instructed by Latta & Co, Solicitors
For the Respondent: Mr M Matthews, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant appeals against a determination by First-tier Tribunal Judge Walker, promulgated on 26 August 2016, dismissing her appeal against refusal of recognition as a refugee.
2. The appellant's grounds of appeal to the upper tribunal are set out in 5 paragraphs. Ground 5 is a summary of what goes before. Ground 4 complains that the judge at three points referred to the wrong country. Mr Dewar acknowledged at the outset that ground 4 might add something, but would not be enough on its own to set aside the decision.
3. Ground 1 is that the judge went wrong by applying Devaseelan, the principles of which "do not apply to similar facts led by a different appellant"; and that in any event, the judge went wrong by failing to recognise that issues before him were not the same as those before the previous judge, and failed to engage with the fresh materials.
4. Mr Dewar expanded upon this ground by reference to Devaseelan. He submitted that there was a lack of clarity as to whether the judge was dealing with the same facts or with novel factors, and that the judge failed to engage with the fact that there was fresh evidence.
5. Ground 2 focuses on paragraph 43, where the judge describes the fresh evidence as "self-serving". Mr Dewar submitted that no other explanation was given for disregarding the documents, and that the description of them as self-serving was meaningless.
6. Ground 3 criticises the judge at paragraph 49 for speculating that authentication of original documents (which had not been returned by the respondent to the appellant for this purpose) would not be possible. Mr Dewar submitted that the judge drifted into speculation and it was not for him to hypothesise what the outcome of authentication might have been. He said that the appellant's representatives made three written requests for return of the documents, without reply. An expert had been "lined up" but the appellant was unable to take the matter further.
7. Finally, Mr Dewar submitted that the errors in sum were such as to require a remit to the first-tier tribunal.
8. Mr Matthews acknowledged that letters had been received from the appellant's solicitors dated 12th January and 20 April 2016 requesting the return of the documents, which letters had been placed on the file, but no reply sent. (Mr Dewar advised, on instructions, that a further request dated 11 July 2016 had also been sent.)
9. On ground 1, Mr Matthews submitted that the judge correctly applied the principles of Devaseelan as developed in subsequent cases on claims by family members based on the same alleged facts. The determination in the case of the appellant husband's stood unchallenged, and was the correct starting point. There was no real difference in the facts alleged, only in the attempt to prove them further by the production of the documents. One of these was an alleged arrest warrant, and the other two were official memoranda, one within the Libyan government, and the other a communication between the Libyan and Egyptian governments. The Libyan document on the face of it was a curiously convenient narration of the claim for the appellant. The judge did not deal with the documents only by describing them as "self-serving ", which Mr Matthews accepted was not a useful description, although he said it was clear that the judge meant that the documents had "more than a whiff of contrivance", which would have been justified. The judge noted at paragraph 39 that the appellant's husband had contradicted himself on the subject of an arrest warrant. The judge was careful to observe that the further evidence post-dated the previous claim. At paragraph 44 he found it implausible the appellant would obtain an internal memo from the Ministry of Defence or Libyan army, or that such a note would succinctly set out details of the asylum claim. He noted at paragraph 45 of the document and its contents were referring to events which had "already been adjudicated upon and found to have been fabricated". He went on at paragraphs 46 and 47 to observe that the further document was on the face of it a private communication between the authorities in Libya and the authorities in Egypt, and that the appellant again offered no explanation of how she obtained it. He therefore concluded at paragraph 48 that these documents had no evidential weight. That showed the correct approach to new material advanced, and no error was shown. The judge had been alive to the question whether the new material made any difference, and found that it did not. The submissions for the appellant in effect sought reasons upon reasons, and amounted only to disagreement.
10. It was accepted that it was unhelpful that requests for return the documents authentication gone without response. There had been no presenting officer at the hearing in the first-tier tribunal. The appellant's submissions mentioned that an application for adjournment was refused, but there was no ground of appeal to the UT on that basis. The appellant might have asked the tribunal to make a direction in respect of documents, but had not done so. No ground of procedural unfairness was suggested. The lack of response to the requests had no eventual significance. In any event, it was difficult to see that at best an expert might say any more than that such documents were on their face apparently genuine, or that an expert could say anything to explain away the unlikelihood of their appearance in the hands of the appellant, or the convenience of their narrating her asylum claim.
11. Mr Dewar in reply said that there had been an application for adjournment at the first-tier tribunal hearing, apparently renewed in the course of that hearing, which might be sufficient to enable the upper tribunal to form a view on an issue of procedural unfairness, even in the absence of a ground of appeal.
12. I reserved my decision.
13. It is right to take a prior decision as a starting point where a relative relies on the same claim in a new appeal.
14. New material of course has to be evaluated. That is what the judge did. No legal error in that respect of his approach has been shown.
15. The expression "self-serving" is vague, unhelpful and better avoided; but the judge's reasons for rejecting the fresh evidence are not confined to that phrase. They are sensibly set out in the following paragraphs. The attack on that part of the decision was in my view a search for reasons upon reasons.
16. It would be speculative to say that an expert report on the documents could not possibly have helped the appellant, but she has not alleged that she was unfairly deprived of the opportunity to make her case, nor has she tried to show how her case might have been any better, if she did have the chance to show originals (rather than copies) of the documents to an expert. She did not advance the matter by timeous application for directions or for adjournment, or even belatedly by way of grounds of appeal to the UT.
17. The appellant's grounds in my opinion resolve into no more than reassertion and disagreement on the facts. The FtT decision comprises a legally adequate explanation to the appellant of why she did not establish the case she put. No error on any point of law is shown.
18. The determination of the First-tier Tribunal shall stand.
19. Parties concurred that there was no need for an anonymity direction.

26 October 2016
Upper Tribunal Judge Macleman