Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/04519/2017

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 24 April 2018
On 2 May 2018

Before

DEPUTY UPPER TRIBUNAL JUDGE A M BLACK

Between

M H A C
(ANONYMITY DIRECTION MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Karim, counsel
For the Respondent: Ms Pal, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a citizen of Bangladesh born on [ ] 1985. He appealed against a decision of the respondent on 26 April 2017 to refuse his asylum claim. His appeal came before Judge of the First-tier Tribunal J Bartlett ("the FTTJ") who, in a decision promulgated on 17 August 2017, dismissed his appeal.
2. Permission to appeal was granted by Upper Tribunal Judge Gill on 12 February 2018 who considered it arguable that the FTTJ, despite her statement that she had considered all the evidence in the round, had not assessed the reliability of the contents of the documents from the court in the round with the remainder of the evidence. Judge Gill considered it was arguable the FTTJ had rejected these documents as being unreliable because she had found the claimant not credible. Hence the matter came before me.
3. At the outset of the hearing I indicated that I considered the grounds for permission to appeal may have some merit, particularly with regard to the analysis of the court documents, for the reasons set out in the permission to appeal. Ms Pal, for the respondent, told me that she would not be making submissions contrary to my preliminary view. She accepted that the FTTJ may have misdirected herself as to the law with regard to the analysis of the documentary evidence.
4. Mr Karim, for the appellant, submitted that if the FTTJ had taken a holistic approach, as was required, her findings might have been different; proper analysis of the documents, in isolation, irrespective of her findings on credibility elsewhere, might have led her to find he was at risk on return. Those documents might have been found reliable; they included an outstanding warrant for the appellant's arrest. He submitted that the FTTJ should not have "cherry-picked" the evidence when assessing credibility. It was further submitted that, as set out in the grounds of appeal, the FTTJ should have addressed "whether lack of verification added or detracted from the documents". The respondent had not been invited to verify them. Had she verified the arrest warrant, it would have gone some way to establishing the appellant's case. These documents were at the centre of the asylum claim. In any event the FTTJ had given inadequate reasons for rejecting the court and other documents. It was also the appellant's case that the FTTJ had taken Section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 as the starting point contrary to SM (Section 8: Judge's process) Iran [2005] UKAIT 00116. Finally there was insufficient engagement with the appellant's sur place activities.
5. For the respondent, Ms Pal submitted, that the respondent had no duty to verify documents adduced in beach asylum claim; this was particularly the case when the claimant was alleging persecution by the state; those enquires would result in the state knowing the appellant had claimed asylum in the UK. It was accepted that in certain cases the respondent would make enquires but there was a limit to the Home Office resources. It was accepted the FTTJ had to consider the documents in the round with the remaining evidence. It was also accepted it was difficult to argue that the FTTJ's apparent failure to do so would not have impacted on the outcome. Her misdirection in approach to the assessment of the documentary evidenced was material, she conceded.
Discussion
6. The FTTJ notes at [19] in a preamble to her decision that she has "considered all of the evidence in the round in coming to my decision even if it is not referred to expressly in this judgement". She then goes on to make a specific finding, in the next paragraph, that the appellant "falls within section 8 of the 2002 [sic] Act and that his delay in claiming asylum damages his credibility". She noted the appellant claimed to have left Bangladesh for his safety in 2010 because of acts occurring before his departure; she also noted he claimed to be the subject of further accusations in 2015. She did "not consider that any of this is a plausible reason for the delay in his claim. The appellant's evidence as that before he was detained he had tried to call the Home Office to claim asylum and was given a reference number. However he provided no other evidence, not even the reference number, at the hearing. Therefore I give little weight to his evidence in this regard." To some extent the manner in which the FTTJ has dealt with section 8 is contradictory in that on the one hand she finds his behaviour falls within s8 and that his credibility is damaged; on the other she attributes little weight (but by inference, some weight) to his evidence that he had sought to call the Home Office, before his detention, to claim asylum. Taking the analysis as a whole, the FTTJ appears to reject the appellant's evidence of trying to make an asylum claim earlier (albeit she indicates she ascribes "weight" to it) because she has already stated she finds his credibility is damaged by his failure to claim asylum earlier. Irrespective of these concerns, the FTTJ has not followed SM (Section 8: Judge's process) which provides guidance, summarised in the headnote as follows
"Even where section 8 applies, an Immigration Judge should look at the evidence as a whole and decide which parts are more important and which less. Section 8 does not require the behaviour to which it applies to be treated as the starting-point of the assessment of credibility."
In that case the Tribunal concluded that the behaviour identified in that section is a factor to be taken into account in the overall assessment of credibility and its importance will vary from case to case.
7. Similarly, in the later case of JT (Cameroon) v SSHD [2008] EWCA Civ 878 the Court of Appeal said that section 8 factors should be taken into account in assessing credibility and were capable of damaging it but the section did not dictate that the relevant damage inevitably results. It was possible to read the adverb "potentially" into section 8(1) before the word "damaging". In that case the Court of Appeal concluded that there was a real risk that section 8 matters were given a statement and compartment of their own and were not taken into account as part of a global assessment of credibility.
8. The terms of paragraph 20 suggest the FTTJ made a specific adverse finding on credibility as a result of the s8 factors she identified. This was before she had considered the remaining evidence. That is an error of law.
9. The FTTJ's assessment of the documentary evidence, which is extensive and detailed, is woefully inadequate and she has misdirected herself on the issue. She states:
"As I have found the appellant not to be credible I have given consideration to Tanveer Ahmed [2002] UKIAT 00439."
This sentence is difficult to follow. The earlier finding that the appellant lacks credibility does not warrant consideration of this authority. Nor does the earlier adverse credibility finding warrant consideration of the documentary evidence pursuant to Tanveer Ahmed (if that is what the FTTJ intended to state). Rather, Tanveer Ahmed requires consideration of the documentary evidence in the round with the remaining evidence, including that of the appellant himself. The FTTJ appears to have misconstrued Tanveer Ahmed which required the FTTJ to look at the appellant's documents, not in isolation after having made her finding on the appellant's credibility as a witness, but with the other evidence, including that of the appellant himself, in the round.
10. The appellant produced a significant number of court and other documents, as listed, in summary form, at paragraph 16 of the FTTJ's decision. The only suggestion of consideration of the appellant's documentary evidence is the following (which follows the sentence I cite in my preceding paragraph):
"I am not satisfied that the documents from the court including but not limited to the first information report, charge sheets and order sheets can be relied upon. I am also not satisfied that the documents from individuals in Bangladesh an be relied upon."
This displays a misunderstanding of the nature of the documents themselves. By way of example, the first information report is not a court document; it is a document issued by the Pakistani police, as is clear from its heading. Furthermore, this brief reference to the documentary evidence cannot be considered to be an appropriate analysis: it is the appellant's case that these are at the crux of his asylum claim.
11. Irrespective of this misdirection in law, the FTTJ has failed to give adequate reasons for finding the documentary evidence unreliable. I bear in mind the guidance at paragraph 49 of MA (Somalia) [2010] UKSC 49, that "Where a tribunal has referred to considering all the evidence, a reviewing body should be very slow to conclude that that tribunal overlooked some factor, simply because the factor is not explicitly referred to in the determination concerned". However, as was said in MK (Duty to give reasons) Pakistan [2013] UKUT 00641 (IAC), "If a tribunal found oral evidence to be implausible, incredible or unreliable or a document to be worth no weight whatsoever, it was necessary to say so in the determination and for such findings to be supported by reasons. A bare statement that a witness was not believed or that a document was afforded no weight was unlikely to satisfy the requirement to give reasons." The same might be said of documentary evidence. In the present case the only reasons given for rejecting the appellant's documentary evidence was the earlier adverse credibility finding.
12. I accept the submission for the appellant, which was not opposed by the respondent, that the errors of law in the FTTJ's decision are material to the outcome. As was said by Keene LJ in IA (Somalia) v Secretary of State for the Home Department [2007] EWCA Civ 323:

"? in public law cases, an error of law will be regarded as material unless the decision-maker must have reached the same conclusion without the error ? [A]n error of law is material if the Adjudicator might have come to a different conclusion ? "
13. I accept that, had the FTTJ not misdirected herself with regard to the assessment of credibility and the reliability of the appellant's documents, she might have reached a different conclusion. Her credibility findings are tainted by these errors of law and cannot stand.
14. For these reasons, the decision of the First-tier Tribunal contains material errors of law in the assessment of the evidence and the FTTJ's decision must be set aside in its entirety. All parties were agreed that, in such circumstances, it was appropriate for the appeal to be decided afresh in the First-tier Tribunal.
Decision
15. The making of the decision of the First-tier Tribunal involved material errors on points of law. The decision is set aside. The appeal is remitted to the First-tier Tribunal, to be dealt with afresh, pursuant to Section 12(2)(b)(i) of the Tribunal Courts and Enforcement Act 2007 and Practice Statement 7.2(v), before any judge aside from FTTJ J Bartlett.
16. Given the nature of this appeal, the appellant is entitled to anonymity in these proceedings.

A M Black
Deputy Upper Tribunal Judge Dated: 27 April 2018

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him 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.

A M Black
Deputy Upper Tribunal Judge Dated: 27 April 2018
DIRECTIONS

1. Any further documentary and/or witness evidence relied upon by either party is to be filed with the Tribunal and served upon the other party by no later than 28 days before the date of the hearing in the First Tier Tribunal.

2. The appellant and/or his representative is to file and serve on the respondent a chronology of such events, including the court proceedings in which he has been involved in Bangladesh, as are relevant to his asylum claim.

3. The appeal is listed at Taylor House with a time estimate of three hours to be heard at 10.00 am on ?????????.

4. A Bengali (Sylheti) interpreter is required.

A M Black
Deputy Upper Tribunal Judge Dated: 27 April 2018