Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/05257/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 14 February 2017
On 02 March 2017

Before

UPPER TRIBUNAL JUDGE PITT

Between

G J U N
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr A Jafar of Counsel, instructed by Kothala & Co
For the Respondent: Ms Z Ahmad, Senior Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal against a decision promulgated on 21 December 2016 of First-tier Tribunal Judge K Swinnerton. The decision refused the appellant’s protection claim.
2. The appellant’s protection claim was made on the basis that he would be perceived to be gay on return to Cameroon. His account was that he was involved in human rights groups including those supporting LGBT rights and gay and LGBT activists, and as a result he was mistreated in Cameroon during an arbitrary detention in September 2013. The arrest in 2013 followed the death of a gay activist, Eric Lembembe. When another gay activist, Charles Eyene, was found dead in 2014, the appellant was informed that the police wanted to speak to him and he received a summons. As a result, he went into hiding and travelled to the UK in October 2014.
3. The appellant brought a number of challenges to the credibility findings of First-tier Tribunal Judge Swinnerton. The first concerned the findings at [24] regarding the appellant’s statements in his asylum interview on his involvement in human rights associations in Cameroon. Judge Swinnerton said this at [24]:
“24. At the hearing, the Appellant stated that he did not detail the associations to which he belonged that promoted the rights of and protected those denounced as he had not been asked that question at the asylum interview. I do not accept that explanation. In the asylum interview, the Appellant stated that he was in correspondence with an association that defended human rights and referred to being in correspondence with Eric Lembembe who belonged to two human rights organisations. The Appellant expressly stated that he was only a correspondent and did not refer to being a member of any association. He was clearly given the opportunity to specify his membership of any human rights associations and did not do so. Conversely, the Appellant in his witness statement refers to his membership of three human rights associations and at the hearing referred to four associations that he and Eric Lembembe belonged to yet he failed at the asylum interview to refer to or name any of those associations.”
4. Judge Swinnerton made an adverse credibility finding on the basis that the appellant had not referred to being a member of human rights groups in his interview and had not named any human rights groups in the interview.
5. The difficulty with these findings is that, as put forward by the appellant, he did state that he was a member of a human rights group in Cameroon, indicating in response to question 3:
“I was accused of practising homosexuality. Because I belong to an association that defended the rights of homosexuals.”
That statement is supported by what he says in his witness statement at paragraph 6 where he details three human rights organisations, for which he provided original membership cards at the hearing.
6. Further, it is also correct that even though he stated that he had belonged to a human rights group in Cameroon, the appellant was not asked in his interview to name that group. The respondent argues that the burden was on him to give further details and that he had an opportunity when asked if there was anything he wanted to add at the end of the interview. It is not my judgement that the appellant could be expected to volunteer this further level of detail in the context of an interview controlled by the questioner.
7. It was for the judge to decide what weight he could place on the appellant’s evidence on being involved in human rights activities in Cameroon. The adverse credibility finding at [24] is not a permissible one, however, as it is based on a misreading of the appellant’s case.
8. In protection claims, the assessment of credibility is a holistic exercise. Here, where the finding at [24] is not sustainable, the sustainability of the overall credibility finding begins to come into question. That is additionally so here where at [25] the judge finds that the appellant “has provided very little in the way of documentation to substantiate” his involvement in human rights associations. By the time of the hearing the appellant had provided quite a range of potentially corroborative materials including at least two original membership cards for human rights organisations in Cameroon, arrest warrants, summonses, newspaper reports. The judge states at [25] that the appellant:
“… has not provided any documentation relating to his communications with Eric Lembembe which took place over a period of 7 years.”
There is no further assessment of the original membership cards. It is my view where a range of supporting documents had been provided, the absence of personal correspondence between the appellant and an activist was not a rational basis for placing no weight on the membership documents.
9. Further, the judge states at [30]:
“The Appellant has provided for the purpose of the hearing an arrest warrant dated 3.11.2014 and other official documents such as summonses to appear on 13.3.2014, 13.4.2014 and 15.4.2014. The Appellant did not give evidence that these documents were served on him but stated that these documents were provided to him by his mother who went to the police station and paid for them. The Tribunal can give no weight to documents so belatedly produced and must assess them on Tanveer Ahmed* [2002] UKIAT 00439 principles.”
There is no further consideration of the arrest warrant and summonses. The judge sets out some of the appellant’s evidence from paragraph 9 of his witness statement as to how he managed to obtain these documents but does not indicate why it was not found sufficient to explain the materials being provided in line with directions for the hearing rather than earlier in the claim. The simple fact of them being submitted when they were is not, particularly where these were potentially highly probative documents, sufficient for no weight to be placed on them at all without any further assessment of any kind.
10. These three aspects of the decision were sufficient in my judgement to indicate that the credibility findings were not rational and could not be sustained. I found that the decision had to be set aside to be re-made given that the findings of fact on the credibility of the appellant’s account could not stand and had to be made de novo.
11. The parties were in agreement that if an error of law was found the matter should be remitted to the First-tier Tribunal and that, in my view, is the appropriate outcome here.
12. Notice of Decision
13. The decision of the First-tier Tribunal discloses an error on a point of law such that it must be set aside to be remade.
14. The appeal will be remade de novo in the First-tier Tribunal.
15. The appeal will be heard at Hatton Cross but not before First-tier Tribunal Judge K Swinnerton.

Signed Date 28 February 2017
Upper Tribunal Judge Pitt