Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/05533/2016

THE IMMIGRATION ACTS

Heard at North Shields
Decision & Reasons Promulgated
On 9 March 2017
On 13 March 2017
Prepared on 10 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE JM HOLMES

Between

M. D.
(ANONYMITY DIRECTION MADE)
Appellant
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Mendoza. Counsel instructed by Sentinel Solicitors
For the Respondent: Ms Petterson, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant entered the United Kingdom illegally and claimed asylum on 8 October 2015. The application was refused on 22 May 2016, and a section 120 notice was served as part of the decision.
2. The Appellant’s appeal to the Tribunal was heard and dismissed by decision of Judge Cox promulgated on 8 November 2016. The Appellant’s application to the First Tier Tribunal for permission to appeal (which was not drafted by Ms Mendoza) was granted on 5 December 2016 by Judge Astle on the basis it was arguable the Judge had failed engage with the medical evidence relied upon by the Appellant when considering the weight that could be given to her account.
3. The Respondent filed a Rule 24 notice dated 19 December 2016 in which she pointed to the references to the medical evidence in the Judge’s decision and argued that the Appellant’s complaint was no more than a disagreement with the Judge’s conclusions on credibility.
4. Thus the matter comes before me.

Error of Law?
5. I regret to say that in my judgement the grounds for the application for permission to appeal (which I note Ms Mendoza did not draft) seriously misrepresent the Judge’s decision. It is asserted therein that the Judge ignored the medical evidence before him, and it is asserted that it is not possible to ascertain the basis for the decision to dismiss the appeal since the account of trafficking for prostitution from Albania to Belgium was accepted as plausible in the light of the number of young women who are subject to such treatment. However it is then asserted that the adverse findings are made in a vacuum, without reference to any relevant background evidence or country guidance (none being identified). Those assertions are in my judgement made without adequate foundation.
6. The central dispute before the Tribunal was the weight that could be given to the Appellant’s evidence. The competent authority had concluded that she was not a victim of trafficking as claimed, and that she had not left Albania when she had claimed to have done. Her account of having been forced into prostitution and thus being unable to identify the paternity of her baby was also disputed.
7. The Respondent argued before the Tribunal that the Appellant had lied about her lack of contact with her husband, and that the reality was that she had travelled to the UK to be reunited with him, and that he was the father of her child. The Respondent’s case was that the Appellant had accepted that her husband had left Albania in June 2011 intending to travel to the UK and that he had contacted her from the UK. It was argued that she had demonstrably lied when she had claimed to have lost contact with him, and that she did not know where he now was.
8. It was common ground that the Appellant had unsuccessfully applied for a student visa to travel to the UK on 15 April 2015 to attend a one week course in English (she had already previously acquired a degree in Albania). A copy of the visa application submitted by the Appellant, and the refusal decision, was in evidence.
9. The Respondent relied upon evidence provided by the Albanian authorities to the British Embassy in Tirana. This evidence was that the Appellant had left Albania by air on 7 June 2014 for Italy using her own legitimate Albanian passport to do so. The Albanian authorities had no record of her having returned. The Albanian authorities also had a record of her husband leaving Albania by air on 6 June 2011 using his own passport for Brussels, and again there was no record of her having returned [Embassy letter 4/5/16]. The Judge was entitled to treat this as cogent and reliable evidence, and the grounds offer no reason why he should not have done so.
10. The Appellant accepted that she had left Albania in June 2014, but she claimed that she had only travelled to Italy with her brother for a few days to accompany him whilst he received medical treatment, and that she had then returned to Albania. She said that she had then flown from Albania to Italy on 25 September 2014, and then on to Belgium the same date, whereupon she said she was raped and forced into prostitution.
11. The Judge recorded the Appellant as having told him in oral evidence that she knew her husband was in the UK when he first contacted her after leaving Albania, and that she had applied for a visa to the UK “because she wanted to see where her life would be with him”. He found this answer significant, as he was entitled to. He contrasted this evidence with her denial that she knew where her husband now was, and her claim that she had lost touch with him shortly after he had travelled to the UK and contacted her by phone from the UK [43]. Neither the grounds, nor Ms Mendoza’s submissions offered any reason why the Judge should not have considered this oral evidence from the Appellant significant.
12. The Judge also contrasted the Appellant’s evidence in support of her asylum claim, and appeal, about her circumstances in Albania with the information she had given about her husband when making her visa application in April 2014 [49] and he concluded that the Appellant had intended to deceive the entry clearance officer about her true circumstances when making that visa application [53]. As such he was perfectly entitled to conclude, as he did, that this was a deception that was practiced well before the Appellant claimed to have been trafficked for prostitution, and to have been raped. Thus the evidence concerning this deception was unaffected by any mental health difficulties resulting from any subsequent experiences. Moreover this was far from a “peripheral matter” as the grounds assert.
13. The Judge was not satisfied that the Appellant had told the truth about her movements, concluding that she had indeed flown from Albania to Belgium on 7 June 2014, and that she had not returned to Albania thereafter [62]. The grounds offer no basis upon which it could be argued that this finding was unreliable.
14. In conclusion the Judge rejected as untrue the Appellant’s account of being forced into prostitution and concluded that she had travelled to the UK to be reunited with her husband who was present in the UK illegally, and who was the father of her child. He also rejected as untrue her claim to have been at any risk of harm from members of her family.
15. Before the Judge in evidence were copies of the Appellant’s GP notes, and letters from two GPs. There were also letters from Alliance Psychological Services. All of this material was referred to by the Judge in his decision [36-41], before he turned to his analysis of the weight that could be given to the Appellant’s evidence. Ms Mendoza accepted that the Judge did not overlook the medical evidence relied upon. Her argument was instead that the Judge was obliged to do more than list the evidence relied upon, and that he had to show in the course of his decision that he had engaged with its content. Since the medical evidence dealt with the Appellant’s state of mind since her arrival in the UK, and since it recorded the Appellant’s disclosures of rape and her experiences as a prostitute, she argued that the Judge was obliged to review the content of this material in detail. If he had, then she argued that he would have noted that the Appellant’s account of her trafficking and prostitution experiences had remained consistent. Moreover, rather than referring to the Appellant as giving a vague and incredible account of her escape from her pimp in Belgium and her ability to board a lorry for the UK she argued that the Judge would have approached the assessment of the weight that could properly be given to her evidence on these matters from a different perspective.
16. Having reviewed all of the evidence (including the medical evidence which Ms Mendoza did not seek to take me through), and the content of the Judge’s decision for myself, I am satisfied that the complaints raised against the decision are in truth no more than a disagreement with the adverse findings of fact. It is inappropriate to suggest that the Judge gave no weight to the medical evidence, when it is plain from the decision that he had reviewed it all. The Judge was not required to rehearse all of the content, and nor was he required to treat the Appellant’s reports to medical professionals of her experiences as true. Rather he was obliged to consider the content of the medical evidence holistically alongside the rest of the evidence before him, and in my judgement that is precisely what he did. The mere fact that the Appellant had consistently reported to medical professionals a claim that she was trafficked for prostitution and raped did not mean that such a claim was true. The Judge gave entirely adequate reasons for his conclusion that the Appellant had not told the truth, and that her asylum claim was based upon a fiction.
17. In the circumstances the Judge did not make any material error of law in his decision to dismiss the appeal on all grounds. The Appellant’s appeal is dismissed.

DECISION
The Decision of the First Tier Tribunal which was promulgated on 8 November 2016 did not involve the making of an error of law in the decision to decision to dismiss the appeal that requires that decision to be set aside and remade. That decision is accordingly confirmed.

Deputy Upper Tribunal Judge JM Holmes
Dated 10 March 2017

Direction regarding anonymity – Rule 14 Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until the Tribunal directs otherwise the Appellant is granted anonymity throughout these proceedings. No report of these proceedings shall directly or indirectly identify him. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to proceedings being brought for contempt of court.

Deputy Upper Tribunal Judge JM Holmes
Dated 10 March 2017