Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/05814/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 24 January 2017
On 31st January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE A M BLACK

Between

A (aka A, aka A)
(ANONYMITY DIRECTION MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr C Appiah, counsel
For the Respondent: Mr D Clarke, Home Office Presenting Officer

DECISION AND REASONS

1. This matter comes before me for consideration as to whether or not there is a material error of law in the determination of First-tier Tribunal Judge Reid ("the FTTJ") promulgated on 21 November 2016, in which she dismissed the appeal against the refusal of his asylum claim.

2. No anonymity direction was made in the First-tier Tribunal but, given the references in this decision to the appellant's half-brother and the latter's personal circumstances, an anonymity order is required. I refer to the appellant's half-brother in the UK (who gave evidence before the First-tier Tribunal) as "B". I refer to the appellant's other brother (to whom the FTTJ refers at [36] and [37]) as "C".

Background

3. The appellant made his initial asylum claim in October 2010, in another name, on the basis he was a Kuwaiti Bedoon who feared retribution from his pregnant girlfriend's family and on the grounds of his ethnicity. His claim was refused by the First-tier Tribunal and that decision upheld in the Upper Tribunal. Findings were made that he was not a Bedoon and that he had used false documents. It was found he was a Kuwaiti and could return to Kuwait.

4. In January 2013 the appellant made a new claim on the basis of his Syrian nationality, being unable to return to return to his home area Banias because he was a Sunni Muslim and would be perceived to be anti-regime, members of his family having participated in anti-regime demonstrations. He provided documentary evidence in support. The appellant then, through his new representatives, sent a further letter to the respondent in May 2014 to the effect that he feared persecution in Syrian because of past ill-treatment during military service; alternatively he would be at risk as a failed asylum seeker; alternatively because his brother had been imprisoned. The appellant then produced copies of further documents: a family record of book and a military service record.

5. It was the refusal of the second asylum claim which was the subject of the appeal before FTTJ Reid. Judge of the First-tier Tribunal Landes granted permission to appeal against FTTJ Reid's decision in the following terms:
?
2. It is arguable that the judge erred in her assessment of the expert evidence as set out in ground 1. She gave Dr Fatah's report weight as being systematic and on the basis that he was an experienced witness with relevant expertise and qualifications and accordingly it is arguable that given the weight she had placed on that report her reasons for rejecting the expert's conclusion that the appellant was a native Syrian Arabic speaker were inadequate.

3. I also consider ground 2 to be arguable. Whilst I do not consider it particularly relevant that the respondent had accepted [B] as a Syrian national, the judge did not explain why she had given no weight or little weight to [B]'s evidence.

4. I do not however understand ground 3. The DNA report said that the appellant and [B] were half-brothers. It was said that they could not be confirmed to be full brothers because no samples were taken from the parents but no evidence was produced to the judge to this effect [8]. Accordingly I do not see how the judge can have erred as alleged. In case I have misunderstood a vital part of the argument and bearing in mind I am granting permission in any event, I do not restrict the grounds which may be argued."

6. Hence the matter came before me.

Submissions

7. Mr Appiah, for the appellant, adopted the grounds for permission to appeal and made additional oral submissions. I summarise the grounds as follows:

a. The FTTJ gave weight to the opinion of the expert yet failed to give cogent or detailed reasons for rejecting the expert's conclusion that the appellant was Syrian. The report "rated the appellant's evidence ? as either good or acceptable". The FTTJ concluded the appellant was able to speak Syrian Arabic but that this was as a result of his association with B; there was no basis for a finding that the appellant had received sufficient help to convince the expert he was from Syria. The FTTJ's reasons for rejecting the expert's conclusions were not supported by the evidence. Mr Appiah confirmed it was not submitted that the decision to reject the expert evidence was perverse.
b. There was no assessment of the credibility of the evidence of B. He had been cross-examined and his evidence should have been given greater weight. Contrary to the grounds of appeal, this witness had not previously been the subject of an appeal decision. B's evidence consisted of three assertions: he was Syrian, the appellant was his full brother and the appellant was also Syrian. The FTTJ did not give reasons for rejecting those parts of his evidence and should have done so.
c. The FTTJ had found the appellant was not the full sibling of B. There was DNA evidence before the FTTJ sufficient to support the claim that they were full brothers. Given that the parents were not themselves available for testing; the test could only confirm they were half brothers. It was not therefore "wholly inconceivable" that the appellant and B were full brothers. The FTTJ had failed to take into account the lower standard of proof in assessing the DNA and other evidence as regards the nature of the relationship.
d. The totality of the evidence, which was not available for the first asylum appeal, should have been given more weight to overturn the findings made in the first appeal.

8. Mr Clarke, for the respondent, responded as follows:

a. The FTTJ had given full reasons for rejecting the expert's conclusions: the report was not determinative but required consideration in the round, taking into account all other matters. The report should not be considered in isolation. It was appropriate for the FTTJ to take into account the appellant's immigration history, including his earlier false asylum claim. The weight to be given to the expert evidence, which was not wholly in favour of the appellant, as identified by the FTTJ, was a matter for the FTTJ in the light of all the material before her. There were many reasons, as set out by the FTTJ to doubt the appellant's credibility. Her approach was not wrong: the expert evidence was not sufficient to depart from the previous findings. The appellant's challenge was no more than a disagreement with the findings.
b. As regards B, there were various findings with regard to his credibility at [36], [37] and [40]. He had given inconsistent accounts and this damaged his credibility. The assertion that the appellant and B were full brothers, when the DNA evidence was that they were half brothers, also damaged their credibility. The evidence of the expert did not corroborate their evidence as to their relationship.
c. The appellant's and B's evidence was contrary to the DNA evidence. That evidence could not stand on its own; it should be considered in the round. There were so many credibility issues that the FTTJ was entitled to find that the DNA report was accurate and that the appellant and B were half brothers.

9. In reply Mr Appiah acknowledged that the findings of fact in the UT were the starting point. However, he submitted they were not binding and that the task of the FTTJ had been to consider the new evidence. The appellant had given an explanation for claiming initially he was a Kuwaiti; he had provided evidence to support his new claim; that evidence was not before the UT. The single most important issue was the appellant's nationality and this ought to have been scrutinised closely.

Discussion

10. The FTTJ identifies the appellant's second asylum claim had "shifted" [20]. She sets out her specific concerns and states that "this changing account affects his credibility". The FTTJ's assessment of the appellant's own evidence, ie apart from the expert, DNA and his brother's evidence, is not challenged before me. Nor is the finding that the appellant delayed for "around 3 years after his arrival" in the UK and the negative impact of this on his credibility [25]. The FTTJ did not accept as reasonable the appellant's explanation for that delay. She noted he relied on his own false claim to explain why he had not identified himself as Syrian earlier. The FTTJ did not therefore, on reasonable grounds, accept the appellant's explanation for the delay in making the new asylum claim on the basis of his Syrian nationality.

11. The appellant does not challenge, before me, the FTTJ's findings on the reliability of the documents produced by the appellant in support of his claim to be at risk as a result of being a Syrian citizen. This is a matter of some importance which the FTTJ took into account in making her assessment of the reliability of the appellant's evidence generally. She was entitled to do so.

12. This is not a case where the FTTJ has relied on adverse credibility findings to reject the expert evidence of Dr Fatah with regard to the appellant's nationality, as is clear from the decision overall and specifically [19]. Nor is this submitted for the appellant. The FTTJ has taken as her starting point the findings in the Upper Tribunal decision dated 25 January 2012: her [12] refers. Again that approach is not criticised by the appellant. Thus it was appropriate for the FTTJ to approach the appeal on the basis that, unless the appellant showed otherwise, he was from Kuwait and able to return safely to Kuwait. It was also accepted by the appellant that he had used false or unreliable documents in support of his first asylum claim ([12] of the FTTJ's decision refers). It was also accepted by the appellant that he had told lies and that his previous asylum claim was false (see the appellant's submissions at [14]). These are matters of relevance to an assessment of the evidence overall, including the expert evidence.

13. The FTTJ notes that the appellant gave a different account to Dr Fatah than that he had given elsewhere [34]. The FTTJ makes positive findings about Dr Fatah's methodology, expertise and the report itself. She gives his opinion weight [41]. She recognises it as "in addition to the DNA tests ? a key part of the Appellant's claim to be Syrian and is part of the new evidence said to displace the previous Tribunal and Upper Tribunal findings as the starting point on nationality." She notes the report was based on an hour's telephone call "which while a reasonable period of time, had to cover a wide range of different topics". She also takes into account the appellant's previous false claim and his previous reliance on false documents and his being "prepared to go to great lengths to extend his stay in the UK". She notes Dr Fatah's conclusions with regard to the level of his Syrian Arabic. The FTTJ accepts the appellant and B are half-brothers and that the appellant may have had family in Syria "who he may have spent time with in Syria during his life". She finds the appellant was likely before he arrived in the UK to have some familiarity with Syrian Arabic already and that he has improved upon that with B's help. She, in effect, found that his ability to speak Syrian Arabic was not sufficient, without more, to demonstrate he was a Syrian national. She decided this having "taken into account [her] other credibility findings and the fact that the Appellant ha[d] in his first asylum claim used any means he [could] to try to obtain asylum and [had] been dishonest". She noted Dr Fatah's assessment of the appellant's knowledge of Syrian matters, was "acceptable or good" except in relation to his knowledge of national holidays in which he was rated "unsatisfactory" [44]. Similarly the appellant, according to Dr Fatah, did not know Syrian coinage [p44]. She observed Dr Fatah noted he would expect more knowledge in some areas [44]. She also noted "much of the information in this area and the other areas could have been researched and learnt or taught by [B]". The FTTJ has undertaken a comprehensive and detailed assessment of the evidence of Dr Fatah as part of a global assessment of the evidence generally. She has given it some evidential weight, as is consistent with her recognition of his expertise and methodology. She has put it in the context of the appellant's evidence overall and his history of having made an earlier false asylum claim without reasonable justification. She has also taken into account her assessment of the evidence of B and the DNA evidence. I am unable to find that the FTTJ's assessment of the expert evidence is flawed. It is comprehensive and detailed and founded in the evidence.

14. I turn to the assessment of B's evidence. It is submitted that the FTTJ failed to make a credibility finding. I disagree. The FTTJ noted at [36] that the appellant claimed his brother, C, had been arrested and was in prison for a year. However, B told the FTTJ that the authorities had not been interested in C. The FTTJ finds "this damages both the Appellant's and [B]'s credibility as this would be a significant matter they would not forget or make a mistake about". Furthermore, she notes at [37] that "neither mentioned [C] was in Holland until the hearing. Given the Appellant had said [C] had been in prison ? and relevant to his claim, this was an obvious gap in his witness statement". Whilst the FTTJ refers specifically to a gap in the appellant's evidence, it is implicit that the failure of B also to mention his brother being in Holland, is deserving of criticism. Furthermore, at [40] the FTTJ deals with the DNA evidence to the effect that the appellant and B were half-brothers. She finds, "given [her] other credibility findings, ? it is more likely that they are half-brothers than full brothers". She states [40] that "this damages both the Appellant's and [B]'s credibility." Given these findings, it is implicit the FTTJ found B's evidence to be unreliable. There was no need for further specific findings on the issue.

15. The third submission for the appellant is that the DNA evidence, whilst limited to stating that the appellant and B are half-brothers, should have been taken, given the low burden of proof, as being supportive of the appellant's and B's evidence that they were full brothers. This was because, it is submitted, for good reason their parents had not provided samples for DNA testing. It was argued that, the DNA report was consistent with their claims to be full brothers. The FTTJ was entitled to take into account the evidence which was before her. This included her findings that the evidence of the appellant and B was not consistent and not reliable. It was open to her to accept the findings of the DNA report and this she did.

16. For these reasons, I do not accept the submissions for the appellant. There are no material errors of law in the FTTJ's decision. Her decision stands.

Decision

17. The making of the decision of the First-tier Tribunal did not involve a material error of law and the decision is preserved.

18. This appeal is dismissed.

A M Black

Signed Date 30 January 2017
Deputy Upper Tribunal Judge A M Black

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

Signed Date 30 January 2017
Deputy Upper Tribunal Judge A M Black