Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: PA/05979/2017
PA/05980/2017

THE IMMIGRATION ACTS

Heard at Liverpool
Decision & Reasons Promulgated
On 19th March 2018
On 2nd May 2018

Before

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

MRS VERA TSIMBALA (FIRST appellant)
MISS OLA AL-KHURAYBI (SECOND appellant)
(ANONYMITY DIRECTION NOT MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Ms S Khan, Counsel
For the Respondent: Mr C Bates, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellants are citizens of the Russian Federation born respectively on [ ] 1969 and [ ] 1997. They are mother and daughter. They applied for asylum in the United Kingdom asking to be recognised as refugees claiming to have a well-founded fear of persecution in Russia on the basis of their race as they claim that their father is from Yemen and they are of mixed race and fear they will be persecuted because of this upon their return to Russia. They also fear they will be persecuted because of their religion as they claim they are Islamic. The Appellants' application for asylum was refused by Notice of Refusal dated 9th June 2017.
2. The Appellants appealed and the appeals came before Judge of the First-tier Tribunal Cox sitting at Stoke on 21st July 2017. In a decision and reasons promulgated on 28th July 2017 the Appellants' appeals were dismissed on all grounds. Grounds of Appeal were lodged to the Upper Tribunal. On 27th October 2017 Judge of the First-tier Tribunal Bird granted permission to appeal. Judge Bird noted that the grounds allege that the judge had failed to consider properly the evidence given by the Appellants to show the discrimination faced by the family on a daily basis when living in Russia because of the first Appellant's marriage to a Yemeni citizen which amounted to persecution. She considered that it was arguable that although the judge noted the evidence briefly at paragraph 44 his conclusion that this did not amount to persecution failed to consider whether cumulative discrimination can amount to persecution and that an arguable error of law had been made in the judge's assessment of the evidence.
3. On 22nd November 2017 the Secretary of State responded to the Grounds of Appeal under Rule 24. That response submitted that the Grounds of Appeal are a general disagreement with the First-tier Tribunal Judge's findings and any claimed discrimination experienced by the Appellant's husband (who is not in the United Kingdom) is not sufficient to meet the threshold of persecution. The response also contended that the First-tier Tribunal Judge had properly directed himself to the question of internal relocation.
4. It is on that basis that the appeal comes before me solely for the purpose of determining whether or not there is a material error of law in the decision of the First-tier Tribunal Judge. The Appellants appear by their instructed Counsel, Ms Khan. The Secretary of State appears by her Home Office Presenting Officer, Mr Bates.
Submissions/Discussion
5. Ms Khan relies on the Grounds of Appeal submitting that the important question to be answered is whether or not the fear expressed by the Appellants, particularly by the first Appellant for herself and the second Appellant amount to persecution. She submits that the judge appears to have accepted part of what occurred, refers me to the bundle that was before the First-tier Tribunal with regard to that conduct and the very serious incident that culminated thereon to be found at paragraph 5 on page 11. She submits that the judge does not appear to reject the evidence and refers me to paragraph 40 of the decision where the judge acknowledged that it is not in issue that there are concerns in Russia about the conduct of some groups although the judge quite rightly had pointed out that there are many people in Russia from ethnic minorities and that there are significantly large numbers of Muslims and about half of all conscripts to the army are Muslims.
6. Ms Khan notes the finding at paragraph 41 relating to conscription but submits that the judge does not take into account all factors. Referring me to paragraph 59 of the decision there is evidence that the authorities are not challenging the existence of neo-Nazi groups and that there is some societal discrimination. Ms Khan challenges the finding of the judge at paragraph 59 that the problems do not approach the level that equate to persecution.
7. Ms Khan explains to me the position with regard to the first Appellant's husband (the second Appellant's father), namely that he was initially working in the UAE but he lost his job and that he is waiting for the situation in the Yemen to improve and that the first Appellant's husband's status is not lawful. The current Appellants came to the UK on visit visas and thereafter claimed asylum in the UK.
8. She refers me to various extracts from the bundle by way of objective evidence including the Human Rights Watch Report and submits that the error that has arisen is the failure to look at the cumulative approach rather than individual incidents. She submits that there is a lack of protection from the authorities and that the judge has failed to take into account his own findings in reaching his ultimate conclusions.
9. In response Mr Bates indicates that the status of the Appellant's husband has been thoroughly addressed at paragraphs 50 to 57 of the decision and that the judge did not accept there was any satisfactory evidence relating to the contention that the husband had ceased employment and that it was not possible for the Appellants and dependants to return to the UAE and to continue their family life there if they wished to do so. He takes me through the judgment, in particular pointing out the judge's analysis at paragraphs 39 and 40 of the background evidence regarding Russia and takes me to paragraph 60 noting that the judge in coming to his findings had considered the full content of the objective evidence that the Appellants rely on and the source of the same. He also points out that the judge has taken into account published articles as referred to at paragraph 71 and specific documents as referred to at paragraph 73.
10. He submits that Russia is ethnically diverse and that if there is a problem then internal relocation could be considered. He notes that there are significant numbers of the population who are of ethnic minorities and that no reason has been sustainably given as to why it would be unreasonable for the Appellants to return. He submits that any suggestion of persecution is effectively historical in nature and rejects the contention put forward that having a Ukrainian accent is a problem pointing out the first Appellant has in fact made a visit.
11. In brief response Ms Khan submits that internal relocation has not been properly considered within the determination and whilst it is submitted that 50% of conscripts are Muslim information as to when that took place has not been provided and how that percentage has been reached. However, she takes me back to paragraphs 41 to 43 of the bundle and documentation relating to the position of the first Appellant's husband. She asks me to find there are material errors of law and to remit the matter back to the First-tier Tribunal for rehearing.
The Law
12. Areas of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on fact or evaluation or to give legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
13. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue of argument. Disagreement with an Immigration Judge's factual conclusion, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge's assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence which was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible. Nor is it necessary to consider every possible alternative inference consistent with truthfulness because an Immigration Judge concludes that the story is untrue. If a point of evidence of significance has been ignored or misunderstood, that is a failure to take into account a material consideration.
Findings on Error of Law
14. This is a well constructed decision. The judge has heard the evidence and has given full and proper consideration to the factual history. At paragraph 68 the judge has quite properly made a finding that a single incident, albeit a violent attack, is not evidence of persecution or a lack of sufficiency of protection.
15. I do not find that the decision discloses any material errors of law. I agree with the submissions made in the Rule 24 response that effectively what is being suggested amounts to no more than disagreement with the findings of the judge. It is important that I give my reasons for this. That is best addressed by looking at the decision as set out by the First-tier Tribunal Judge. The judge has thoroughly analysed the evidence. He has considered the objective evidence including accepting that there is some societal discrimination and some evidence that the authorities are not challenging the same but made a finding which he was perfectly entitled to that the problems do not approach the level that equate to persecution.
16. The judge has considered the objective evidence and the sources in reaching that conclusion, published articles that the Appellants rely upon and internet publications including blogs and Twitter. The judge has been fair in his analysis. At paragraph 74 he has accepted that the Appellants are correct that the political situation has changed and that it is on a balance of probabilities that the Ukrainian authorities are no longer willing to allow those who have Russian citizenship to enter and remain in Ukraine as was previously the case. However, the judge found as the Appellants can return to Russia the inability to relocate to Ukraine is not relevant and this was a finding he was entitled to make.
17. The judge has analysed all issues that have taken place. One of the criticisms that has been made is that the judge has only looked at isolated incidents rather than looking at matters in the round. It is clear from an analysis of the decision that that is not the case. Cumulatively the judge has made findings for which he has given reasons and has reached conclusions that he was entitled to on hearing the evidence. It has to be remembered that the Upper Tribunal is not rehearing the evidence but merely analysing whether or not the First-tier Tribunal Judge erred in law. Further, the judge was entitled to find at paragraph 81 that there was sufficiency of protection and that internal relocation was a reasonable outcome.
18. For all the above reasons I am satisfied that the judge has made findings that he was entitled to and has given full and sustainable reasons for these findings. Overall, the submissions amount to little more than mere disagreement with the findings of the judge. In such circumstances the decision and reasons disclose no material error of law and the Appellants' appeal is dismissed and the decision of the First-tier Tribunal Judge is maintained.
Notice of Decision

The decision of the First-tier Tribunal discloses no material error of law and the Appellants' appeal is dismissed and the decision of the First-tier Tribunal is maintained.

No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge D N Harris

TO THE RESPONDENT
FEE AWARD

No application is made for a fee award and none is made.

Signed Date 23 April 2018

Deputy Upper Tribunal Judge D N Harris