Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/06602/2018

THE IMMIGRATION ACTS

Heard at Field House in London
Decision & Reasons Promulgated
On 9 September 2019
On 16 October 2019

Before

UPPER TRIBUNAL JUDGE HEMINGWAY

Between

A
(Anonymity dIRECTED)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms T Bond (Counsel)
For the Respondent: Ms S Jones (Senior Home Office Presenting Officer)

DECISION AND REASONS
1. On 5 October 2017 the claimant entered the UK, with limited leave, as a student. It is formally recorded that he claimed international protection on 10 November 2017. On 11 May 2018 the Secretary of State curtailed his student leave and refused his claim for international protection. The claimant appealed to the First-tier Tribunal (the tribunal) but on 30 July 2018, following a hearing of 21 June 2018, it dismissed his appeal. The claimant obtained permission to appeal to the Upper Tribunal and, on 11 February 2019, I set aside the tribunal's decision, without preserving any of the findings and conclusions, and directed that the decision on the appeal be re-made by the Upper Tribunal after a further hearing. My reasons for setting aside the tribunal's decision are contained in my written decision of 11 February 2019 and it is not necessary for me to repeat those reasons here. But, put simply, I had concluded that the tribunal's adverse credibility conclusions were unsound. The hearing for the purposes of the re-making of the decision took place before me on 9 September 2019. Representation at that hearing was as stated above and I am grateful to each representative. I heard oral evidence from the claimant, given with the assistance of an interpreter whom he appeared to understand throughout the course of the proceedings, and then I received oral argument from the representatives.
2. I have decided to continue to grant the claimant anonymity in these proceedings. Anonymity was originally granted by the tribunal and, although the matter was not specifically addressed before me, it does seem to me appropriate to continue the status quo.
3. Turning then to the background circumstances, the claimant was born on [~] 1999. He is, therefore, currently aged nineteen years. He is, it is accepted, a Palestinian national who has resided with his family in the Lebanon, where he was born, under the protection of the Lebanese authorities and with residency status. Specifically, he lived in the Lebanon with the protection of the United Nations Relief and Works Agency for Palestinian refugees in the Near East.
4. As to the account said by the claimant to underpin his claimed entitlement to international protection he says as follows: he had decided that he wished to study abroad. He was issued with a passport by the Lebanese authorities and applied for a visa which would enable him to come to the United Kingdom (UK) as a tier 4 student migrant. But he says that prior to securing leave and coming to the UK he had gone on a scout trip to a place called Elkhaium Kharoub in the company of some fellow scouts. There was, at the camp, another group of individuals consisting of some ten persons in total. His application for a visa was successful and he entered the UK on 5 October 2017, intending to take up a place he had obtained at a university in Sunderland. But shortly after he arrived in the UK, in fact on 31 October 2017, his father was arrested by the Lebanese authorities and questioned about what the claimant had been doing at the scout camp. The claimant says that the Lebanese authorities suspected that, whilst at the camp, he had been taking part in military training with a view to his fighting against the forces of Hezbollah. His father was released from detention shortly after his apprehension and telephoned the claimant to inform him what had happened. The relevant telephone conversation took place on 2 November 2017. At some point shortly after that the claimant was expelled from the university. The claimant says that he was prompted to seek international protection as a result of his learning about his father's apprehension and questioning and because he fears that the Lebanese authorities will now persecute him upon return.
5. It follows from the above that credibility is a central issue in this appeal. So, I have found it necessary to consider whether, to the lower standard of proof applicable in international protection cases (the real risk test) I am able to accept the claimant as a credible witness. In undertaking that assessment, I have taken into account all of the oral evidence I have heard, all of the documentation before me, including that which was before the tribunal when it heard the appeal, and additional documentation which has been provided subsequently, as well as the submissions of the two representatives. I have reminded myself that I should be cautious in rejecting, as incredible, an account offered by an inexperienced and anxious asylum seeker. I have reminded myself that I should not regard an account or a part of an account as being incredible merely because it might at first blush appear so when viewed from a UK-based perspective. Irrespective of the order in which matters are set out below, I have considered all of the evidence, together, as one composite whole. I now set out my credibility assessment below.
6. A key component of the claimant's account is that he fell under suspicion because of his attendance at a scout camp which was also attended by ten other persons who the group he had been attending with had had no involvement with (paragraph 15 of the claimant's witness statement of 12 August 2018). On the claimant's own account, he had not been of any adverse interest to the Lebanese authorities or Hezbollah in the past. It would have been relatively easy for the authorities to have established that the trip the claimant had attended was a genuine scout trip. Against that background I do not consider it credible that the authorities would, essentially without direct evidence, suspect the claimant of the sorts of activities he claims they did.
7. The claimant, in his substantive asylum interview of 2 May 2018, was asked questions about his claim that his father had been arrested by the authorities in the Lebanon and had been questioned. He provided information about the claimed arrest of his father in a passage running from question 49 to question 57. He was asked whether his father had been beaten or physically abused and his recorded reply is "I have no idea whether he had received any abuse or beating I have no idea". I think that if there had been such an arrest and a subsequent discussion or discussions about it (over the telephone or by electronic means) between the claimant and his father he would have known whether his father had suffered any ill treatment or not. I believe with respect to a matter of such gravity he would have been keen, if such had occurred, to establish all of the details. I find his assertion that he had "no idea" about that to be unpersuasive.
8. It is the claimant's account that his father was arrested but, after being questioned, released shortly afterwards. The claimant also asserts that his father has not been the subject of any further adverse interest from the authorities (see his answers to questions 119, 120 and 121). The claimant is effectively asserting that despite not having had any involvement with anything untoward at the scout camp the authorities or Hezbollah will persecute him upon return. First of all, it seems to me that if the authorities would be inclined to take such an aggressive approach to him they would not have simply released his father after a short period as claimed. Secondly, it seems to me that if they are as keen to apprehend the claimant as he suggests, they would have kept his father in custody and informed his family in the Lebanon that he (that is the father) would be released if the claimant gave himself up. Thirdly, it seems to me that if the authorities truly did take the moderate and restrained stance with respect to his father that he says they did, they would take a similar considered approach with respect to their suspicions about him rather than simply assuming he had been acting against them purely on the basis of his attendance at a scout camp.
9. The claimant, in his witness statement of 12 August 2018, said that after his father's arrest and release "some men who we believe are from Hezbollah visited my home again and again and they asked my family what they knew about me joining a military training group". That, to my mind, sits unhappily with what he had to say in his substantive asylum interview which, as noted above, was to the effect that his father had not encountered any further problems from Hezbollah or the Lebanese authorities and that neither had gone to the family home (see his responses to questions 121 and, in particular, 122). It is perhaps worth setting out the record of the latter question and answer. The claimant was asked:
"122. After your father was released the authorities or Hezbollah have not come to the house? Is that right"
"No they haven't come".
10. That does seem to me to be a stark inconsistency. I appreciate that the statement I have in mind was given after the substantive asylum interview which raises the possibility of intervening events. But since the claimant's father had been released, according to the claimant, towards the latter end of 2017, it seems most improbable that there would have been no visits to the family home by May 2018 but there would then be a flurry of such visits in the period of relatively short duration between the substantive asylum interview taking place and the witness statement being prepared. In any event that inconsistency was specifically identified by the tribunal in its decision of 30 July 2018. Of course, I have set aside that decision and all of its findings but the point I am making is that the inconsistency was identified so it would have been in the mind of the claimant and his representatives, but it has not been subsequently dealt with (see paragraph 30 of the tribunal's written reasons of 30 July 2018).
11. The claimant has consistently asserted that he believes he will be subjected upon return to persecution or serious harm. He stated matters quite starkly in his substantive asylum interview. He was asked at question 38 what he feared would happen if he were to be returned and his recorded reply is "if I went back to Lebanon then will be subjected to extreme violence at least and also could be death or imprisonment for life". If that were to be true then matters could hardly be more serious for him. Later in the same interview, when the claimant was being asked about the witness statement he had given and what was perceived to be an important omission in it, he said of that statement "I've read it but casually" (see question 113 of the substantive asylum interview). When it was put to him that it was implausible he would only read such a document casually he gave what I find to be a rather confusing reply (question 115). But anyway, if he genuinely feared treatment of such extreme severity it is, in my judgment, entirely implausible that he would not familiarise himself completely with the content of such a statement made for the purposes of pursuing his claim and, therefore, avoiding such treatment. There is an inconsistency between the extent of his claimed fear and his apparently casual approach to a document relevant to his application to be permitted to remain in the UK in order to avoid such fears being realised.
12. The claimant has provided a witness statement said to have been made by his father. I have decided that I am only able to accord this witness statement very limited weight. Firstly, what is said in the statement was not tested in cross-examination. I appreciate that that is not the claimant's fault. I do not see how, practically speaking, it would have been feasible to have him cross-examined at the hearing before me. At least, making such arrangements would in all probability have been fraught with difficulty and complexity. But the fact remains that the content of that statement is untested. Further, the document is strikingly brief. The information given about the questions asked of the father in the course of what he refers to as "interrogations" is really very generalised. If he had truly been interrogated I believe that he would have been willing and able to give more detail about the content of the questions put to him and would have actually done so in a statement he would have known was being used to support his son's bid for sanctuary. If he could prepare a statement at all there would seem to be no reason why he could not and would not wish to prepare a detailed one. So, I have concluded that the claimant does not derive significant assistance from that statement.
13. The claimant has provided two letters said to have been written by the Palestine Liberation Organisation. The letters are brief. Both are said to have been written on 14 January 2018 and both contain largely similar content. What was said in the two letters could simply have been said in one and it is odd that that was not done. Further, one of those letters, on my reading, says that the "popular committee" of the Palestine Liberation Organisation actually visited the claimant's family's residence, at the request of the Lebanese Intelligence Army, to tell the claimant to hand himself in to the authorities. The letter indicates, that during that visit, the popular committee was informed by the claimant's father that the claimant was "out of the country for education purposes in the United Kingdom". It is odd that no mention of this visit is contained in the father's own statement. I do not feel able to accord any more than little weight to those letters. Further documentation was provided for the purposes of the hearing of 9 September 2009 and that included documentation said to emanate from a lawyer acting on behalf of the claimant in the Lebanon. The documentation, which had also been translated in the Lebanon, suggested that the claimant remained a wanted person either as a witness or as a person accused of something. There is no explanation as to why such documentation could not have been obtained at an earlier stage. There is no evidence to verify that the author is a lawyer in the Lebanon. I do not discount the documentation but, again, I accord it only little weight.
14. There was an issue regarding the timing of the claim for asylum. That revolved around the circumstances which led to the claimant being suspended by the University of Sunderland and then being effectively expelled from the university. There was a suggestion that the claimant had or might have made his claim for asylum as a reaction to his expulsion from the university rather than as a reaction to his genuinely being of adverse interest in the Lebanon. Such might be suspected, of course, because of the likelihood of his student visa being curtailed in consequence of the expulsion.
15. When setting aside the tribunal's decision I had indicated that I would appreciate more evidence as to all of that. The documentary evidence now emanating from the University of Sunderland shows that the claimant was admitted as a student on 10 October 2017. However, he only attended classes from 10 October 2017 until 26 October 2017. He was sent what are described as "several written warnings", presumably regarding his non-attendance though he referred in oral evidence to other matters too, prior to his being suspended indefinitely on 6 November 2017. He was then expelled on 8 November 2017. I have taken that from a letter written by one S J Wood, a senior solicitor with the University of Sunderland, of 10 May 2019. The documentation also refers to his having received a warning for inappropriate behaviour, which appears to be a separate matter to the non-attendance issue, on 23 October 2017. There is also, as another separate matter, a mention of his having been arrested due to an allegation "of a very serious nature" but I have disregarded that because no prosecution was pursued. It is recorded that the claimant formally claimed international protection on 10 November 2018 which is when he attended for a preliminary interview, commonly referred to as a screening interview. But I accept he would have contacted the Home Office prior to that date in order to indicate his intention to make his application and, presumably, so that a screening interview could be booked. He himself says, as I understand it, that he was contacted by telephone by his father on 2 November 2017 and it was then when he was informed of his father's arrest and the adverse interest of the authorities in him. I do not detect any clear evidence as to the precise date upon which the claimant contacted the Home Office to intimate his intention to claim international protection. But I am prepared to accept it would have been prior to his actual expulsion from the university. Ms Bond argues that the sequence of events and timeline with respect to all of this is of particular importance. The point really is that the evidence does appear to suggest that the claim for international protection was made prior to expulsion. So, it cannot be said to have been made as a response to expulsion and with the simple aim of remaining in the UK as a matter of preference. But, as is apparent from the above, the claimant's situation at the university was somewhat precarious prior to expulsion anyway. He had had written warnings, there was a concern about his behaviour and also his non-attendance at classes, and he had received a final warning on 23 October 2017. Against that background it is clearly conceivable that he might have either become disenchanted with the university such that he did not want to attend it any more or he might have thought it was likely he would be expelled anyway. I am not saying that I positively take a point against the claimant with respect to his credibility, through his applying for international protection at a time his continued place at the university was under threat. I am simply saying that, against the above background, he does not gain positive support as to his credibility through his having made a claim for international protection prior to his actual expulsion.
16. In light of all the above I have concluded that I am not able to accept the claimant as a credible witness even on the basis of the lower standard applicable in international protection cases. I have made my relevant findings of fact in light of that conclusion.
17. I find that the claimant is a Palestinian national born in the Lebanon and that he and his family members enjoy UNRWA protection there. I find that either the claimant did not attend a scout camp or, if he did, his attendance and participation in activities there was uneventful and did not lead to the Palestinian authorities or Hezbollah developing an adverse interest in him. I find that his father has not been arrested and questioned by the authorities as claimed or at all. I find that the claimant will not be persecuted or otherwise ill-treated upon return either by the Lebanese authorities or by Hezbollah.
18. In light of the above I have concluded that the claimant has not shown himself to be a refugee nor a person entitled to a grant of humanitarian protection. Similarly, he has not shown himself to be a person who will face a real risk of being treated in such a way as to bring about a breach of Article 3 of the ECHR. Accordingly, in re-making this decision, I dismiss the claimant's appeal from the Secretary of State's decision of 11 May 2018, refusing to grant him international protection.

Decision
The decision of the First-tier Tribunal has already been set aside.
In re-making the decision I dismiss the claimant's appeal against the Secretary of State's decision of 11 May 2018 to refuse him international protection.

Signed: Dated: 14 October 2019
Upper Tribunal Judge Hemingway

Anonymity
The claimant was previously granted anonymity. I continue that grant pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008. Accordingly, no report of these proceedings shall identify the claimant or any member of his family. The grant of anonymity applies to all parties to the proceedings. Failure to comply might lead to contempt of court proceedings.

Signed: Dated: 14 October 2019
Upper Tribunal Judge Hemingway

To the Respondent
Fee award
I make no fee award.

Signed: Dated: 14 October 2019
Upper Tribunal Judge Hemingway