Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/08879/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 20 April 2017
On 25 April 2017

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

LK
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr I Palmer, counsel instructed by Fadiga & Co
For the Respondent: Mr P Singh, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction
1. This is an appeal against the decision of First-tier Tribunal Judge J McMahon, promulgated on 6 December 2016. Permission to appeal was granted by First-tier Tribunal Judge Grant-Hutchison on 28 February 2017.
Anonymity
2. A direction was made by the First-tier Tribunal and this is repeated below.
Background
3. The appellant entered the United Kingdom on 25 July 2015, with leave to enter as a visitor, valid until 8 January 2016. She left this country for Albania on 2 August 2015, returning on 23 October 2015. The appellant applied for asylum on 25 January 2016. On 20 April 2016, the appellant’s son, B, was born.
4. The basis of the appellant’s asylum claim was that she was a police officer in Albania, who worked for the Border and Immigration Police at Tirana Airport. The appellant was threatened by a colleague after she refused to carry out illegal activities as part of her role. She did not report these approaches or the telephone threats she subsequently received to her line manager because the colleague concerned had said that something would happen to the appellant if she did so. The appellant became pregnant but her partner ended the relationship in September 2015 as he wanted no involvement with the child. After returning to the United Kingdom in October 2015, the appellant was informed that four of her colleagues had been arrested for abusing their powers and forgery of official documents. Her family told the appellant that she was also wanted in connection with these charges and they appointed a lawyer to represent her. The lawyer was told by the Albanian state prosecutors that there was an outstanding warrant for the appellant’s arrest. His applications for the appellant’s bail were either refused or ignored and his request for disclosure of the evidence against the appellant was not complied with. The appellant’s parents left Albania for France having received threatening telephone calls saying that the appellant should not return to Albania or give evidence against them.
5. In refusing the appellant’s asylum claim, on 8 August 2016, the respondent considered that there was no refugee Convention reason apparent. While the appellant’s identity and nationality were accepted, her claimed employment was not. The documents relied upon by the appellant were not considered to support her claim and reference was made to inconsistencies. In addition, adverse comment was made regarding the delay in the appellant seeking asylum since she became aware of the arrest of her colleagues. The respondent did not accept that the appellant would be at risk of being arrested and detained on false charges instigated by the Albanian mafia. Consideration was given to the fact that the appellant would be returning to Albania as a lone female with a dependent child, however it was thought that the appellant was educated, resourceful and resilient and thus in a good position to find employment to support herself and her child.
The hearing before the First-tier Tribunal
6. At the hearing before the First-tier Tribunal, only the appellant gave evidence. There was no reliance on Article 8 ECHR. The judge largely accepted that the appellant was a police officer at Tirana airport.
7. In reaching his decision, the judge referred to two inconsistencies, features of the case which he considered unlikely and the appellant’s failure to provide reasonably available documentation regarding the criminal prosecution. The judge concluded that the appellant had not given a reliable account of a false prosecution against her; that did not accept that she had been subjected to false accusations or threats by criminals or corrupt officials and that she would not be at risk of persecution or a breach of her rights under Articles 2 and 3 of the ECHR.
The grounds of appeal
8. The grounds of appeal in support of the application were twofold. Firstly, it was said that the First-Tier Tribunal misconstrued some of the documentary evidence in more than one respect and secondly, that there were a number of matters which the judge ought to have put to the appellant, out of fairness and that he made a number of errors of fact.
9. Permission to appeal was granted on the basis sought with the judge granting permission identifying five areas from the grounds where she considered it arguable that the judge misdirected himself.
10. The respondent did not file a Rule 24 response in this matter.
The hearing
11. Mr Singh apologised for the absence of the Rule 24 response as well as for the fact that there was no explanation for its absence. Other than that, he indicated that the appeal was opposed.
12. To summarise, Mr Palmer relied on the grounds of appeal. Initially he stated that there was no single glaring error, however by the end of his submissions he reached the opposite view. The glaring error being that judge had been led away from his core duties by being far too concerned with a lack of documentation when there was a wealth of credible documentary evidence supporting the appellant’s claim to be prosecuted and sacked from her role as a police officer. He argued that the judge’s finding that the appellant had not met the requirements of paragraph 339L of the Rules to provide “reasonably available documentation” was misconceived owing to its adverse effect on his assessment of the appellant’s credibility. The appellant’s lawyer in Albania had explained that he could not obtain any further documents and thus, Mr Palmer argued, it was hard to see what else the appellant could reasonably be expected to obtain.
13. Mr Palmer further contended that the appellant’s case involved a complicated issue regarding prosecution versus persecution and where there was a risk of unfair prosecution. Such a case deserved the most anxious scrutiny and he argued that the judge had not discharged that duty, despite it superficially appearing to be a fully reasoned decision.
14. In reply, Mr Singh argued that the judge made no error of law. He described the decision and reasons as full and thorough, submitting that findings were made on the evidence. He conceded that the appellant not being able to provide further documents may have skewed the judge’s credibility findings, but drew my attention to [60] of the decision, where the judge stated that he found it unlikely that the appellant’s lawyer could not obtain more documents. This had rightly raised doubts in the judge’s mind.

15. Mr Singh accepted that the judge did not, in his findings, refer to the appellant’s explanation for the fact that charges had been brought against her only after she left Albania on the second occasion but that this had been set out in his summary of the evidence before him at [49-50]. Referring to the inconsistencies mentioned at [56], Mr Singh argued that the judge was entitled to find that the appellant was not at risk of persecution.
16. Mr Palmer emphasised that the judge’s comments as to the lack of documentation failed to explain why this was material to his credibility findings. Had the judge expressed concerns whether the prosecution was continuing, this would have been a reasonable point, but he did not say this. His conclusion at [62] that the failure to produce all the court documentation meant that the appellant had not given a reliable account, was a non-sequitur.
Decision on error of law

17. At the end of the hearing, I announced that the judge materially erred in finding that an absence of documentary evidence undermined credibility of her claim. My reasons are briefly set out below.
18. The judge accepted at [63] that there was an ongoing prosecution of the appellant and as no further documentation was needed to prove that it made little sense that the absence of further documentation adversely affected her credibility. The issue before the judge was whether the appellant was subject to a malicious prosecution because of her refusal to become involved in corruption. I am inclined to accept Mr Palmer’s submission that it was irrational of the judge to reject the core of the appellant’s claim owing to the lack of more up to date documentation relating to the prosecution. There is no clear connection between the judge’s suspicion that further documentary evidence ought to be available and his finding that the appellant was not at risk of persecution by criminal elements.
19. There are multiple references to an absence of evidence throughout the judge’s findings of fact, yet there is no requirement for corroboration of an asylum-seeker’s account, Kasolo (13190)(IAT) applied. The bulk of the judge’s other findings concern matters of plausibility, some of which do not address the explanations provided by the appellant, adequately or at all.
20. Given that the most anxious scrutiny is required in the determination of asylum cases, I conclude that the findings were unsafe and must be set aside.

Conclusions

The making of the decision of the First-tier Tribunal did involve the making of an error of on a point of law.

The decision of the First-tier Tribunal is set aside.

The appeal is remitted, de novo, to the First-tier Tribunal to be reheard at Taylor House, with a time estimate of 3 hours by any judge except First-tier Tribunal Judge McMahon.

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.

Signed Date 20 June 2022

Upper Tribunal Judge Kamara