Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/10432/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 8 March 2017
On 15 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE MONSON

Between

LN
(ANONYMITY DIRECTION MADE)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms H Foot (Counsel instructed by Hammersmith and Fulham Law Centre)
For the Respondent: Mr T Wilding (Senior Home Office Presenting Officer)

DECISION AND REASONS
1. The Appellant, who is a minor, appeals from the decision of the First-tier Tribunal (Judge S Aziz sitting at Hatton Cross on 31 October 2016) dismissing his appeal against the decision of the Secretary of State to refuse to recognise him as a refugee on the ground that he has a well-founded fear of persecution in Albania as a Muslim teenager who is being targeted for recruitment by an extreme Islamist group. The First-tier Tribunal made an anonymity direction in favour of the Appellant, and I consider that the Appellant should continue to have anonymity protection for these proceedings in the Upper Tribunal.
The reasons for the grant of permission to appeal
2. On 17 January 2017, the First-tier Tribunal Judge Shimmin granted permission to appeal for the following reasons:
(i) It is argued that the Judge failed to consider the evidence given by the appellant as that given by a minor (Ground 1).
(ii) It is further arguable that, when analysing evidence in relation to the appellant’s failure to mention the basis of his claim at an early stage and failure to give the names of his abusers the Judge had failed to demonstrate consideration of the framework of norms concerning child applicants for asylum (Grounds 2 and 3).
(vi) It is argued that the Judge did not adequately assess the evidence and submissions in respect of potential radicalisation by the appellant (Ground 4).
(v) With regard to Grounds 5, 6 and 7 the Judge has adequately supported the findings in respect of the Appellant’s false recruitment, radicalisation outside school and assaults etc and no arguable material errors of law are identified.
(vi) I grant permission on the above grounds numbered 1, 2, 3 and 4.
Relevant background facts
3. The Appellant is a national of Albania, whose date of birth is 10 January 2001. His account is that he was born and brought up in Albania. He last resided in Bathore, Tirana. His mother currently resides in Albania with his grandparents, while his father works in Greece.
4. His problems in Albania began when he started Year 8 of his school. He noticed groups of men would hang around outside the school. They approached him and began talking to him about Islam. They also encouraged him to go to the mosque. He was not the only child who was approached. The more interaction he had with these individuals, the more forceful they became. He also noticed that they carried knives to threaten people.
5. One day they informed him that he had to live his life as a Muslim and to follow their orders. He objected to this, and told them he did not want to. In response they slapped him and he ran away. After this he tried to avoid these people, but it was not possible as they would be waiting outside the school gates every day.
6. They attempted to recruit him again. They pushed him into a corner and threatened him with a knife. They then took him to a mosque in Bathore. He managed to slip out of the mosque when they were not paying attention.
7. Eventually they saw him again and asked him where he had been. Later that afternoon he got into a car with them. They took him to Kamez where they said that he would have to hit a man. Before he reached the man, the man saw what he intended to do and he began to hit him. The people who had brought him got out of the car and they began to attack the man. While they were attacking him, the Appellant escaped.
8. He continued to see the group on numerous other occasions. They took him to the mosque, and they told him that he had to stab a boy from his school. When he did not follow their orders, they would beat him up. As a result of these beatings, he sometimes travelled to his local hospital in Kamez.
9. There came a point when these unknown men informed him that they wished to take him to Syria. He decided to go and stay with his aunt in Burrel. While he was at his aunt’s house, he noticed that there were men looking at him, and he recognised these men from outside his school.
10. He then contacted his uncle in Tirana, and asked if he could work in his coffee shop. While he worked at this cafe, the same men would come and visit the cafe. He decided that he was no longer safe and he left Albania with his father.
11. In his witness statement, he said he had travelled to Bremen in Germany with his father. However evidence gathered from the British Embassy in Tirana showed that he left Albania on 16 September 2015 using his own passport, in order to fly to Istanbul in Turkey.
12. He flew to Ireland on a fraudulent Italian ID card. He was apprehended at the airport by the Irish authorities, and was placed in a children’s home for two months. He was then assigned to a foster family in Cork, and he was registered at a local school.
13. He did not get on with the family. So after being with the family for about one month and 10 days, he left them to come to the UK. Whilst out shopping with the family, he had noticed a place where lorries were parked, and he also noticed that the lorries had English number plates. On the day that he left the family, he pretended to go to school. Instead, he got onto a bus which took him to where the lorries were parked. He found a lorry, opened the door and got into it.
14. The lorry eventually arrived in what he now knew to be Richmond. He got out of the lorry, and lived rough for some 3 to 4 days. Eventually he ran out of money, and so he had no choice but to go to the police. He had made himself known to the police on 23 February 2016.
15. On 16 September 2016, the Respondent gave the Appellant leave to remain as an unaccompanied asylum seeking minor, but refused his claim for asylum. It was not accepted that unknown men had mistreated him and had attempted to recruit him to go to Syria. His credibility was damaged by his lack of knowledge in relation to these unknown people and their intentions, by various inconsistencies in his account, and by the respects in which his account was implausible. Among other things, it was considered to be lacking in credibility that these men were able to identify him as a Muslim and to target him because of his religious beliefs, when, by his own admission, he was not a practising Muslim. It was also considered to be inconsistent that he claimed that he had told these men that he did not practice the faith, but they had responded by telling him that he had to live his life as a Muslim.
16. It was considered to be lacking in plausibility that he did not know whether the school were aware of these men, yet he claimed that they came to the school every day both at the start and at the end of school. It was considered to be further lacking in credibility that his mother and father had no knowledge of these men attending the school every day, both in the morning and in the afternoon.
17. On the issue of risk on return, the people that he claimed to fear were non-state actors, and their actions were not sanctioned by the Albanian State. Sufficiency of protection was available to him. The Albanian authorities were taking active steps to prevent people from being recruited to fight in Syria, as was evidenced by the background information.
The hearing before, and the decision of, the First-tier Tribunal
18. At the hearing before Judge Aziz, both parties were legally represented. The Judge received oral evidence from the Appellant, and his oral testimony was extensively set out by the Judge in paragraphs [40] to [77] of his subsequent decision. His findings of fact were set out at paragraph [87] onwards.
19. At paragraph [92], the Judge said:
Looking at all of the evidence in the round (including the allowances which I have made over the fact that he is a child and the findings which I have made in his favour), I did not find the Appellant to be a credible or persuasive witness. I find that he gave a highly implausible account from “beginning to end”. I simply detail below my main adverse credibility findings.
20. At paragraphs [93] to [122] (comprising five closely typed pages) the Judge set out his main adverse credibility findings under the following topic headings:
(a) Failure to mention basis of claim until his second statement;
(b) Very poor knowledge of the agent of persecution;
(c) The Appellant does not fall into the radicalisation model of recruitment;
(d) Ample opportunity to abduct the Appellant and forcibly recruit him;
(e) Appellant’s school being unaware of radicalisation taking place just outside of school premises;
(f) Assaulted by men from the Islamist group;
(g) The Appellant’s mother’s failure to comment on the Appellant’s late arrivals from school;
(h) Manpower and resources used to target the Appellant;
(i) “All seeing all knowing” Islamist group and the Appellant’s mother’s ignorance of the Appellant’s internal relocation plans; and
(j) Travelling to the United Kingdom.
21. At paragraph [123] the Judge concluded that the Appellant had manufactured his entire claim: he had told the Tribunal “multiple untruths”.
22. At paragraph [128], he said he had some sympathy for the Appellant, as the false asylum claim did not originate from him. He found that he had not travelled from Albania to the United Kingdom on his own. It was most likely that an adult or several adults had orchestrated events, most likely in the mistaken belief that they were acting in the Appellant’s best interests. He did not accept that the Appellant’s parents were ignorant as to how the Appellant came to be in the UK.
The Hearing in the Upper Tribunal
23. At the hearing before me to determine whether an error of law was made out, Ms Foot applied at the outset for permission to argue the remaining Grounds of Appeal for which permission to appeal had not been granted. Mr Wilding did not oppose this application, and accordingly I granted Ms Foot permission to do so.
24. The additional Grounds overlap with Grounds 1 to 4 in that there is a common theme: the Judge’s approach to the assessment of credibility is erroneous in law as he has failed to comply with the legal framework relating to the assessment of asylum claims by children. In particular, he has not observed the UNHCR guidelines on international protection dated 22 December 2009 at paragraph 73:
Where the facts of the case cannot be ascertained and/or the child is incapable of fully articulating his/her claim, the examiner needs to make a decision on the basis of all known circumstances, which may call for a liberal application of the benefit of the doubt. Similarly, the child should be given the benefit of the doubt should there be some concern regarding the credibility of parts of his/her claim.
25. Ms Foot also referred me to the Home Office asylum policy guidance on determining children’s asylum claims at paragraph 16.4, on the topic of assessing credibility:
Case owners must take account of what is reasonable to expect a child to know in his/her given set of circumstances and in doing so taking account of his/her age, maturity, education and other relevant factors.
26. Another respect in which Ms Foot submitted that the Judge had erred in law was that he had failed to follow the guidance given by the Court of Appeal in HK v SSHD [2006] EWCA Civ 1037. Neuberger LJ, as he then was, said at paragraph [29]:
Inherent probability, which may be helpful in many domestic cases, can be a dangerous, even a wholly inappropriate, factor to rely on in some asylum cases. Much of the evidence will be referable to societies with customs and circumstances which are very different from those of which the members of the fact-finding tribunal have any (even second-hand) experience. Indeed, it is likely that the country which an asylum-seeker has left will be suffering from the sort of problems and dislocations with which the overwhelming majority of residents of this country will be wholly unfamiliar. The point is well made in Hathaway on Law of Refugee Status (1991) at page 81:
“In assessing the general human rights information, decision-makers must constantly be on guard to avoid implicitly recharacterizing the nature of the risk based on their own perceptions of reasonability.”
27. Neuberger LJ went on in paragraph [30] to cite with approval an observation by Lord Brodie that it is not proper to reject an applicant’s account merely on the basis that it is not credible or not plausible. To say that an applicant’s account is not credible is to state a conclusion. Rejection of a story on grounds of implausibility must be done “on reasonably drawn inferences and not simply on conjecture or speculation”.”
28. Neuberger LJ continued:
He (Lord Brodie) went on to emphasise, as did Pill LJ in Ghaisari, the entitlement of the fact-finder to rely “on his common sense and his ability, as a practical and informed person, to identify what is or is not plausible”. However, he accepted that “there will be cases where actions which may appear implausible if judged by…Scottish standards, might be plausible when considered within the context of the applicant’s social and cultural background”.
Discussion
29. Before he embarked on his findings of fact, the Judge devoted a number of paragraphs to the implications of the Appellant being a minor. At paragraph [88], he said he had taken into account the joint Presidential Guidance Note No.2 of 2010: Child, Vulnerable Adults and Sensitive Appellant Guidance: the Tribunal had to be aware that children often do not provide as much detail as adults in recalling experiences and they might often manifest their fears differently from adults.
30. He said he also made allowances in respect of the following:
(a) All of the circumstances which caused the Appellant to leave Albania which formed the basis of the asylum claim occurred when he said he was a minor;
(b) His interviews for the Respondent were conducted when he was a minor; and
(c) He was still a minor when he gave his evidence at the appeal hearing.
31. At paragraph [89], he said that in assessing what weight to attach to the information which the Appellant provided, he had also given consideration to the UNHCR guidelines on dealing with unaccompanied children seeking asylum, Section 55 of the Borders, Citizenship and Immigration Act 2009 and the UN Convention on the Rights of the Child.
32. At paragraph [90], the Judge agreed with Counsel for the Appellant that there were deficiencies in the way in which the substantive interview had been conducted. He agreed with Council’s observation that the Appellant gave a number of important but brief answers in interview, and the interviewing officer ought to have sought clarification. This was not done, especially at question 72, 76, 77 and 107. The Judge said that he bore this in mind when assessing credibility.
33. At paragraph [91], the Judge addressed a submission by Counsel for the Appellant that the Appellant had been consistent in his evidence and that this should be weighed in his favour when assessing credibility. The Judge said that he did not entirely accept her observation. He was prepared to accept that, for the most part, the Appellant had given consistent evidence. He took this into account. However, there were occasions when he was inconsistent, and the discrepancies in this evidence were detailed below.
34. Ms Foot, who did not appear below, acknowledges that the Judge gave an adequate self-direction on the implications of the Appellant being a minor, but she submits that he failed to follow this self-direction in practice. I do not consider that this submission stands up to scrutiny.
35. Ms Foot’s other line of attack also does not stand up to scrutiny. As will become apparent, the Judge’s approach was in conformity with the guidance given by Neuberger LJ in paragraph [28] of HK:
Further, in many asylum cases, some, even most, of the Appellant’s story may seem inherently unlikely but that does not mean that it is untrue. The ingredients of the story, and the story as a whole, have to be considered against the available country evidence and reliable expert evidence, and other familiar factors, such as consistency with what the Appellant has said before, and with other factual evidence (where there is any)
36. The error of law challenge is in essence no more than expression of disagreement with findings that were reasonably open to the Judge. So I do not find it necessary to address every single individual criticism made in the lengthy Grounds of Appeal. I will focus on those criticisms which Ms Foot developed in oral argument.
Failure to mention basis of claim until his second statement
37. It was only in the Appellant’s second witness statement dated 13 October 2016 that he made clear that his asylum claim was premised on the fear that if he was returned to Albania he would be recruited by an Islamist group to go and fight in Syria.
38. The Judge observed at paragraph [94] that, as was, “quite fairly pointed out by Ms Houillet”, the Appellant did not particularise this fear in either his asylum interview or in his first witness statement dated 14 June 2016. The Appellant only mentioned that the men wanted to take him to Syria so they could make a lot of money.
39. At paragraph [95], the Judge did not accept the Appellant’s explanation that he was not given an opportunity to explain the basis of his claim either in his asylum interview or when he made his first statement. For example, at question 68 of his asylum interview, he was asked what the men wanted him to do in Syria. The Judge held that if they wanted to recruit him so that could fight in Syria, there was nothing to prevent the Appellant from saying so in answer to question 68.
40. Ms Foot submits that this line of reasoning was not open to the Judge as the Appellant was a minor. This is not the case. The Judge has adequately explained why, despite being a minor, the Appellant could reasonably have been expected to mention the basis of his claim at an earlier stage.
Very poor knowledge of the agent of persecution
41. At paragraph [96], the Judge did not find credible that the Appellant could have been pursued by an agent of persecution in the form of an Islamist group for an academic year and more; that this group tried to indoctrinate him into their version of Islam; that he had multiple encounters with members of the group over a period of many months; and yet despite all of this, he could not name a single person from the group who he encountered and he did not know the name of the Islamic group they were from.
42. Ms Foot submits that the Judge has not taken into account the fact that the Appellant was threatened by the group, and he was very fearful of them. However, while it was an aspect of the Appellant’s account that he had been subjected to intimidation by the group, he also claimed that they tried to indoctrinate him. So there was persuasion as well is coercion. Against this background, it was open to the Judge to find that it was not credible that the Appellant did not know more about the people who were trying to win him over to their cause, notwithstanding the fact that he was only some 13 or 14 years of age at the time.
The Appellant does not fall into the radicalisation model of recruitment
43. At paragraph [97], the Judge referred to country information relied on by the Appellant’s Counsel in support of the proposition that there was a problem in Albania with some of its young men being radicalised and taken to fighting in Iraq and Syria, primarily by Islamic State and the Jabhat-Al-Nusra group. The Judge made specific reference to an article served by Counsel at the outset of the appeal hearing entitled, “Ethnic Albanian Foreign Fighters in Iraq and Syria”.
44. At paragraph [98], the Judge said that the Appellant’s case had always been that the Islamist group had attempted to indoctrinate him. But at no stage did he ever show any sign of being persuaded by their ideology, let alone agreeing to travel to fight in Syria or Iraq. On the contrary, his entire claim rested on the premise that, never having shown any sign of radicalisation or a desire to go to Syria/Iraq, he nonetheless feared that this Islamic group would forcibly abduct him against his will and take him to fight for some Jihadi-type group in the Middle East: “I find this to be implausible.”
45. At paragraph [99], the Judge observed that during closing submissions, Counsel for the Appellant conceded that she was unable to find any country information to support, “this model of recruitment” (the Appellant’s model of recruitment). The country information which Counsel had submitted referred to ethnic Albanians fighting in Iraq and Syria after (my emphasis) they had been indoctrinated. There was nothing in the country information which spoke of young boys being forcibly taken against their will to fight in the Middle East:
As stated, that an Islamic group would operate in Albania in the way that the Appellant claims, I find to be highly implausible.
46. Ms Foot submits that, because the Appellant is a minor, the Judge was wrong to treat the background information as undermining the plausibility of his claim. On the contrary, she submits that the Judge ought to have found the article was supportive of the Appellant’s claim, as it spoke of a well-integrated regional network of extremist entities in Albania which had led to about 500 ethnic Albanians from the Western Balkans travelling to Syria and Iraq since 2012.
47. Ms Foot‘s error of law challenge is misconceived. Just because the Appellant is a minor does not mean that the Tribunal should approach the background evidence selectively, only taking account of those parts of the background evidence which arguably support the minor’s asylum claim, and ignoring those parts of the background evidence which run counter to it.
48. Moreover, as is apparent from paragraph [99] of the decision, Counsel for the Appellant conceded that the article which she had produced was adverse to the Appellant’s case in that his claim did not fall within the model of recruitment which the article described. She conceded that she was unable to find any country information to support the model of recruitment implicit in the Appellant’s account.
49. The concession was rightly given. The article refers to Arabic Islamic foundations in Albania set up by Pan Nationalist movements and Islamist revivalists, which finance the building of hundreds of mosques and award educational scholarships to thousands of malleable (my emphasis) young Muslim Albanians. Many of these young men who took up these opportunities returned home from their studies in Arab and Asian religious institutions with a strong sense of spiritual identity and an eagerness to promote a puritanical form of Islam.
50. The article addresses the question of what age groups are most susceptible to recruitment for violent jihad. The answer is that ethnic Albanian fighters range in age from 17 to 70, and they are on average 30 years of age. The data suggests that the age group most susceptible to recruitment for violent jihad among ethnic Albanians is 21 to 25 years old.
51. The Judge has given adequate reasons for finding that the Appellant’s account is highly implausible when assessed against the background evidence. His approach is fully compliant with that sanctioned by the Court of Appeal in HK.
The Appellant’s school being unaware of radicalisation taking place just outside school premises
52. Ms Foot submits that the Judge’s adverse credibility findings on this topic at paragraphs [103] to [106] are a classic manifestation of the mischief identified in HK. She submits the Judge has wrongly assumed that school life in Albania is the same as school life in the United Kingdom, and the Judge ought to have accepted the Appellant’s explanation that in Albania teachers do not get involved in the lives of their pupils, and they are completely uninterested in what goes on outside the school precincts.
53. The Judge properly engaged with the Appellant’s evidence on this issue. At paragraphs [105] and [106] he gave reasons for not believing the Appellant’s explanation:
That a group of unknown men were able to stand some short distance outside school premises with guns and knives, that they approached schoolboys and tried to radicalise them and invite them to go to Syria, that they regularly beat up school pupils who they did not like, that some of the pupils even went missing, that all of this could have gone on during an academic year and go unnoticed by the staff and parents alike does not at all seem credible.
54. It was open to the Judge to find the Appellant’s evidence incredible for the reasons which he gave. He was entitled to rely on his common sense and his ability to identify what is and is not plausible. If some students went missing, the school could not fail to notice, as they would be absent from lessons. If students got beaten up, their parents or teachers were likely to notice their injuries and ask them how they got them.
The Appellant’s mother’s failure to comment on the Appellant’s late arrival home from school
55. At paragraph [110], the Judge notes that, during cross-examination, Counsel for the Respondent asked the Appellant if his mother did not show concern that he was arriving home from school much later than expected on the days when he had been taken away by the Islamist group. The Appellant replied that his mother had no such concern. The Judge said:
I simply do not find it credible that his mother would behave in this way towards him. At the time, the Appellant would have been a young teenage boy. It is reasonable to see that if he had not arrived home from school as expected, that as a parent, his mother would show concern and worry and that she would have raised the matter when he did eventually return home. The fact that this pattern of late arrival would occur on several occasions seems even less credible.
56. Ms Foot submits that this is another example of the Judge conducting his fact-finding exercise in a way which is deprecated by the Court of Appeal in HK: the Judge is wrongly projecting on to the Appellant’s Albanian mother Western European assumptions as to how a mother should behave. The way it is put in the grounds is that this is an issue which is “deeply personal” to the Appellant and his mother, and that the Judge failed to appreciate that an assessment of credibility can only be made on the basis of a complete understanding of the entire picture. The Tribunal was not in possession of information about their relationship and the mother’s personality.
57. I do not consider that the Judge’s adverse credibility finding is founded on an inappropriate cultural assumption. It is a finding based on the maternal instinct, which is universal. The burden of proof rests with an asylum claimant on all issues. The appellant did not bring forward background evidence about the culture and society of Albania which supported his account of how the adults responsible for his care and welfare, namely his parents and teachers, had apparently behaved and/or which supported his account of how school teachers in Albania characteristically behave towards their pupils. The Judge was entitled to rely on his common sense and his ability to identify what is and is not plausible.
Summary
58. For the reasons given above, no error of law is made out, either for the reasons given in the Grounds of Appeal or for the reasons given by Ms Foot in oral argument. In essence, the case put forward on behalf of Appellant is that the Judge should have believed him because he was a minor. The Judge has given adequate reasons for finding that the core claim is a complete fabrication, and there is nothing unfair in the comprehensive and transparent decision-making process which led to that conclusion.

Notice of Decision
59. The decision of the First-tier Tribunal did not contain an error of law, and accordingly the decision stands. This appeal to the Upper Tribunal is dismissed.

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 his 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

Deputy Upper Tribunal Judge Monson