Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/13627/2016

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On Thursday 2 March 2017
On Wednesday 8 March 2017

Before

UPPER TRIBUNAL JUDGE SMITH

Between

MR M A S A
(ANONYMITY DIRECTION MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms S Angeli, solicitor, Duncan Lewis & Co
For the Respondent: Mr L Tarlow, Senior Home Office Presenting Officer

Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
Anonymity was granted at an earlier stage of the proceedings. As the case involves protection issues, it is appropriate to continue the order for anonymity. 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.

DECISION AND REASONS
Background
1. The Appellant appeals against a decision of First-Tier Tribunal Judge M A Khan promulgated on 16 January 2017 (“the Decision”) dismissing the Appellant’s appeal against the Secretary of State’s decision dated 2 December 2016 refusing his protection and human rights claims. The appeal against the Decision relates only to the protection claim.
2. The Appellant is a national of Egypt. He was granted a visa to enter the UK as a visitor but refused leave to enter when he attempted to enter on 22 October 2016. He claimed asylum on 25 October 2016. The focus of his protection claim is that he volunteered for a charity in Egypt and collected charitable donations for them. He says that he subsequently discovered that the charity supported the Muslim Brotherhood and that, as a result, a number of persons associated with the charity were arrested. He now says that he is wanted by the authorities on this account. He says that there is an arrest warrant issued against him.
3. The Appellant was not accepted by the Respondent to be credible. The Judge too dismissed his appeal on the basis that he found the Appellant not credible.
4. The Appellant challenges the Decision on three grounds. First, he says that the Judge failed to take account of the background evidence which shows that the Egyptian authorities are targeting supporters of the Muslim Brotherhood, arresting, detaining and torturing them. Second, he says that the Judge erred in failing to adjourn his appeal hearing in circumstances where he said that he needed more time to obtain further documents in relation to the case against him from Egypt. Third, the Appellant says that the Judge failed to give him the benefit of the doubt.
5. Permission was granted by First-tier Tribunal Judge Bird on 27 January 2017 on all grounds.
Submissions
6. Ms Angeli adopted the Appellant’s grounds. In relation to the second of those, she submitted that the Appellant was not given a fair hearing because of the Judge’s failure to adjourn. This was not based solely on the refusal of the Judge to adjourn but that refusal coupled with the Judge’s finding thereafter about the arrest warrant. The Appellant had made clear that the adjournment was for the purposes of obtaining documents to supplement that documentary evidence because he recognised that the warrant itself did not provide adequate information.
7. Ms Angeli referred to the two bundles of additional documents which the Appellant seeks to adduce (if I find an error of law). She submitted that those include the very documents which the Appellant indicated he wished to obtain. She said that those would have made a difference to the Judge’s finding about the case being brought against the Appellant in Egypt. She accepted that the Appellant could put forward those documents in further submissions to the Respondent notwithstanding the failure of his appeal but submitted that he should not be required to do so in circumstances where the Judge acted unfairly in refusing the adjournment.
8. Ms Angeli accepted that the first ground regarding the background evidence could not be made out if the credibility findings against the Appellant were upheld. If it was not accepted that he was at risk as he claimed, the fact that the authorities target supporters of the Muslim Brotherhood is not relevant.
9. Ms Angeli directed my attention to [39] of the Decision regarding what is said to be a minor discrepancy in dates. She accepted that if the other credibility findings could not be undermined by the finding on the arrest warrant this may not be material as there are other adverse credibility findings which are not challenged. She said though that this showed that the Judge failed to give the Appellant the benefit of the doubt.
10. In response in particular to the second ground, Mr Tarlow directed my attention to the Appellant’s screening interview where the Appellant expressly asserted that he had never been accused of an offence and had never been detained. In that interview, which took place on 10 November 2016, the Appellant said he needed one month to get further evidence and yet, two months later, at the hearing, he was still saying that he needed a further month to obtain evidence. Mr Tarlow submitted that it was not therefore an error for the Judge to refuse to adjourn and it was not unfair for him to do so and then to find against the Appellant on the basis that the arrest warrant contained insufficient information. The Appellant had ample time to obtain documents prior to the hearing and had simply failed to make out his case.
11. Both representatives agreed that if I found a material error of law, the appeal should be remitted to the First-tier Tribunal. Although there are a number of credibility findings which are not challenged by the Appellant, Mr Tarlow accepted that if I found the second ground to be made out, the finding in relation to the arrest warrant would need to be revisited, the Appellant ought to be allowed to rely on the further documents now produced and his credibility would need to be revisited taking into account those further documents.
Discussion and conclusions
12. The main ground is that concerning the adjournment request and the finding relating to the arrest warrant since, as Ms Angeli accepted, if that ground is not made out, the other errors asserted are probably not material. The Judge dealt with the adjournment request at [7] of the Decision onwards as follows:-
“[7] Ms Angeli for the appellant made an application for an adjournment on the basis that the appellant seeks to obtain further documents from Egypt. She submits that these documents will contain exact charges, which are not stated in the arrest warrant and there will be further documents from the police and the Egyptian court. It is submitted these documents will show the appellant’s involvement with the Muslim Brotherhood. Ms Angeli submitted that it will take approximately a month to obtain these documents.
[8] Ms Fanthorpe for the respondent objects to the adjournment request on the grounds that it is not clear what these documents are, how they will assist the court and it is not exactly known how long it will take for them to reach the UK. The appellant is in detention and it [sic] better that there is a decision in this matter.
[9] Having heard both legal representatives, I refused the adjournment request on the grounds that the exact nature of the documents is not known or how long they will take to arrive. The appellant has already provided an arrest warrant, it is not known how further documents will assist the Tribunal.”
13. Having made a number of adverse credibility findings against the Appellant at [43] to [47] of the Decision based on inconsistencies in the Appellant’s evidence, the Judge turned to deal with the arrest warrant at [48] saying this:-
“[48] The appellant has provided an arrest warrant dated 26/10/2016. This arrest warrant does not state the appellant’s offence or reason for his arrest. In the round and having particular regard to the appellant’s overall credibility, I do not find that the arrest warrant establishes the fact that the appellant will be arrested on his return to Egypt.”
14. As a matter of fact, the Appellant accepts that the arrest warrant says only that he is wanted for “misdemeanours”. It does not show the nature of the offence. That was of course why the Appellant said that he needed more time to obtain additional documents. However, the Judge was therefore correct to observe both that the warrant did not state the offence or the reason for the Appellant’s arrest and that the Judge had already made adverse credibility findings based on the Appellant’s own evidence about these matters and the document produced did not undermine those findings.
15. The question which I am required to consider is whether it was unfair for the Judge to refuse to adjourn to allow the Appellant to supplement the documents in support of his case in this regard. As Mr Tarlow points out, the very fact of the Appellant’s case that he is wanted by the authorities is contrary to what he said in his screening interview that he had never been accused of an offence and had never been involved with or accused of being involved with any political or religious organisations ([Q5.3. Q5.5]). As such, the Appellant’s case as it developed already contained a serious inconsistency. Furthermore, as Mr Tarlow points out, in answer to Q6.2, the Appellant indicated that he needed one month to obtain the documents and yet, two months later, he had still failed to obtain those.
16. I accept Ms Angeli’s submission that the Judge was told what documents the Appellant wished to adduce or at least the nature of them. I also accept that the further documents which he now seeks to adduce include a court document (although the translation does not contain the Appellant’s name). However, in terms of timescales, the Appellant gave only an approximation of the time needed to obtain the documents and gave absolutely no indication why those had not been obtained to date, particularly given what he said at that screening interview about his wish to obtain them. It was for the Appellant to make his case and, at least in this regard, he failed to do so. The Judge was not obliged to give him more time to do so. The Judge has properly considered the request and provided reasons at [9] for rejecting it. Thereafter, as I have already indicated, the Judge made findings about the arrest warrant which were factually correct. However, for reasons based on the other evidential inconsistencies (and therefore unconnected with the arrest warrant), the Judge found the Appellant not to be credible.
17. I turn to deal with the third ground since this forms one of the other reasons for rejecting the Appellant’s credibility and it is possible therefore that an error in that regard could impact on the outcome of the appeal. Ms Angeli relies in this regard on [39] of the Decision. That paragraph recites the Respondent’s submission regarding an inconsistency in the Appellant’s evidence as follows:-
“[39] I first heard submissions from Ms Fanthorpe on behalf of the respondent, she seeks to adopt the reasons for refusal letter dated 02/12/2016. She submits that I should find adverse credibility findings on the appellant’s evidence. In the interview and in his written witness statement, the appellant stated that he gave dates of 17/10/2016 but in his oral evidence he said it was on 17/09/2016 he spoke to Mr [S]. The appellant has made up his evidence and therefore cannot remember the dates, he is seeking to back track on his claimed events. There is no evidence that the charity he claims to have volunteered for actually exists. The appellant said that he only supported Muslim Brotherhood spiritually but now claims that he was involved with them and attended demonstrations…..”
18. The Judge dealt with the confusion as to dates at [44] as follows:-
“In his asylum interview and his written witness statement, the appellant stated that he was informed by Mr [S] on 17/10/2016 that he was to be arrested by the Egyptian authorities for working for the charity which supported the Muslim Brotherhood. He states that he did not take Mr [S] seriously at the time but on the next day on 18/10/2016, his friend Mr [H] was arrested, he moved to a friend’s house in the same neighbourhood and began preparations for leaving Egypt. In his oral evidence the appellant claimed that these events took place on 17th and 18th September 2016. He said that he did not give the dates of 17th and 18th October 2016. One can expect that the appellant could have made a mistake in dates during the interview but I his own written statement made with his legal representatives, this same mistake as to dates would not arise. I find that these contradictions in the dates are as a result of the appellant inventing events which did not take place. He has made up these dates in order to made an asylum claim. I do not find the appellant’s evidence credible or consistent.”
19. The reference to the Appellant’s written evidence in this regard is at [24] of the Decision. The reference to his oral evidence on the point is to be found at [31] and following:-
“[31] The appellant said that as he stated in his asylum interview at question 60, it was Mr [S] who told him that an arrest warrant had been issued for his arrest. He said that Mr [S] told him that everyone who was involved with the charity was on the wanted list (vague and evasive). The appellant said that this was on 17/10/2016. He said that he did not take Mr [S] seriously but a day later his friend Mr [H] was arrested. The appellant then said that Mr [S] told him that everyone was wanted by the authorities on 17/09/2016 and not on 17/10/2016.
[32] It was put to the appellant that in reply to question 55 in the interview, he had stated that it was on 17/10/2016 that he was told by Mr [S] that he was to be arrested. In his written statement which he adopted, at paragraph 3 he has stated that it was on 17/10/2016 Mr [S] told him that he was to be arrested? The appellant said he stated that it was on 17/09/2016 Mr [S] told him that he was to be arrested. He said that at the interview he was assisted by an interpreter and he told him that his friend was arrested on 18/09/2016 and not on 18/10/2016. The appellant said that he has not made up his case to claim asylum in the UK.”
20. I did not understand Ms Angeli to submit that the Judge had misunderstood the evidence. This ground is prefaced in the written document only in general terms but appears to be put on the basis that the Judge should have given the Appellant the benefit of the doubt on what is quite a minor matter. I disagree. The Appellant’s case is that it was as a result of his contact with Mr [S] that he learnt that the authorities were interested in him because of his associations with the charity and that Mr [S] was arrested or disappeared which, along with the arrest of his friend, caused him to flee Egypt. The issue of when that took place was therefore not a minor matter. Further, it was not simply the date on which the Appellant gave inconsistent evidence but also the form of the meeting with Mr [S] (see [38] and [45] of the Decision). As the Judge noted at [45] the issues surrounding the Appellant’s contact with Mr [S] “go to the core of his claim”. The Judge was therefore entitled to find that this was not a minor inconsistency and to find the Appellant not credible, inter alia, on this account.
21. Further, in any event, the date and form of the contact were not the only inconsistencies. As the Judge noted at [46] and [47] of the Decision, the Appellant had changed his case in relation to his involvement with the Muslim Brotherhood. The Appellant also had family in Egypt who, according to him, also supported the Muslim Brotherhood but, on his case, were not targeted by the authorities. The Judge was entitled to rely on those and the other inconsistencies in the Appellant’s case as identified.
22. Having found the Appellant not to be credible on the facts of his own case, the first of the Appellant’s grounds cannot establish a material error. The relevance of the background evidence to the Appellant’s case is set out at (i), (ii) and (iii) of the Appellant’s grounds. The Judge noted at [41] that he had read that material and taken it into account. However, since he did not find credible the Appellant’s case that he was involved with or supported the Muslim Brotherhood, that background evidence showing the authorities’ attitude to their supporters can have no relevance.
23. For the reasons given above, I am satisfied that the Decision does not disclose any error of law. I therefore uphold the Decision.

DECISION
I am satisfied that the Decision does not contain a material error of law. The decision of First-tier Tribunal Judge M A Khan promulgated on 16 January 2017 is maintained.

Signed Dated: 3 March 2017

Upper Tribunal Judge Smith