Tribunal decisions

The decision

IAC-AR-AR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/13715/2016

THE IMMIGRATION ACTS

Heard at Royal Courts of Justice
Decision & Reasons Promulgated
On 27 March 2017
On 31 March 2017

Before

UPPER TRIBUNAL JUDGE FINCH

Between

Y P
(anonymity direction MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr. J. Trumpington of counsel
For the Respondent: Mr. E. Turfan, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant, who was born on 12 April 1984, is a national of Ukraine. It is his case that he arrived in the United Kingdom on 23 April 2004 and then remained here working without permission to do so. In June 2010 he was found in possession of a forged driving licence and he was subsequently sentenced to four months imprisonment and removed from the United Kingdom in November 2010.

2. It is also his case that he re-entered the United Kingdom hidden in a lorry in August 2010. He was arrested for possession of Class A drugs on 17 October 2016. This led to him being fined £400 and being detained under the Immigration Act 1971 pending removal from the United Kingdom.

3. The Applicant applied for asylum on 25 October 2016 on the basis that he feared persecution in Ukraine as a person who had evaded military service. It is the Appellant’s case that he undertook his initial military service in Ukraine between 2002 and 2003 and that he was only required to serve for 16 months, as opposed to 18 months, because he was carrying out duties as a border force soldier. However, in Ukraine men remain liable for additional military service up to the age of 55.

4. A substantive asylum interview was conducted on 21 November 2016 and a decision was made to refuse him asylum on 30 November 2016. He appealed and his appeal was dismissed by First-tier Tribunal Judge Greasley on 12 January 2017. He applied for permission to appeal to the Upper Tribunal and First-tier Tribunal Judge Keane granted him permission on 14 February 2017.

5. The basis for this grant of permission to appeal was First-tier Tribunal Judge Keane’s conclusion that First-tier Tribunal Judge Greasley had arguably misapprehended a crucial part of the oral evidence given by the Appellant at his appeal hearing.

Error of law hearing

6. The Appellant had not asked to be produced at the hearing but was well represented by his counsel. Mr. Trumpington provided the Tribunal with a copy of a typed note of the hearing on 6 January 2017 which had been drafted by counsel representing the Appellant at that hearing. This note was shared with Mr. Turfan. I also permitted both representatives to read and consider the record of proceedings made by First-tier Tribunal Judge Greasley. I asked Mr. Turfan if there was a copy of the previous Home Office Presenting Officer’s note of the hearing. He told me that there was no copy of any note on his file.

7. Counsel for the Appellant then made his submissions in support of his contention that First-tier Tribunal Judge Greasley had made arguable errors of law in his decision and reasons. He took me to the section of the Appellant’s substantive asylum interview and noted that the questions had not addressed the Appellant’s experiences in Ukraine in chronological order and, therefore, no clear account of events emerged from the record of the interview. He noted that, as a consequence, Howe & Co had to send a letter, dated 22 November 2016, which clarified his history and put it in chronological order. He added that the record of proceedings also indicated that the cross-examination failed to deal with the Appellant’s account in a sequential basis. This non-sequential approach was adopted by the First-tier Tribunal Judge in his decision and reasons. In addition, counsel noted that in paragraphs 10 - 39 of his decision and reasons the First-tier Tribunal Judge did not accurately reflect the Appellant’s account. For example, he said at paragraph 15 that the Appellant’s sister had “received” the Appellant’s call-up notice. This had never been his case and he had stressed that the notice had not been left with her as it had to be signed by the person to whom it was addressed. Neither did the events recorded in paragraph 37 accurately reflect the account given by the Appellant.

8. In reply, Mr.Turfan conceded that there was an element of doubt about what was said at the substantive appeal hearing during cross-examination. But he submitted that when considering the evidence given in the round the First-tier Tribunal Judge reached the correct decision. He relied on the fact that the Appellant had not applied for asylum until he was arrested in 2016. In any event, he submitted that any error in any credibility findings were immaterial as the Appellant would not be able to establish that he was entitled to international protection in the light of VB & Another (draft evaders and prison conditions) Ukraine CG [2017] UKUT 00079 (IAC). He also noted that the Appellant had not provided any evidence from his sister, who was a potential witness. Counsel for the Respondent replied on the issue of nationality and relied on paragraph 103 of VB & Another.

9. I agree with counsel for the Appellant that the question of credibility need to be viewed in the context of the answers given by the Appellant in his substantive asylum interview where the questions were not asked in a chronological order. For example, in his substantive asylum interview the Appellant was asked at question 49 “How did you find out that the police had come to your house?” and he replied, “I was at home in a room reading a book”. The at question 50 he was asked, “Why didn’t they take you then?” and he replied, “I heard the gate opening and looked out. I saw the local police officer and 3 military men with a folder and documents. I escaped through the window and garden”.

10. He had previously been asked in question 45, “So when you were called-up the second time, did you receive a letter?”. He replied, “When I was being called-up, I fled, I was in hiding. My sister saw the draft notice. They came to our home a few times and showed it to her. My full name was there and the date on which I had to report to the military office. They said that if I didn’t report I would be in prison for avoiding mobilisation and military call-up”.

11. Furthermore, in his witness statement, the Appellant clearly stated that his sister was not at home when the authorities first came to their home but she was there when they returned on a second occasion and was shown the call-up papers.

12. First-tier Tribunal Greasley concentrated on the Appellant’s oral evidence at the hearing when reaching his credibility findings. I have looked at the record of proceedings but the section which deals with the authorities coming to the Appellant’s home to deliver call-up papers is very difficult to follow as the questions being asked about the service of the Appellant’s call-up services are not recorded down the left hand side of the notes, in contrast to many other parts of the record of proceedings. Instead both questions and answers are recorded on the right had side of the record. It is possible to ascertain that some parts of the notes refer to questions as there is either a question mark or a direct reference to the appellant as “you” but both representatives agreed that the record was not clear.

13. In contrast, the note made by counsel previously representing the Appellant was very clear. It recorded that the Ukrainian authorities had first tried to deliver the Appellant’s call-up papers at the end of May 2014 and that he was at home on that occasion and ran away. It also recorded that the Appellant said that the authorities returned a week later and that on that occasion his sister was at home and was shown, but not given, his call-up papers. The note also showed that he said that neighbours had also seen the authorities approach his home on a third occasion when his sister was not at home. However, what First-tier Tribunal Judge Greasley found at paragraph 48 of his decision and reasons was that:

“In his cross-examination, the appellant initially stated that the authorities were trying to deliver mobilisation papers at the end of May 2014 and that on this occasion his sister was actually present at the property. However, moments later in his cross-examination the appellant stated that his sister was not present on the occasion that the authorities first visited. I find this consistency (sic) to be significant and which I find serves to undermine the appellant’s credibility”.

14. Mr. Turfan argued that the First-tier Tribunal Judge had looked at the evidence in the round before reaching his decision but did not refer to any particular passages in his decision which compensated for the findings he made in paragraph 48. In addition, any delay in claiming asylum or a failure to provide a witness statement from his sister were factors which could be taken into account by the First-tier Tribunal Judge in the future but were not determinative of his asylum claim.

15. I also agree with counsel for the Appellant that if the Appellant has been called up for further military service and had evaded his call-up this may have been recorded by the authorities. I note that in VB and another the Upper Tribunal found Professor Bowring to be an expert on which it could rely. I have also noted that in paragraph 103 they accepted that appellants would be checked against computer systems on re-entry to Ukraine. It also accepted that an appellant cannot be expected to lie if questioned by the authorities. In addition, it accepted evidence from the Australian Refugee Review Tribunal that if a person who has broken the law by evading the draft, their return to Ukraine is likely to attract the attention of the authorities – particularly if they enter Ukraine through official channels. In the light of this evidence, the new country guidance does not preclude the Appellant from potential entitlement to international protection.

16. Furthermore, there appears to be another Robinson obvious point within the decision and reasons. At paragraph 45 First-tier Tribunal Judge Greasley states:

“I do not accept that the appellant is a genuine refugee in need of urgent international protection. I find that the appellant has provided a fabricated account in relation to his military service in Ukraine. I do not accept that the appellant had previously undertaken training in the military in Ukraine”.

17. He gave no reasons for finding that the Appellant had not previously been called up to do military service. When doing so he did not refer to the objective evidence at C18 which indicated that in 2002-2003 a man of 18 would have been liable for military conscription if he did not qualify for an exemption. He also did not address the very detailed answers the Appellant had given about doing his military service to questions 17 to 25 of his asylum interview.

18. As a consequence, I find that the First-tier Tribunal Judge’s decision and reasons did contain errors of law.

DECISION

19. The Appellant’s appeal is allowed.

20. The decision by First-tier Tribunal Judge Greasley is set aside.

21. The appeal is remitted to the First-tier Tribunal for a de novo hearing before a First-tier Tribunal Judge, other than First-tier Tribunal Judge Greasley.

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.

Nadine Finch

Signed Date 27 March 2017

Upper Tribunal Judge Finch