United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-004567
	First-tier Tribunal No: PA/01718/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

18 ^th February 2025

 

Before

 

UPPER TRIBUNAL JUDGE HANSON

DEPUTY UPPER TRIBUNAL JUDGE WILLIAMS

 

Between

 

KM

(ANONYMITY ORDER MADE)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: The Appellant in Person

For the Respondent: Mr A Tan, Senior Presenting Officer

 

Heard at Manchester Civil Justice Centre on 10 February 2025

 

Order Regarding Anonymity

 

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity. No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court .

DECISION AND REASONS

1.              The appellant appeals with the permission of Judge Shepherd against the decision of Judge Alis. By a decision promulgated on 9 ^th August 2024, Judge Alis ('the Judge') dismissed the Appellant's appeal against the respondent's refusal of his claim for international protection.

Background

2.              The appellant is a national of Botswana who entered the United Kingdom on 25 ^th December 2022, and made a protection claim on the same day. The claim was advanced on the basis that the appellant was at risk on return to Botswana as a bisexual man, and also because of his refusal to participate in rituals his father ordered him to undertake. The appellant further claimed his wife had been kidnapped, and that there would be further risk as he had failed to pay the kidnapper for the return of his wife.

3.              The respondent refused the protection claim on 22 ^nd March 2024, for a number of reasons. The respondent, whilst accepting the appellant's Motswana nationality and identity, did not accept the appellant was a bisexual man, nor did she accept he was of adverse interest to his father, his father-in-law, or to the putative kidnappers of his wife. The refusal indicated that even were the appellant found credible in respect of his fear, he could seek the protection of the authorities or relocate internally within Botswana.

4.              The respondent further considered the appellant was not entitled to humanitarian protection, and refused the appellant's human rights claim, having concluded that there would not be very significant obstacles to his re-integration into Botswana, and that there were no reasons to grant leave to remain outside the Immigration Rules on Article 8 grounds.

The appeal to the First-tier Tribunal

5.              The appellant exercised his right of appeal to the First-tier Tribunal, and his appeal was heard by the Judge at Manchester on 25 ^th July 2023. The appellant appeared as a litigant in person, and the respondent was represented by a Presenting Officer. The judge heard oral evidence from the appellant who was assisted by a Herero interpreter. The appellant was cross-examined and the judge then heard submissions before reserving his decision.

6.              In his decision, the Judge found, as a result of a number of inconsistencies within the evidence, that the appellant was not credible. The Judge considered the discrepancies identified and rejected the appellant's evidence that these were the result of his own poor memory and the lack of an interpreter at his interviews with the respondent. The Judge further found the appellant had been vague in elements of his claim, and that his evidence that his father was a born-again Christian and yet at the same time was involved in rituals involving necrophilia, was implausible.

7.              The Judge found that there was no evidence as to why the appellant could not live elsewhere in Botswana, in the absence of evidence that his father is powerful, and when the appellant's health, young age and ability to 'carve out a life for himself' were considered. The Judge concluded that the Refugee Convention was not engaged, and for the same reasons, the appellant was not entitled to humanitarian protection.

8.              The Judge noted 276ADE and Article 8 had not been raised as issues in the appeal before him but concluded in any event that there would be no 'very significant obstacles' to the appellant's reintegration into Botswana, and that his removal from the United Kingdom would not, in all of the circumstances, be disproportionate.

9.              The appeal was consequently dismissed on all grounds.

The appeal to the Upper Tribunal

10.          The appellant applied 'in-time' for permission to appeal from the First-tier Tribunal. The appellant's grounds were not particularised, however in summary submitted there needed to be a 'thorough assessment' of his case, and also that the size of Botswana meant it would be easier for him to be located. He further submitted that the local authorities neglected cases such as his.

11.          The application for permission to appeal came before Judge Shepherd who observed, in relation to the grounds filed by the appellant that '...the application instead appears to seek an opportunity for the appellant be able to reargue his case. There is no reference to the Judge's decision and which, if any, of his findings are being challenged and on what basis.'

12.          Despite this description however, the grant of permission was not limited, and further, Judge Shepherd made the following observation:

Having said that, I note the Appellant is unrepresented and there does appear to me to be a 'Robinson obvious' ground of appeal in that the Judge has not properly assessed, or made any findings in relation to, the letters and other documents relied on by the appellant. Rather, at [46], the Judge simply says:

"He produced a document from the Botswana Police Service stamped 19 November 2019. He also produced a handwritten letter stamped 5 December 2020. These documents must be considered in the round".

No reasons are given following this paragraph as to what the Judge made of the documents or what, if any, weight he attached to them, in circumstances when the respondent had made specific submissions on the documents, recorded in [26]. This is an arguable error of law.

13.          It is on the basis that the appeal comes before us.

The Error of Law Hearing

14.          The hearing took place in person. The appellant continued to act as a litigant in person, and was assisted by Ms Mbunga, a Herero interpreter. The appellant and Ms Mbunga confirmed their mutual understanding and we did not observe any difficulties in communication or understanding during the course of the hearing. We outlined the scope of the hearing to the parties, i.e. that we were considering whether there was a material error of law in the Judge's decision.

15.          In order to assist the appellant, we heard first from Mr Tan. Mr Tan submitted that contrary to the grant of permission, it was clear the Judge had undertaken a proper assessment of the documentary evidence before him for a number of reasons. It was submitted that the consideration of the documentary evidence could not be looked at in isolation, but in context of the decision as a whole.

16.          First, the Judge had directed himself at [5] to the appropriate authority ( AHMED (Documents unreliable and forged) Pakistan * [2002] UKIAT 00439). The Judge then proceeded to make a number of adverse credibility findings in respect of the appellant's account which have not been the subject of challenge. These findings are detailed and consider the inconsistencies in the appellant's account, the discrepancies in the reasons for these inconsistencies, and the overall implausibility of aspects of the appellant's account.

17.          Secondly, Mr Tan submits the Judge makes reference to the documents at [46]. He then proceeds at [47] to say 'even if' he accepted the premise of the documents, there would be no evidence the appellant could not relocate internally. That finding is an indication the Judge had considered the documents as part of the overall evidential landscape, and any further examination of the documents would have resulted in the same outcome.

18.          In response, the appellant explained that he had, contrary to what the Judge had found, unsuccessfully relocated within Botswana, and Namibia, and had been located by his father in both places. As far as the reliability of the documents, both of the documents bore the stamps of the relevant authorities which was an indication that they were genuine, as only the authorities could stamp the documents in that way.

19.          At the end of the hearing, the appellant confirmed he had said everything he had wanted to say to us. We reserved our decision which we now give with reasons.

Discussion and Findings

20.          First, having observed that the grant of permission was not limited, we deal with the grounds as pleaded by the appellant. The appellant bore the burden of establishing that he could not relocate internally within Botswana, or that there would not be a sufficiency of protection available to him upon return. There was limited evidence on either of these issues before the Judge provided by the appellant. We find there is no merit in the grounds as presented, and they do not establish any material error of law in the decision of the Judge.

21.          In our consideration of the 'Robinson obvious' issue, we have reminded ourselves of what was said by the Court of Appeal at [2] of Volpi   & Anor  v Volpi [ 2022]  EWCA Civ 464, that 'an appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it'.

22.          It is not suggested that the Judge did not consider the documents relied on by the appellant. That could not be said as the Judge clearly had regard to them. At [46] of his decision, the Judge specifically mentions the document from the Botswana Police Service stamped 19 ^th November 2019, as well as the handwritten letter stamped 5 ^th December 2020. It is clear then that the Judge did undertake an assessment of these documents.

23.          Additionally, the Judge provided an additional self-direction as to how he was to consider these documents; i.e. that they 'must be considered in the round'. This self-direction is reflective of [38] of the wording of Ahmed, to which the Judge had referred himself to at [5] of his decision.

24.          Whilst we observe the Judge could have better expressed his conclusions on the documents, we do not find he had failed to have regard to them, or that they did not form part of his overall consideration of the evidence. The Judge had specified the documents and properly reminded himself of the approach he was to take to them.

25.          We also find there is some force in the submission made by Mr Tan, that the Judge immediately went on to express a conclusion on the documents, albeit an implied one, that 'even if' the appellant had reported his father, there was little evidence to suggest he could not relocate internally.

26.          Having considered the Judge's assessment of the appellant's credibility in its entirety, we do not find the Judge fell into error in what can only be described as his brief comment on the documentary evidence. The Judge clearly expressed a number of unchallenged concerns about the credibility of the overall account, and evidently did not find, in light of these concerns, that the evidence relied on by the appellant was reliable.

27.          Accordingly, we do not find that there is any error of law established within the decision of the Judge.

Notice of Decision

The appeal to the Upper Tribunal is dismissed. The decision of Judge Alis dismissing the appeal stands.

 

 

CJ Williams

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

11 ^th February 2025