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

A black background with a black square AI-generated content may be incorrect.

 

IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI- 2024-004725
Extempore	First-tier Tribunal No: PA /57416/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On the 18 February 2025

 

Before

 

UPPER TRIBUNAL JUDGE RINTOUL

DEPUTY UPPER TRIBUNAL JUDGE HOWARTH

 

Between

 

A H

(ANONYMITY ORDER MADE)

Appellant

and

 

The Secretary of State for the Home Department

Respondent

Representation :

For the Appellant: Ms F Shaw, Counsel, Shawstone Associates

For the Respondent: Ms S Nwachuku, Home Office Presenting Officer

 

Heard at Field House on 16 January 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 permission against the decision of First-tier Tribunal Judge Row, promulgated on 3 August 2024, dismissing the appellant's appeal against the decision of the Secretary of State made to refuse the appellant's asylum claim on 3 August 2023.

2.              The basis of the appellant's case is that he is at risk in Egypt because of his perceived support for the Muslim Brotherhood and also because he is a conscientious objector to national service. The appellant says also that he has been charged and tried in absentia and found guilty of crimes to which we will turn in due course.

3.              The Secretary of State did not accept that the appellant was perceived to support the Muslim Brotherhood, nor does she accept that there are court cases outstanding against him; or, that he had been summoned or that he had been tried in absentia and found guilty. The Secretary of State did however accept that the appellant would be a conscientious objector but did not accept that any punishment for that would result either in persecution or entitle him to humanitarian protection or would be in breach of the United Kingdom's obligations pursuant to Articles 2 and 3 of the Human Rights Convention.

4.              The judge heard evidence from the appellant. He also had before him a bundle which contained copies of arrest warrants and a court letter and also witness statements and a report of an expert, Dr Hafidh, who commented on the authenticity of the court documents and the summonses, to which we have already referred.

5.              Having set out the parties' cases, the judge then turned in his decision to the documents from paragraph 23 onwards, observing at 30, that the respondent had said that the witness had no qualifications in connection with authenticating documents, but at 31 the judge recorded that Dr Hafidh had said that there were no obvious errors in the documents. The format looks the same as official documents, the text looks correct, however he did not see the original documents. His conclusion is that he cannot vouch for their authenticity, but he can see no reason to doubt it. The judge then observed that it would have been possible to contact the court to ask if the documents were genuine and match court records and presumably the court could have done so and that this would have resolved the issue. The judge then directed himself so that he would put weight on the documents in light of all the other evidence.

6.              The judge then went on to address the issues of credibility , observing that there was no need to provide corroboration and rejecting at [39], some of the points taken against him in the refusal letter. The judge at [43], records that other matters did not affect his credibility but then from [44] onwards went on to identify matters which did, noting inconsistencies in what the appellant had said and what had been said in his witness statement from his father, and addressing also at [50] that it would have been possible to contact again the court to ask for memorandum of conviction as an Egyptian lawyer could have done so, albeit on instructions.

7.              The judge then turned to Section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 finding that the appellant's credibility was damaged by his failure to claim asylum in several safe countries, which he also concluded, went to the matter of plausibility.

8.              The judge concluded at [59] that there were matters which damage his general credibility and concluded that the appellant was not a reliable witness as to fact, found he was not associated with the Muslim Brotherhood nor had he been of any interest to the Egyptian authorities for perceived involvement with that or for any other reason, did not accept that the warrant had been issued and did not accept that he had left the country because of adverse interest in the authorities. He noted that national service is compulsory, but that the appellant was not perceived as a supporter of the Muslim Brotherhood, would not be perceived as an opponent to the regime and it would be a matter for him whether he undergoes national service or refuses to do so and if he refuses he may be prosecuted, but this would not engage international protection, referring to the respondent's CPIN on Egypt, Military Service, version 2.1, of March 2023.

9.              The appellant sought permission on what are in effect three separate grounds. Firstly, that the judge failed properly to take account of the expert report of Dr Hafidh. Second, as he erred in his application of Section 8 of the 2004 Act, in particular, failing to take into account that he had been under the control of an agent; and, ground 3, that the judge failed properly to deal with the risk to return due to his conscientious objection to military service, in particular, failing to note that objecting to military service is a matter which ought to be taken into account and failed to address whether refusal to undergo miliary service would be perceived as a political act and that he would be at risk from that.

10.          Permission to appeal was granted by Judge Dempster on 14 October 2004 focussing on the second ground but stating that the other grounds could be argued at the hearing.

11.          We heard submissions from both representatives. Ms Shaw submitted that the judge had failed properly to address the expert report and that it was, in his report in the concluding remarks at [52], clear that the expert had found that although documentation reports cannot vouch for or certify authenticity, nonetheless, he found that the likelihood was that the documents were authentic, and that they are highly likely to be genuine, with no reason present to doubt their authenticity based on current examinations for the reasons set out in his report, which include a meticulous examination of the documents.

12.          Ms Nwachuku for the respondent submitted that the judge had not said he could not put weight on the report but had identified issues that t needed to be resolved and that the expert had not had a clear picture. In particular, the expert had not seen the refusal letter and also the court document refers to paragraph 6/377 of the Egyptian penal code - which on the basis of the document provided, does not appear to relate to a section of the penal code, which is relevant to the terrorism offences, of which the appellant was, amongst others, was convicted. Ms Nwachuku submitted that the judge could not be criticised for his approach to the expert report in that he had taken evidence into the round and had given cogent reasons for rejecting the authenticity of the documents.

13.          We observe first that there was no reason for the expert, who was purely being asked to comment on the authenticity of the documents rather than somebody who was asked whether the legal provisions were correctly cited or to comment on the background situation in Egypt as a country expert is often ready to do, need necessarily be shown the refusal letter. In fairness to the respondent, perhaps he should have been but we do not consider that the main point that is made, which is that the section of the Criminal Code referred to - 6/377 - is not correct, is a sufficient basis on which it would be said that less weight should be attached to the expert's conclusion that it was highly likely that the documents were genuine.

14.          We consider that in light of the expert's very strong views as to the likelihood of authenticity and the apparent noting by the judge that they were not original documents but without the necessary qualification, that what he had were authenticated copies, in that the authentication by the Egyptian authorities was original, is a matter which coloured the judge's opinion and caused the judge to make an error of law. We consider, and this is not a matter which we reach lightly, that the judge did not properly address the import of the expert report.

15.          We turn next to the second ground. Ms Shaw for the appellant has submitted that the judge had not taken into account the fact that the appellant had said he claimed asylum in Greece and had not taken into account the appellant's evidence that he had been under the control of the agent, matters raised both in the appellant's skeleton argument and at paragraph 15 of the witness statement.

16.          Ms Nwachuku for the respondent drew attention to the fact of what had been said in the screening interview and that it was unclear whether this issue had been explored in evidence either before the judge or elsewhere and that bearing in mind the other findings of the judge the outcome would nonetheless have been the same.

17.          In response, Ms Shaw drew our attention to the respondent's review, which we have taken into account in reaching our decision. Despite Ms Nwachuku's best efforts, we are not satisfied that the judge did properly take into account the appellant's evidence either as to the fact that he had claimed asylum in Greece and the consequences of that which was that he was told that he was not being accepted or the fact that he was under the control of the agent. Whilst we bear in mind that it is not incumbent on the judge to deal with every piece of the evidence this is an important piece of evidence which was drawn attention to in the skeleton argument and also in the witness statement and ought to have been considered.

18.          We do not accept the submission that it would have made no difference and we do not consider that the point of plausibility is a relevant issue and although the judge does refer to the plausibility of the appellant's claim being affected by the fact that he had not sought asylum in a nearer country, it is difficult to see how in reality he could have done so given the countries that have land borders with Egypt could hardly be seen to be said to be safe countries and Turkey is not a signatory to the 1967 Protocol. Accordingly, we are satisfied that in this case the judge did err with regard to the assessment of matters pursuant to Section 8. We consider that that did form a material part of his assessment of credibility.

19.          We then turn next to the third ground, which relates to military service. The starting point here is that the Secretary of State has accepted that the appellant is a conscientious objector. There does not appear to be any doubt. The appellant given his age would be eligible for miliary service in Egypt, nor for that matter that there are, as set out in the relevant CPIN, a panoply of punishments available and that the punishments appear to be harsher in respect of those under 30.

20.          There are specific points to which we were taken in this as well as the fact that it is clear that there are harsher penalties for those under 30. In particular, we note what is said in the CPIN at Section 2, which is the treatment and conditions in military service. At Section 5 of the CPIN, it is noted that conscientious objection is not accepted except on political grounds and at Section 7, dealing with the attitude at 7.2 at point 2, that there is evidence that the Egyptian authorities consider that avoiding conscription is an act of political opposition, even if it is only done on political grounds. Further evidence says that it is seen as an act of political dissidence, particularly paragraph 7.2.3.

21.          In dealing with punishment for evasion, they said that there is a high likelihood of arrest and detention. In particular at 7.11, there is evidence, regarding to the punishment for conscientious objectors, is that they face greater risks for imprisonment and perhaps torture because miliary officers fear that such an act may have spread among bigger numbers of soldiers or conscripts who therefore lean towards harsher punishments for any objector.

22.          We deduce from this that somebody who is conscientious objector is at risk of being imprisoned for failure to serve, which is not in and of itself a breach of human rights norms nor does it necessarily amount to persecution. The point made is it is not the appellant's own political opinions or otherwise which are relevant. It is what political opinions are attributed to him by the authorities in the sense that refusing to do miliary service is seen as an act of defiance against the regime.

23.          We consider that in the light of that, that the judge's analysis is fundamentally flawed and fails to take into account that it is not the appellant's political opinions which matters but rather how he would be seen by the authorities in Egypt and what would flow from that which would, on the basis of the CPIN evidence, appear to include a risk of torture. That would clearly be a breach of Article 3 and needs a proper analysis.

24.          Taking all of these factors together we consider that the decision of the First-tier Tribunal Judge did involve the making of an error of law in that there are errors in the assessment of the appellant's credibility which are not cured by any submission that the result would have been inevitable. We consider that they are material. We also consider that there were errors with respect to the liability of the appellant to miliary service and what is likely to happen to him if, as is accepted, he is a conscientious objector.

25.          We canvassed the opinion of the respondent and the appellant's representatives and we are satisfied that as there will, in effect, have to be a fresh finding on all relevant facts of this case, that the appropriate course of action is to be remitted to the First-tier Tribunal for a fresh decision on all issues and that decision to be heard by a judge other than Judge Row.

Notice of Decision

1.              The decision of the First-tier Tribunal involved the making of an error of law and we set it aside.

2.              We remit the appeal to the First-tier Tribunal to be heard by a judge other than Judge Row. For the avoidance of doubt, none of the findings of fact are preserved.

 

Signed Date: 12 February 2025

Jeremy K H Rintoul

Judge of the Upper Tribunal