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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-005299
	First-tier Tribunal Nos: PA/54812/2023 LP/08258/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

18 ^th February 2025

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE SAINI

 

Between

 

AK

(ANONYMITY ORDER MAINTAINED)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr K Scott, Solicitor; Pickup & Scott Solicitors

For the Respondent: Mr K Ojo, Senior Home Office Presenting Officer

 

Heard at Field House on 31 ^st 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.               For the ease of comprehension, I shall refer to the parties as they were constituted before the First-tier Tribunal.

2.               The Secretary of State appeals against the decision of First-tier Tribunal Judge Latta allowing the Appellant's protection claim promulgated on 25 ^th September 2024. The Secretary of State applied for permission to appeal which was granted, on only two grounds, by First-tier Tribunal Judge Rhys-Davies in the following terms:

"4. There is merit in the points made at 1(b) and 1(c) of the Grounds at least.

5. It is arguable that the Judge's consideration of the Section 8 behaviour relied upon by the Respondent is inadequate or incomplete. The RFRL relies on the Appellant's long period of absconding after making his initial asylum claim, and not only on his having left the UK. At [27] the Judge accepts that the Appellant had only been out of the UK for a short period, but does not address the long period that the Appellant otherwise out of contact with the Respondent. This is conduct that on the face of it engages s8(2)(c) and requires consideration by the Judge (per KG (Turkey) [2022] EWCA Civ 1578).

6. It is also arguable that the Judge erred in his consideration of the letter allegedly from the Appellant's brother-in-law. As Ground 1(c) avers, that letter, like the letters from the Taliban, was not accompanied by a certified translation. The Judge disregarded the 'Taliban letters' for that very reason: [30] - [31]. However, despite the common issue regarding the translation, the Judge goes on to attach some weight to the brother-in-law letter at [33], because the source of the letter was corroborated by the witness SA. However, while reasons are not needed for reasons, the Judge does not explain how SA's evidence of collecting the letter has any bearing on the reliability of the contents of that letter.

7. As the Judge's positive credibility finding depended on his assessment of the evidence in the round [34], the points argued at 1(b) and (1)(c) are arguably material errors.

11. Permission is therefore granted on Grounds 1(b) and (c) only".

3.               The Appellant provided a Rule 24 response and a Rule 15(2A) application which was filed and served on the Upper Tribunal and the Secretary of State on 29 ^th January 2025.

Preliminary Matter

4.               Before the hearing, I indicated that I would deal with the Rule 15(2A) application given that the material presented by the Appellant may have a bearing upon the materiality of any error of law in respect of the second Ground of Appeal upon which permission was granted. Applying Rule 15(2A) to the facts of the instant appeal, I note that the Appellant through his solicitors has complied with sub-paragraph (a) and (a)(i) as the notice was sent to the Upper Tribunal and the Respondent and as it indicated the nature of the evidence. In respect of (ii) and the explanation for why the evidence was not submitted to the First-tier Tribunal, Mr Scott omitted to mention this in the written notice, but explained before me that the certificate from the translation firm that had translated the two documents from the Taliban and the letter from the brother-in-law (MN) was completed at the time but was not sent to the solicitors' firm by the translators and was only requested from them at a later date when it was realised that this material was not before the First-tier Tribunal. Mr Ojo did not object to the Certificate being admitted. I indicated to the parties that I was prepared to accept this explanation put forward and to admit the certificate of translation as it was contemporaneous to the translations that were before the First-tier Tribunal and as it would assist in confirming the accuracy of those translations before the First-tier Tribunal and as it appeared to be an oversight in it not being presented by the translation firm to the solicitors which led to the omission by the Appellant's representatives in presenting it to the Tribunal, which I am confident they would have done had they known of its absence at the time.

Findings

5.               At the close of the hearing, I reserved my decision, which I shall now give. I do not find that there is an error of law in the decision such that it should be set aside. My reasons for so finding are as follows.

6.               In respect of the first ground, namely that the judge failed to take into account a matter arising under section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, specifically with reference to the Appellant absconding from 3 ^rd November 2017 after claiming asylum, Mr Ojo sought to rely upon the decision referred to by Judge Rhys-Davies in granting permission, namely KG (Turkey) [2022] EWCA Civ 1578 at [18], [22] and [35] which essentially made reference to JT (Cameroon)  [2008] EWCA (Civ) 878 and the judgment of Lord Justice Pill which confirms it is mandatory for the deciding authority to take section 8 factors into account when assessing an Appellant's credibility and that a global assessment of a person's credibility is required.

7.               In respect of Ground 1, Mr Ojo noted that although the judge had accepted the Appellant's account of what had happened to him when he had left the country in 2021 and although the judge had accepted the Appellant's account as being present until 2021 (by reference to the GP's letter which confirmed he had been seen regularly by the GP and therefore was in country and also had accepted the letter from the Slough charity that confirmed the Appellant was using their address as a correspondence address), thus indicating that he was not absconding during that period, the judge had nonetheless failed to account for the period from November 2017 to 2019 when the Appellant had still absconded according to the Secretary of State's position as mentioned in the Reasons for Refusal Letter at page 96 of the composite bundle. Turning to those reasons in paragraphs 39 to 40 specifically, the refusal reads as follows in relevant part:

"39. You clandestinely arrived in the UK on 31 October 2017 and claimed asylum on the 1 November 2017. It is considered that you claimed asylum at the earliest available opportunity and claimed you feared risk on return due to your father being killed. It is noted from your Home Office record that you were considered as an absconder from the 03 November 2017, the Home Office concluded your asylum claim as Withdrawn - Absconder. You absconded for 3 years and did not contact the Home Office until the 04 August 2021, when you were encountered clandestinely re-entering the UK. In your initial screening interview in 2017 you claimed you feared return to Afghanistan, yet you did not try and legalise your stay in the UK for 3 years and 9 months.

40. In your Further Submissions interview conducted on the 30 June 2023 you were asked why you absconded; you state that in 2017 your asylum claim was accepted however your mental health was not in a good condition due to the travelling (SEF Q63). By absconding in 2017, you did not allow the Home Office to complete their consideration of your initial asylum claim. When questioned in your Further Submissions interview, you have failed to provide a credible reason why you absconded and why it took you 3 years and 9 months to re-contact the Home Office to try and legalise your stay in the UK, therefore delaying the resolution of your claim. Your actions in this respect are not considered to be the actions of a person who has indicated a risk to their safety in Afghanistan and who needs international protection.

41. It is therefore concluded that your behaviour is one to which section 8(2) of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 applies".

8.               As can be seen from the refusal letter, the Secretary of State did raise section 8(2) as being relevant, albeit she accepted that the Appellant claimed asylum at the earliest available opportunity in the same breath. In respect of section 8(2) of the 2004 Act, I note that the section applies to any behaviour by the claimant that the deciding authority thinks is relevant which can include behaviour that is:

(a)            designed or likely to conceal information,

(b)           designed or likely to mislead, or

(c)            designed or likely to obstruct or delay the handling or resolution of the claim or the taking of a decision in relation to the claimant.

9.               In respect of the allegations raised in paragraphs 39 to 41 of the refusal letter and the absconding, which is the only matter that the judge is complained to have not dealt with from 2017 to 2019, I cannot see that the absconding could arguably be seen to be designed or likely to "conceal information" or be "likely to mislead" and it is most likely relevant in terms of it being "designed or likely to obstruct or delay the handling or resolution of the claim or taking of a decision in relation to the claimant". In that regard, one might say that section 8(2)(c) is the "weakest" of all of the factors that could potentially apply under section 8(2) in having the ability to potentially damage the credibility of an applicant's asylum claim. In respect of section 8(2)(c), even if the absconding has delayed the resolution of the claim or the taking of a decision, for my part, I cannot see how this behaviour could have impacted upon the First-tier Tribunal's assessment of the Appellant's credibility to such an extent that the outcome of the appeal would have been different, notwithstanding that the judge had already found the Appellant's claim credible, having accepted his oral evidence and witness statement (see paragraphs 25, 26 and 32 of the decision). I note that the judge was exercised by the fact that the Appellant had attempted to cover the section 8 matters in his witness statement (see paragraph 3) and had made a positive assertion that he did try to stay in touch with the Secretary of State during the pendency of his protection claim. Thus, given that there was no challenge to the Appellant's assertions that he did try to stay in touch, and as the judge noted that there was no challenge by the Secretary of State to these positive assertions, I cannot see that it was not open to the judge to conclude as he did regarding the Appellant's account in his witness statement, nor that the section 8 matter would have altered the outcome of the credibility assessment. In arguing this point, Mr Ojo submitted that because the witness statement was drafted and signed before the Secretary of State drafted her review (which raised that section 8 was not accepted by her), this somehow meant that the Appellant's section 8 evidence was 'challenged'. Whilst that might be just about arguable as a semantic point, it is nonetheless incumbent upon the Secretary of State to put her case to an Appellant, especially in terms of any challenge to a person's credibility, and particularly where the individual has made a positive assertion in their witness statement that seeks to rebut the credibility challenges as raised in the refusal letter, so that they can answer the case that is maintained against them. Without such matters being put to the Appellant, one might say that the Secretary of State did not seek to press her case and has not tested the Appellant's evidence on the section 8 point, despite the fact that he attempted to rebut the credibility challenges via his witness statement. Aside from that, I also do not find that the section 8 delay in resolving the asylum claim could have had such an impact upon the judge's assessment as to alter the positive credibility findings and the outcome of the appeal, particularly given the lower threshold of risk that the Appellant needed to establish in his protection appeal, and given that the Appellant's claim to be in fear of the Taliban arising from a land dispute and other matters was found to be credible. Thus, the error, even if there is one, is immaterial. Thus, albeit there is scope to argue that technically the Tribunal has not grappled head-on with the absconding from 2017 to 2019, for the reasons I have given, I do not find that this omission would have made any difference to the judge's credibility findings at paragraphs 25, 26 and 32 in the Appellant's favour which accept his protection claim, and which the Secretary of State has not been given permission to challenge, in any event, which she did not seek to renew on appeal to the Upper Tribunal (permission having been granted on two grounds alone).

10.           Turning to Ground 2, Mr Ojo accepted that Ground 2 was the weaker of the two grounds and that both grounds needed to demonstrate errors of law to cumulatively point to a material error of law in the decision requiring it to be set aside in its entirety. In expansion of the grounds, Mr Ojo argued that the Presenting Officer before the First-tier Tribunal had challenged the documentary evidence as reflected at paragraphs 14 and 15 of the decision, which highlights an inconsistency pointed to in a date given on one of the letters purporting to originate from the Taliban. However, the Mr Ojo has not appreciated that the judge did not find in the Appellant's favour based upon the letters purporting to originate from the Taliban. Instead, the judge found that the witness who attended to confirm the provenance of a witness statement from the Appellant's brother-in-law (MN) was not challenged by the Secretary of State and the brother-in-law's letter, albeit unsigned, was only challenged in relation to its support of the Appellant's account (for my part, I do not see any significance in the letter not being signed as it was handwritten). In any event, given that the contemporaneous certificate of translation is evidence admitted before me pursuant to Rule 15(2A), I find that the judge's reliance upon the letter was apt, and it was open to him to conclude it gave a truthful account, given that the judge had already, separately, found the Appellant's account to be credible. Thus, the judge's acceptance of the letter from MN, is merely supportive of the credibility of the Appellant's account, as opposed to being determinative of it. In other words, even if the Secretary of State were right to criticise the judge for relying upon the letter (although I do not accept this submission as I have made plain), the Appellant's claim would still be credible and have succeeded given that the judge accepted his account which the Respondent has been unable to challenge in her Grounds of Appeal and as she has been unable to demonstrate any perversity in the judge's findings and that the conclusion he reached at paragraphs 25, 26 and 32 was not open to him. Thus, I do not find that there is any material error of law demonstrated in Ground 2 either.

11.           In light of the above findings, I do not find that there is any merit in any of the grounds and I do not find that there is any material error of law in the decision of the First-tier Tribunal.

Notice of Decision

12.           The decision of the First-tier Tribunal shall stand.

13.           The appeal to the Upper Tribunal is dismissed.

 

P. Saini 

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

 

14 February 2025