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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2025-000093
	First-tier Tribunal No: PA/62893/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 28 ^th of March 2025

 

Before

 

UPPER TRIBUNAL JUDGE HANSON

DEPUTY UPPER TRIBUNAL JUDGE PICKERING

 

Between

 

LM

(ANONYMITY ORDER MADE)

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Ms G Patel instructed by Parker Rhodes and Hickmotts, Solicitors.

For the Respondent: Ms Z Young, a Senior Home Office Presenting Officer.

 

Heard at Phoenix House (Bradford) on 21 March 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 a decision of a judge of the First-tier Tribunal ('the Judge'), promulgated following a hearing at Bradford on 31 October 2024, in which the Judge dismissed his appeal against the refusal of his claim for international protection.

2.        The Appellant is a citizen of Senegal born on 10 January 1995 who is from the Balanta tribe.

3.        The Judge sets out his case at [4] of the determination, the evidence and submissions, and her findings from [30] of the determination under challenge. At [44 - 46] Judge writes:

 

44. The country evidence filed is either outdated or focused on the election protests and conflict. There are economic problems in Senegal, but the evidence does not show it is reasonably likely the Appellant as a healthy single man in his personal circumstances would be unable to survive in Dhaka to the extent, he meets the threshold for humanitarian protection. Given the wealth of country evidence considered by Mr Birch and filed before me, the absence of country evidence to show risks in Dhaka is in my view telling.

 

45. The Appellant is not a political activist and nor does he suggest he has any political opinion. Therefore, the evidence about the risk to political activists has little value in this case. On that basis I find he has failed to prove to the lower standard he could not return to Dhaka. The Foreign and Commonwealth office guidance is focused on the risks to British citizens and yet still does not suggest they cannot visit or live in Dhaka. It is of limited value in the context of this case. I find on the evidence the Appellant can return to Dhaka, which was his home for several years before he left Senegal and so internal relocation does not arise.

 

46. I therefore find the Appellant's refugee claim fails and so does his Articles 2 and 3 claim. For the reasons given above I find his claim for humanitarian protection also fails. It is agreed his private life claims both within the Immigration Rules and under Article 8 outside the Rules stand or fall with the protection claims. They are therefore also dismissed.

 

4.        The Appellant challenged the decision and permission to appeal was granted by another judge of the First-tier Tribunal on 8 January 2025, the operative part of the grant being in the following terms:

 

2. The grounds of appeal assert that the Judge erred in numerous respects in particular in regard to the appellant's ethnicity.

 

3. Having considered the grounds permission is granted on all matters raised. Having considered the grounds and the judgment as a whole I am satisfied that it is arguable that the decision is impugned by the claimed errors.

 

4. The grounds speal for themselves and need no further elucidation from me.

 

5.        The Secretary of State opposed the appeal in a Rule 24 response dated 21 May 2025, the operative part of which is in the following terms:

2. The respondent opposes the appellant's appeal.

 

GROUND 1

 

3. The grounds allege that the First-tier Tribunal Judge (hereafter referred to as FTTJ) erred by failing to take into account the appellant's vulnerability because of his ethnicity as a member of the Balanta tribe. This ground also alleges that the FTTJ failed to attach appropriate weight to the appellant's ethnicity, deemed a " significant theme throughout" the country expert Mr John Birchall's country report by the appellant's legal representative (please refer to [4] - [5] of the grounds).

 

4. The grounds at [4] specifically quoted an extract from the country expert:

 

"his ethnicity may also be a problem. His people are quite insular as I have noted African's seldom make mistakes when assessing someone's ethnicity'

 

He also is of a different ethnic group, and in West Africa this can be used to penalize you and lays one open to greater risks" (underline my emphasis) .

 

5. At the hearing, the FTTJ carefully recorded the submissions of the appellant legal representative at the appeal hearing (please refer to [27] - [29] of the First-tier Tribunal (hereafter referred to as FTT) decision).

 

6. The FTTJ noted the country expert's concerns regarding the appellant being vulnerable to exploitation and accepted that the appellant was vulnerable ([40] of the FTT decision).

 

7. The FTTJ accepted the appellant's " socio-economic background of fairly extreme poverty, destruction of his family unit and cross-border movement as described by him is consistent with his evidence..." at [31] of the FTT decision (please also refer to [39] of the FTT decision). The FTTJ considered that the appellant was likely to encounter discrimination (see [42] of the FTT decision).

 

8. The respondent submits that the FTTJ had assessed the evidence as a whole before concluding that the appellant did not qualify for international protection.

 

9. The FTTJ was entitled to express their concern about the " paucity of evidence" specifically addressing risk of harm to the Balanta tribe itself ([43] of the FTT decision) and recorded an " absence of country evidence to show risks in Dhaka [Dakar]" telling ([44[ of the FTT decision). With specific reference to the extract of the expert report quoted at [4] of this response, it should be noted that this was Mr Birchall's unsourced view. The FTTJ would have been aware of the subjective nature of this quote and would have been entitled to attach little weight to it.

 

10. The FTTJ also questioned the " missing evidence" about Balanta tribal members specifically in Dakar and the situation for internally displaced persons from the Balanta tribe in Dakar, Touba and Couga in the expert country report ([39] of the FTT decision). The FTTJ determined that if Balanta tribal members were generally living in "intolerable" conditions in Senegal, the country exert would have provided the sources to that evidence. Again, the respondent submits that the FTT was entitled to come to this conclusion.

 

11. The FTT at [38] - [39] of the decision noted that the appellant did not fit into any of the categories identified by the country expert as having specific problems in Senegal (where the country expert had provided extensive background evidence pertaining to the risk for those identified in those categories):

 

a.        Opposition political activists (where at [44], the FTTJ recognised that the appellant was not a political activist and that there was no evidence of him harbouring political opinions, see [44] of the decision),

 

b.        Members of the LGBTQ+ community,

 

c.         Children, and

 

d.        Females.

 

12. The FTTJ also determined that:

 

a. The appellant was a healthy male ([44] of the FTT decision),

 

b.        The appellant had spent his formative years of his life in Dakar ([41] of the FTT decision), and

 

c.         He had worked as a painter, decorator and also worked in a car wash whilst in Dakar ([41] of the FTT decision).

 

13. The FTTJ also referred to the US State Department report which highlighted that IDPs continued to return to their villages and that the " government generally respected rights related to movement and promoted the safe, voluntary, and dignified return, resettlement, or local integration of these IDPs and had policies and protections in line with UN principles on displacement" ([42] of the FTT decision).

 

14. With reference to Volpi & Anor v Volpi [2022] EWCA Civ 464 (05 April 2022) , [2] the respondent submits that:

 

a.        The FTTJ's decision was not " plainly wrong" or " rationally insupportable" and that the FTTJ gave a balanced consideration of the appellant's evidence. It is reiterated that the FTTJ had carefully recorded the appellant's legal representative's submissions at [26] - [29] of the FTT decision and addressed them in his findings at [30] - [46] of the decision,

b.        The weight attached to the material evidence was a matter for the FTTJ: the test is not whether the FTTJ gave a balanced account of the evidence before them. The respondent submits that the FTTJ did provide a balanced account of the evidence,

c.         The respondent submits that the grounds do not demonstrate that the FTTJ arrived at a conclusion no other reasonable judge would have come to.

 

15. The respondent submits that this ground is not made out and nothing more than a mere disagreement with the validly sustainable findings of the FTTJ.

 

 

GROUND 2

 

16. The grounds submit that the FTTJ erred in coming to conclusions on issues that were not put to the appellant (specifically regarding whether or not the appellant engaged in any Balanta rituals and how many he may have participated in before his departure from Senegal).

 

17. The comment by the FTTJ was specifically addressed to the expert and not the appellant.

 

18. The FTTJ was entitled to conclude at [36] that the expert had not explained how he knew whether the appellant had gone through any Balanta rituals and if he had, how many he had purportedly participated in given that there was no evidence that he had actually interviewed the appellant. The FTTJ also noted that there was no specific reference to any of the materials that were before him when compiling his report confirming whether the appellant had participated in any Balanta rituals prior to his departure from Senegal.

 

19. The grounds do not explain how the appellant's participation in Balanta rituals would have any bearing on his return to Senegal, given the FTTJ's acknowledgment that the respondent was not seeking to remove him to his home area in Senegal (please refer to [36] of the FTT decision).

 

20. The respondent further submits that the quote below from the country expert report is another example of an unsourced comment speculative and subjective in its nature and that the FTTJ was aware of this:

 

The above shows how much of his real culture the client has not experienced. It also shows us how different his ethnicity is to others in Senegal. This may make it difficult for him to as simulate and he may receive a less than friendly welcome.

 

If he does return to his natural place of birth, with little, if any, knowledge of his culture, then that may make his return a very difficult experience" (underline my emphasis, please refer to page 15 of the expert report).

 

21. The respondent submits that the grounds have not demonstrated that the appellant was any way prejudiced or disadvantaged by the comment by the FTTJ that the country expert had not sourced how he came to conclude that the appellant had participated in Balanta rituals.

 

22. The respondent submits that this ground is not made out.

 

GROUND 3

 

23. The grounds assert that the FTTJ had erred by referring to the capital of Bangladesh (Dhaka) at various points of the decision as opposed to the actual capital of Senegal (Dakar).

 

24. The respondent submits that when reading the decision as a whole, the FTTJ is referring to the capital of Senegal and not the capital of Bangladesh. The respondent submits that there is no materiality in this error. This error is merely typographical.

 

CONCLUSION

 

25. In summary, the respondent submits that the FTTJ directed themselves appropriately.

Discussion and analysis

6.        A person challenging a decision of a judge of the First-tier Tribunal must have regard to the guidance provided by the Court of Appeal in in Volpi v Volpi [2022] EWCA Civ 462 at [2], Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201 at [26], and Hamilton v Barrow and Others [2024] EWCA Civ 888 at [30-31], which we have taken into account.

7.        Ground 1 challenges the weight the Judge gave to certain aspects of the evidence when it is settled law that weight is a matter for the Judge.

8.        We find the Judge considered the evidence made available with the required degree of anxious scrutiny and has made findings supported by adequate reasons, which have not been shown to be outside the range of those available to the Judge or rationally objectionable.

9.        It is not disputed that the Appellant's ethnicity was a significant theme through the country expert's report but the Judge had proper regard to the report, as a reading of the determination clearly shows. The extract of the report at [4] of the Grounds does not establish legal error in the Judge's assessment having considered the report in full together with all the evidence available to the Judge.

10.    Whilst the Appellant would have preferred the Judge to have given greater weight to the evidence that he believes supported his case, that does not make out the weight actually given, which is supported by adequate reasons, was irrational.

11.    We find no material legal error made out in relation to Ground 1.

12.    Ground 2 asserts procedural unfairness, alleging the Judge erred in drawing conclusions on issues not put to the Appellant. There is a specific reference to [36] of the determination and comment upon the Judge's findings at [7] of the Grounds.

13.    The difficulty for the Appellant is that he fails to establish unfairness in the manner in which the Judge conducted the hearing, or assessed this issue, sufficient to amount to an error of law, let alone a material error. We agree with the analysis in the Rule 24 response above that this was not a matter arising from the Appellant's own evidence, as he had not raised this issue in his evidence, but more a comment upon the observations made by the country expert. That demonstrates the Judge did consider that material with the required degree of anxious scrutiny as we have found above. The Judge was entitled to make such comment or findings as were made upon that evidence. We find the Judge's finding that the author of the country report had failed to explain how he was aware of any rituals the Appellant had been through is a finding within the range of those open to the Judge on the evidence.

14.    Directions were given for the parties to file all the evidence on which they were seeking to rely prior to the hearing. This issue was raised in the Appellant's experts report. Nothing further was filed dealing with this point before the Judge from the Appellant. The Judge was entitled to analyse what had been provided. That is what the Judge did. It has not been established there was any legal obligation upon the Judge to do more, on the facts, or that the Judges approach denied the Appellant a fair hearing.

15.    We find no material legal error made out in relation to Ground 2.

16.    Ground 3 is totally without merit in terms of establishing material legal error.

17.    We accept it is an error of fact for the Judge to refer to Dhaka, which is the capital of Bangladesh, rather than Dakar, which is the capital of Senegal.

18.    We note Miss Patel's submission that this indicates a lack of anxious scrutiny by the Judge. We do not accept that submission but find what it does represent is a lack of care taken when proofreading the determination.

19.    The Judge was well aware that the country from which the Appellant originated, and in relation to whom the matters required determination, is Senegal. An informed reader when considering the determination as a whole will clearly understand what the issues were, to which country they related, and how the Judge had analysed the evidence in relation to that country. The country expert report the Judge considered in detail clearly related to Senegal.

20.    We find this is a typing error, compounded by a lack of care when proofreading, but no more.

21.    We do not accept that the Appellant had established material legal error in relation to Ground 3.

22.    Standing back and considering the issues in the round, we find the Appellant has failed to establish material legal error in the decision of the Judge sufficient to warrant a find the Judge has materially erred in law in dismissing the appeal.

Notice of Decision

23.    The First-tier Tribunal has not been shown to have materially erred in law. The determination shall stand.

 

 

C J Hanson

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

25 March 2025