Aan (Veil) Afghanistan [Asylum and Immigration Tribunal]
| Jurisdiction | UK Non-devolved |
| Judge | The Hon Mr Justice Mccloskey,Mr C M G Ockelton,Grubb,Grubb UTJ,McCloskey J,C M G Ockelton |
| Judgment Date | 17 January 2014 |
| Neutral Citation | [2014] UKUT 102 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 17 January 2014 |
[2014] UKUT 102 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
The President, The Hon Mr Justice Mccloskey,
The Vice President, Mr C M G Ockelton
Upper Tribunal Judge Grubb
(Anonymity Direction Made)
For the Appellant: Unrepresented
For the Respondent: Mr Richards, Senior Home Office Presenting Officer
AAN (Veil) Afghanistan
(1) Where the face of a party or witness is substantially covered by a veil or other form of attire, it is incumbent on the Tribunal to strike the balance between the rights of the person concerned, the administration of justice and the principle of open justice. The Tribunal will consider options which should, simultaneously, facilitate its task of assessing the strength and quality of the evidence, while respecting as fully as possible the rights and religious beliefs of the person concerned.
(2) Such measures may include the following:
(a) A sensitive enquiry about whether the cover can be removed, in whole or in part.
(b) Where appropriate, a short adjournment to enable the person concerned to reflect and, perhaps, seek guidance or advice.
(c) The adoption of limited screening of the person and/or minimising the courtroom audience.
This is not designed to operate as an exhaustive list.
(3) In cases where a Tribunal considers that the maintenance of the cover might impair its ability to properly assess the person's evidence and, therefore, could have adverse consequences for the appellant, the Tribunal must ventilate this concern.
(4) Issues of religious attire and symbols must be handled by tribunals with tact and sensitivity.
The Appellant is an Afghani national, who arrived in the United Kingdom on 23 rd January 2009, claimed asylum and was granted discretionary limited leave to enter. He is now aged 20 years, having been born on 3 rd February 1993. This appeal has its origins in a decision made on behalf of the Secretary of State for the Home Department (“ the Secretary of State”) dated 4 th June 2009, whereby the Appellant's application for asylum was refused. By its Determination dated 4 th August 2009, the Asylum and Immigration Tribunal dismissed the Appellant's appeal. In due course, the Appellant's legal representatives applied on his behalf for an extension of stay in the United Kingdom on a discretionary basis. Within the same application, the solicitors concerned reasserted the Appellant's asylum application and invoked paragraph 339C of the Immigration Rules and Article 8 of the Human Rights Convention. As these representations demonstrate, the Appellant continued to profess a fear of proscribed treatment in the event of returning to Afghanistan.
Progress thereafter was rather sluggish, the evidence indicating a process of requesting and receiving further information, such as a marriage certificate, a witness statement and evidence of earnings. During this increasingly protracted period, the Appellant was convicted, on 24 th May 2012, of assaulting his wife, a British citizen. (His wife re-enters the narrative at a later stage: see infra). The index offence was assault occasioning actual bodily harm. The Appellant received a commensurate sentence of 21 months detention in a Young Offenders' Institution. In due course, on 12 th June 2013, the Secretary of State decided to deport the Appellant from the United Kingdom. This was the stimulus for his appeal to the First-Tier Tribunal (“ the FtT”) and the ensuing appeal to this Tribunal.
On 16 th August 2013, the FtT dismissed the Appellant's appeal on all grounds. The Appellant was represented at that hearing by counsel, while the Secretary of State was represented by the same official at both levels. Certain material aspects of the course of the hearing conducted by the FtT emerge from its Determination. Evidence was given by the Appellant on his own behalf. In addition, evidence was adduced from two witnesses, who were:
(a) His sister, who is variously described as “A”, “M” and “AE” in the Determination. [We shall describe her as “AE” hereinafter].
(b) His sister's spouse, “JE”.
It is clear that the evidence adduced from these two witnesses was designed to confirm and fortify the Appellant's international protection claims, in particular his assertions concerning fear of exposure to proscribed treatment in the event of returning to Afghanistan.
In paragraph 16 of the Determination, there is a reference to the evidence given to the FtT by the female person professing to be the sister of the Appellant and the spouse of JE. It is recorded:
“The witness AE was called. She appeared before us fully veiled. The Appellant's counsel stated she was satisfied as to the witness's identity. The witness stated that the photograph appearing in ………. the Appellant's bundle was her photograph.”
[Our emphasis]
According to the Determination, AE adopted her witness statement. In cross examination she testified, inter alia, that she is the sister of the Appellant, she does not know either of their ages and is unaware of their dates of birth. Prior to marriage, she had been known as “M” and, upon wedding, she adopted the name “AE”. She could not describe precisely the place of her alleged marriage to JE in Afghanistan.
The FtT refers to the evidence of AE in paragraph [27] of its Determination, in the following terms:
“In support of the assertion that A and M are one and the same person, we heard evidence from a female witness M. She appeared before us fully veiled, but asserted that she was the person whose photograph appears in [a visa document] ….
Her evidence is that she is also the person appearing in the Marriage Certificate….
We did not see the original of either document, but, because the witness was veiled, we cannot make any judgment as to whether either of those photographs bear [sic] any resemblance to the person in front of us.”
[Emphasis added]
In paragraph [28] the FtT makes the following finding:
“We find that the Appellant has not proved, even to the lower standard, that the witness A is one and the same person as his younger sister. As to the circumstances of the wedding between A and JE the evidence is so unsatisfactory that we can only conclude that whilst the Appellant and JE are known to either other, as to who participated in that wedding we are unable to say.”
The FtT proceeded to reject the Appellant's asylum, human rights and humanitarian protection claims, dismissing his appeal in its entirety.
The cornerstone of the Appellant's case has consistently been that he is a person at risk as a result of the marriage of his older sister in Afghanistan. The evidence of the veiled, female person claiming to be this sister was, self evidently, of substantial importance to his case. However, the Determination contains no considered assessment of the evidence of this witness who, as recorded above, was attired in the Niqab, the Muslim veil which enshrouds almost the entirety of the wearer's face. In particular, there is no evaluation of its reliability or credibility. Nor is it possible to make any confident inference about this matter. Thus her evidence was neither believed nor disbelieved by the FtT. The absence of a finding about her credibility is stark. The same observation applies to the evidence of JE. While the FtT made clear adverse credibility findings in relation to the Appellant, it failed to make any such findings as regards AE and JE, who were important witnesses. Furthermore, the FtT engaged in an exercise of attempting to compare AE's veiled visage with two photographic images. We consider that there are combined elements of insufficient findings and inadequate reasoning in paragraphs [25]–[28] of the Determination, which contain key passages assembled under the heading “Our Reasons and Decision”. These failings per se vitiate the Determination of the FtT.
Next, we turn to consider the fairness of the hearing conducted by the FtT. In doing so, we would highlight that, before this Tribunal, the following matters were confirmed on behalf of the Secretary of State:
(a) At the hearing, the FtT did not express any concern about the veiled attire of the witness. In particular, there was no hint that this presentation might influence the FtT's assessment of the evidence of this witness and its ensuing findings.
(b) The FtT made no enquiries of the Appellant's counsel or the witness about the issue of attire.
(c) In particular, no attempt was made to establish whether the witness might testify without her veil. Nor was any consideration given to the adoption of a mechanism such as the witness removing her veil, partially or fully, in appropriate conditions, or permitting her to be screened in some way or receiving her evidence before a limited audience.
We consider that the failures adumbrated immediately above rendered the hearing before the FtT procedurally unfair. It is clear from paragraph [27] of the Determination that the veiled attire of an important witness became a source of concern for the Tribunal. The substance of this concern is understandable: the FtT found it difficult to evaluate certain photographic evidence on account of her veiled attire. This, in turn, had a bearing on the Tribunal's evaluation of other evidence, in particular a marriage certificate. We consider that it was incumbent on the FtT, in the interests of fairness, to ventilate this concern, with due sensitivity and tact, in the presence of the parties. However, this did not occur. Secondly, we consider that the dictates of a procedurally fair hearing required the FtT to make sensitive enquiries about whether the witness could testify without the veil or...
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