MM (unfairness; E & R) Sudan
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice McCloskey,Southern |
| Judgment Date | 14 November 2013 |
| Neutral Citation | [2014] UKUT 105 (IAC) |
| Date | 14 November 2013 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2014] UKUT 105 (IAC)
THE PRESIDENT, THE HON Mr Justice McCloskey
and
UPPER TRIBUNAL JUDGE Southern
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
MM (unfairness; E & R) Sudan
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(1) Where there is a defect or impropriety of a procedural nature in the proceedings at first instance, this may amount to a material error of law requiring the decision of the First-Tier Tribunal (the “FtT”) to be set aside.
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(2) A successful appeal is not dependent on the demonstration of some failing on the part of the FtT. Thus an error of law may be found to have occurred in circumstances where some material evidence, through no fault of the FtT, was not considered, with resulting unfairness ( E & R v Secretary of State for the Home Department [2004] EWCA Civ 49).
Appellant: Mr P Simm (Solicitor)
Respondent: Mr McVeety, Senior Home Office Presenting Officer
Both members of this panel of the Upper Tribunal have contributed to this determination
The Appellant appeals with permission against the determination of the First-Tier Tribunal (hereinafter “ the Tribunal”) which dismissed her appeal against the decision of the Secretary of State for the Home Department (hereinafter “ The Secretary of State”), dated 10 th April 2013, refusing her application for asylum and, further determining that she did not qualify for humanitarian protection under paragraph 339C of the Immigration Rules or for protection under Article 3 ECHR.
In order to understand the context and focus of this appeal, it is necessary to outline briefly the Appellant's asylum claim and the reasons for its rejection by the Secretary of State.
The Appellant is aged 31 and claims to be of Sudanese nationality and Arabic ethnicity. She entered the United Kingdom, with a visitor's visa, on 3 rd October 2012. She claimed asylum on 15 th March 2013. The customary screening and asylum interviews followed. The Secretary of State's decision refusing her application is dated 10 th April 2013.
In brief compass, the Appellant's claim for asylum was composed of the following ingredients:
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(a) She has been a Coptic Christian since birth.
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(b) In April 2008, she was arrested on account of inappropriate attire and detained by the police. A Court sentenced her to 50 lashes. Prior to her release from custody, three police officers raped her.
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(c) She was one of many Christians arrested by the police in November 2011, allegedly stimulated by the dissemination in the United States of a video which criticised Islam.
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(d) She was arbitrarily arrested by police on other occasions.
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(e) In September 2012, she was detained again by the same three police officers who had raped her in April 2008. They attempted to rape her again, unsuccessfully.
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(f) The Appellant entered the United Kingdom on 3 rd October 2012, for the purpose of visiting her sister. Shortly afterwards, her mother informed her that the same three police officers had come to the family home daily looking for her. This prompted her decision to claim asylum.
The Secretary of State, in determining the Appellant's claim for asylum, while accepting that she is a Sudanese national, found the following elements of her claim unworthy of belief:
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(i) The claim that she had been a Coptic Christian since birth.
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(ii) Her claims about arrests by the police.
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(iii) Her allegations of rape and attempted rape by police officers.
In making these assessments, the refusal letter highlighted specified inconsistencies and discrepancies in the Appellant's story. It was further considered, in the alternative, taking the Appellant's claim at its zenith, that certain rogue officials, rather than the Sudanese authorities, were the cause of her fear and she would be able to avoid them by relocating to another part of Sudan. Her case was also considered, and rejected, under Article 3 ECHR and paragraph 339F of the Immigration Rules.
The grant of permission to appeal to the Upper Tribunal was based on a piece of evidence which was not considered at first instance. This consists of a letter dated 9 th April 2013 addressed by the Appellant's solicitors to the UKBA North West Enforcement and Compliance Division in Liverpool. At the outset, we record our finding that, having considered all the evidence and the representations of both parties, we are satisfied that this letter was transmitted by fax on the date which it bears, 9 th April 2013 and received by the addressee on that date. We shall describe this document hereinafter as “ the solicitor's letter”.
We preface our consideration of the solicitor's letter by highlighting certain features of the UKBA interviews of the Appellant, which were conducted on 15 th March and 4 th April 2013 respectively. These are the following:
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(a) The Appellant described her primary language as Arabic and both interviews were conducted with the assistance of an Arabic interpreter.
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(b) She attributed the various forms of persecutory treatment alleged by her to her Christian denomination.
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(c) She was accompanied by her solicitor during the main (second) interview, which had a duration of two hours.
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(d) She is recorded as having confirmed that she was feeling fit and well, understood the interpreter and understood all of the questions.
The solicitor's letter was written five days after the second asylum interview. Referring to the Appellant, it begins:
“She subsequently attended our office for a read back of the substantive interview. We would now like to make the following further representations on her behalf. We must start by informing you that our client has informed us that on the day of the substantive interview your interpreter did not interpret all questions correctly. After the interview our client consulted her brother in law regarding some of the questions and noted that some questions asked were interpreted completely differently.”
The letter proceeded to list a lengthy series of “ clarifications”: 21 in total. This list was followed by the statement:
“Our client agreed that your interpreter on the day was fully understood as she did not realise that the questions she was answering were at some points completely different to what you were asking.”
Seven of the 21 “ clarifications” concerned a series of questions and answers recorded relating to the Appellant's professed Coptic Christian faith. We are mindful of the methodology employed in asylum interviews of this kind. The interviewing official formulates the question in English, the question is then translated by the interpreter, the interviewee answers in his/her native language, the interpreter translates the answer and the interviewer records the answer as translated by the interpreter. In essence, the complaint made on the Appellant's behalf was that the interpreter had misinterpreted various biblical terms, events and dogmas, with the result that the Appellant was not answering the questions formulated in English by the interviewer. This, the letter claimed, gave rise to a mismatch between the interviewer's questions as recorded and the Appellant's answers as recorded.
It is common case that the Secretary of State did not reply to the solicitor's letter. Mr McVeety confirmed that a copy of that letter had not reached the Presenting Officer's file by the time of the hearing before the First-tier Tribunal. It is further agreed that the letter did not form part of the evidence considered by the Tribunal at first instance, confirmed by the fact that it was not included in the bundle of documents prepared by the Appellant's solicitors. In a carefully constructed determination, the Judge stated, at paragraph [26]:
“I find that this case turns upon the credibility of the Appellant's claim to be a Coptic Christian and the credibility of her claim that she was raped in April 2008 by three police officers, that in November 2008 she was arrested at her home by police officers following the release in the USA of the video defaming the Prophet Mohammed, that in September 2012 she was arrested again at her home by police officers who attempted to rape her and finally upon the credibility of her claim that since her arrival in the UK the same police officers have been repeatedly visiting her mother's home and that one of the police officers has been demanding that the Appellant becomes his girlfriend and that if she refuses to do so he will ensure that she becomes everybody's girlfriend.”
As this passage demonstrates, the Judge, in common with the Secretary of State, recognised that the Appellant's claim to be a lifelong Coptic Christian is a key element of her story, as she relates her espousal and manifestation of this faith to all of the persecutory acts alleged.
The Determination, which consists of 50 paragraphs, devotes 22 of these to the issue of the Appellant's credibility. In paragraph [36], the Judge, adverting to a particular aspect of the asylum interview record and noting a significant inconsistency with the Appellant's witness statement, records the Appellant's answer, in cross examination at the hearing, that the interview record was “ wrong”. This passage of the determination continues:
“She was asked by [the HOPO] when it came to her attention that the interview record was wrong and she replied that it was three or four hours after the interview when she had gone through the interview record with her brother in law …..
She was asked why neither she nor her solicitors had contacted the Home Office to inform them that the interview record was wrong …..
The Appellant stated that she discussed this issue with her solicitor who told her that she would send a letter to the Home Office pointing...
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