PA v The Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Lane,Pitt,Lane J |
| Judgment Date | 21 September 2018 |
| Neutral Citation | [2018] UKUT 337 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 21 September 2018 |
[2018] UKUT 337 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
THE HON. Mr Justice Lane, PRESIDENT
UPPER TRIBUNAL JUDGE Pitt
For the Appellant: Ms A Seehra, Counsel, instructed by Hunter Stone Law
For the Respondent: Mr D Clarke, Senior Home Office Presenting Officer
PA (protection claim: respondent's enquiries; bias) Bangladesh
1. Respondent's inquiries in country of origin of applicant for international protection
(1) There is no general legal requirement on the Secretary of State to obtain the consent of an applicant for international protection before making an inquiry about the applicant in the applicant's country of origin. The decision in VT (Article 22 Procedures Directive – confidentiality) Sri Lanka [2017] UKUT 00368 (IAC) is not to be read as holding to the contrary.
(2) The United Kingdom's actual legal obligations in this area are contained in Article 22 of the Procedures Directive (2005/85/EC), as given effect in paragraph 339IA of the Immigration Rules. So far as obtaining information is concerned, these provisions prohibit making such an inquiry in a manner that would result in alleged actors of persecution being directly informed of the fact that that an application for international protection has been made, which would jeopardise the applicant's (or his family's) physical integrity, liberty or security.
(3) If information is obtained in a way that has such an effect, the fact that the applicant may have given consent will not affect the fact that there is a breach of Article 22.
2. Allegations of judicial bias
(1) An allegation of bias against a judge is a serious matter and the appellate court or tribunal will expect all proper steps to be taken by the person making it, in the light of a response from the judge.
(2) The views of an appellant who cannot speak English and who has had no prior experience of an appeal hearing are unlikely to be of assistance, insofar as they concern verbal exchanges between the judge and representatives at the hearing of the appeal. In particular, the fact that the judge had more questions for the appellant's counsel than for the respondent's presenting officer has no bearing on whether the judge was biased against the appellant.
(3) It is wholly inappropriate for an official interpreter to have his or her private conversations with an appellant put forward as evidence.
(4) As a general matter, if Counsel concludes during a hearing that a judge is behaving in an inappropriate manner, Counsel has a duty to raise this with the judge.
(5) Although each case will turn on its own facts, an appellate court or tribunal may have regard to the fact that a complaint of this kind was not made at the hearing or, at least, before receipt of the judge's decision.
(6) Allegations relating to what occurred at a hearing would be resolved far more easily if hearings in the First-tier Tribunal were officially recorded.
The appellant, a citizen of Bangladesh born in 1993, arrived in the United Kingdom with a visitor's visa, a few months after his 18 th birthday.
The appellant's visa was valid until January 2012. On 19 February 2013, the appellant was arrested by the police for theft and on suspicion of being an overstayer. He was placed on reporting conditions.
On 5 April 2016, the appellant claimed asylum. He said that he had been a member of the BNP in Bangladesh and that in 2010 he had become President of the Union Chatrodol, as well as becoming a more active member of the party. After arriving in the United Kingdom, however, the appellant said he became less active in BNP matters. The appellant said that his family in Bangladesh were active with the BNP.
The appellant's claim to be in need of international protection stemmed, he said, from the fact that he was afraid that local members of the Awami League had had the police issue a warrant for the appellant's arrest; that they had issued threats against his family in order to ascertain his whereabouts; that as a result his brothers had to go into hiding in 2008 and his sister had to stop her studies; that in September 2011 Awami League members attempted to kill the appellant by hitting and stabbing him; and that he had been forced into hiding.
In connection with his protection claim, the appellant submitted documents said by him to have been obtained from Bangladesh. These included two First Information Reports (FIR) and two charge sheets, said to have been issued at a police station in Sylhet.
On 17 March 2017, the respondent refused the appellant's claim. So far as BNP activity was concerned, the respondent considered it inconsistent that the appellant should be highly active with the BNP in Bangladesh but less active after he had come to the United Kingdom. The appellant's answer was that he had been constrained by financial difficulties. The respondent considered it inconsistent that, as a lifelong follower of the BNP, the appellant would stop engaging in BNP activities, once in the United Kingdom. The respondent noted that the appellant had given an additional reason for his lack of activities; namely, that if he were seen in a photograph in the media “it would be more destructive for my family”. The respondent did not consider that this was a satisfactory explanation.
So far as being President of the Union Chatrodol was concerned, the respondent found the appellant's answers on this matter to be “vague and more about your brothers' involvement”. The appellant could provide only limited information about his responsibilities as President.
Turning to the alleged attack from the Awami League, the respondent noted a number of inconsistencies in the appellant's account. The appellant said, on the one hand, that those witnessing the attack on him ran away due to their fear of violence but that they later returned, pushing his attackers away, who then apparently feared that they would themselves be tortured.
The appellant said that the Awami League had arranged for an arrest warrant in respect of the appellant to be issued before the attack on him. The respondent considered it inconsistent, if he was wanted by the police, that the appellant was able, as he had claimed, to “walk into a police station in order to lodge a [general diary] without being arrested and held for questioning”.
As we have said, the appellant submitted to the respondent two FIRs. The first was numbered 23 and dated 10/01/2010. The second FIR was numbered 30 and dated 05/01/2011.
The two charge sheets submitted by the appellant were numbered 87 and dated 25/02/2010 and numbered 53 and dated 08/03/2011.
The British High Commission in Dhaka carried out a verification exercise in respect of the FIRs and charge sheets. On 23 October 2016, a member of the High Commission visited the officer in charge of a named police station in Sylhet. He introduced himself as an official of the High Commission and asked the officer in charge if he could verify the two FIRs and two charge sheets.
The officer in charge physically located the register and searched the records. The officer said that neither the FIRs nor the charge sheets existed on record.
The High Commission official then acted as follows:-
“I requested to take a look at the FIR register, to which the OC permitted. From the register I discovered that on 06/01/2011 FIR No. 28 to 29 was filed. Furthermore, FIR No. 23 was filed on 06/01/2010.
Similarly, the register showed on 05/01/2011 FIR No. 27 was filed and FIR No. 30 was filed on 07/01/2011.
None of the names and dates in the documents submittrd by the subject matched the details contained in the register.”
The respondent's letter of refusal made reference to the official's findings regarding the FIRs and charge sheets. They were found to be “false and non-genuine”. The respondent considered that the fact the appellant had provided false documents as part of his claim “damages your credibility. In light of all the above findings it is considered that you have failed to provide a credible and consistent account with regard to this aspect of your claim. It is not accepted that the Awami League tried to kill you. This part of your claim has been rejected”.
The respondent considered that the appellant's credibility had been further damaged by the fact that he had only claimed international protection after being detected and arrested as an overstayer in the United Kingdom. Indeed, the claim had been made over three years after that arrest. When asked why he had not claimed earlier, the appellant said: “I thought I need to prove that I am having problems in Bangladesh so it took some time for me to get these documents”.
The appellant appealed to the First-tier Tribunal against the refusal of his protection claim. The grounds of appeal contended that he had provided “a credible statement. The respondent's assertion in relation to credibility of the appellant lacks details”.
Counsel for the appellant provided a skeleton argument in connection with his appeal. The skeleton argument referred to a letter from the General Secretary of the BNP in the United Kingdom; some Facebook “screen shots” relating to the appellant; and various documents said to emanate from Bangladesh, including the general diary reports, charge sheets and First Information Reports (FIRs).
It was submitted that the appellant's account was “both internally and externally consistent with the objective evidence provided by the appellant, which refers to the assault on the appellant, the outstanding police warrants and charge...
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