R Besla v Upper Tribunal (Immigration Asylum Chamber)
| Jurisdiction | England & Wales |
| Judge | Robert Jay |
| Judgment Date | 26 February 2013 |
| Neutral Citation | [2013] EWHC 831 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/2807/2012 |
| Date | 26 February 2013 |
[2013] EWHC 831 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Robert Jay QC
(SITTING AS A DEPUTY HIGH COURT JUDGE)
CO/2807/2012
Mr D Lemar (instructed by Kesar & Co) appeared on behalf of the Claimant
Mr Z Malik (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
(As Approved)
HE DEPUTY JUDGE: This is a renewed application for permission to apply for judicial review against a decision of a judge of the Upper Tribunal, given on 4 January 2012, refusing permission to appeal the decision of the First-tier Tribunal given on 20 July 2011. Wilkie J refused permission on the papers on 29 October 2012, holding that the second limb of the Cart test was not arguably engaged.
The claimants here are husband and wife and are nationals of Egypt. They are both Coptic Christians. The wife's claim is ancillary to the asylum claim of the husband. The essence of the first claimant's asylum claim is that in August 2009 he came to the attention of the authorities after being threatened by his influential and allegedly fanatical neighbour, Sheikh Amghad (As heard).
He said that he was stripped, handcuffed and blindfolded for two hours. I derive that from his answers to questions 128 and 129 at his asylum interview. He was released after two days with an undertaking in writing that he would have no further altercations with the Sheikh.
Between January 2010 and February 2011, the claimants were in this country ostensibly studying. The claimant claimed that he feared the Egyptian state's security apparatus and the Salafi movement with which the Sheikh was associated. He did not claim asylum on this occasion because, for amongst other reasons, he says the immigration officer wore the hijab and the claimant concluded that she was therefore a fanatical Muslim.
On return to Egypt in February 2011, the claimant said that he was arrested at Cairo airport but his wife was allowed to proceed. He claims that he was detained for five days, questioned about his reasons for leaving Egypt, handcuffed, his feet were beaten with sticks and he was urinated upon. He was only fed bread. He was released after five days. Following further threats from the Sheikh on 25 February 2011 (As heard), the claimant and his wife left Egypt for the United Kingdom on 4 March 2011 and claimed asylum on 23 March.
The asylum claim was rejected by the Secretary of State on 21 April 2011. Her decision letter starts at page 18 of the bundle. What the Secretary of State said on that occasion, and I am looking at paragraph 30 of her decision at page 25:
i. "It is accepted from the consistency between your account and the objective evidence available that the Egyptian police and state security forces may have detained you on this occasion [that is, the August 2009 occasion] and mistreated you whilst in detention, and that you, rather than your neighbour, became the focus of their enquiries. However, it is noted that you were released without charge and no prosecution followed. Your account of having had a file opened on you because of your neighbour's allegation of proselytising your faith is generally consistent also with the evidence regarding the actions of the SSI in Egypt and your accounts of the events of 2009 has demonstrated internal consistency. It has been accepted that the events you described may have occurred." [Quotation not checked]
So the Secretary of State was basically finding the first claimant a reliable witness in relation to what he was then saying occurred in August 2009. Later in the decision letter, at paragraph 43, the Secretary of State uses the epithet "deplorable" to characterise his treatment in police custody.
The matter came before the Tribunal, as I have said, in 2011. The decision was promulgated on 28 July 2011. The case proceeded on a slightly different basis. At paragraph 4 of the decision letter, the Tribunal set out the appellant's basic case in relation to the events of August 2009, namely that he was handcuffed and blindfolded for two hours. The First-tier Tribunal then deal with what happened in February 2011 where, as I have already said, on the appellant's version of events he was seriously assaulted, although I should say that the Secretary of State did not accept that account and found that it was an embellishment. Then later in the decision, in particular at paragraph 17, when the appellant gave evidence, this is recorded:
i. "The appellant told me that in 2009 he first went to the police station and they transferred him to the SSI. He felt the police were cold towards him and he warmed to the Sheikh and the case was twisted from the appellant being the victim to him being the accused. At the SSI he was questioned about the ongoing trouble between Christians and Muslims. He was beaten, kicked with shoes, boxed and he feared for his freedom at this time but not for his life." [Quotation not checked].
That is a different account to the account he gave at asylum interview, as I have already pointed out (see the answers he gave to questions 128 and 129.)
The First-tier Tribunal had to deal with that issue of credibility. In relation to the February 2011 incident, the First-tier Tribunal effectively agreed with the Secretary of State's conclusion that there was an embellishment of the account. In relation to the August 2009 incident, the First-tier Tribunal came to the same conclusion, but this time it related to an embellishment of the account given in oral evidence. Paragraph 29 states:
i. "The appellant stated in his...
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