Upper Tribunal (Immigration and asylum chamber), 2016-03-31, AA/08210/2015
| Jurisdiction | UK Non-devolved |
| Date | 31 March 2016 |
| Published date | 28 February 2017 |
| Hearing Date | 26 November 2015 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | AA/08210/2015 |
Appeal Number: AA/08210/2015
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/08210/2015
THE IMMIGRATION ACTS
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Heard at Glasgow |
Decision & Reasons Promulgated |
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On 26 November 2015 |
On 31 March 2016 |
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Before
UPPER TRIBUNAL JUDGE DEANS
Between
Ling Zhang
(Anonymity order not made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr B Price, Latta & Co, Solicitors
For the Respondent: Mrs M O’Brien, Senior Home Office Presenting Officer
DECISION AND REASONS
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This is an appeal against a decision by Judge of the First-tier Tribunal Morrison dismissing an appeal of asylum and human rights grounds.
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The appellant was born in 1989 and is a national of China. She claims that her parents were killed at the end of 2003 when a housing developer demolished the family home with the family inside. The appellant’s parents had refused to move and one night the developers came and demolished the house while she and her parents were sleeping in it. The appellant survived and was taken in by a neighbour. She tried to make a complaint in the petitions office in the nearest city but the developer had a relationship with the government and claimed that the house collapsed on its own. When the appellant went to make her complaint she was detained for about a week. In detention she was threatened and given only bread and water. After she was released she was followed. The appellant returned to live with a neighbour but one day she was cornered by two men who beat her up and threatened her. They told her that if she complained again she would be killed. After this the neighbours did not want her to stay with them anymore. The appellant used the family’s life savings to employ a “snakehead” to arrange her travel to the UK.
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After her arrival in the UK the appellant met some Chinese people. She lived and worked with them for about a year and a half doing washing up in a take-away restaurant. After about three years in London she moved to Manchester where she stayed for 3 or 4 years working at another restaurant. She then went to Edinburgh to work in a take-away. From there she went to a restaurant in Livingston where she was detected by immigration officials and she claimed asylum.
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The Judge of the First-tier Tribunal observed that if the appellant’s account was true then she would have left China when she was only 14. There was, however, no evidence apart from the appellant’s own account to support her claim that was when she left China. She had no contact with the authorities in the UK until she was detained in July 2013. She produced a witness statement from a friend who said she had known her only since 2012.
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The judge acknowledged that the appellant had given a consistent account of the events in which she claimed to have been involved in China and these were plausible when considered against the background information. There was a factual discrepancy over whether she had used the family savings to pay the snakehead to leave China or whether she had borrowed the money from the snakeheads. There was also an inconsistency arising from differing accounts she had given of how she had travelled from China to the UK. The judge found these discrepancies damaging to the appellant’s credibility.
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The judge considered the appellant’s response after the demolition of the house. The judge did not consider it credible that a girl who had just turned 14 would have reported the developers to the local petitions office. He did not find it credible that a recently bereaved 14 year old girl would have taken such action, nor did he find it credible that the response of the officials in the department would have been to detain her for a week. In his view it was much more likely that the authorities would have ignored the appellant knowing that her parents were dead and there were no adult family members who might cause trouble. Even if the appellant had been detained for a week, it was not credible that she would subsequently be approached out of the blue a few weeks later by people whom she said represented the developer and who threatened her. If she had been detained and released the developers had no reason to think that she would be any further trouble to them. In addition the judge did not consider it plausible that the appellant would have found the family’s savings of 10,000 RMB among the ruins of their family home; that she would have hidden this from the neighbours while she was living with them; and then arranged herself to find and pay snakeheads to fund her journey.
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The judge concluded that the appellant’s account was a fabrication and she did not face a real risk of persecution on return to China.
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The judge then considered the appellant’s private life, first of all in relation to paragraph 276ADE of the Immigration Rules. The judge was not satisfied that there would be very significant obstacles to her integration into China. The judge did not consider it necessary to consider Article 8 outside the Rules.
Application for permission to appeal
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The application for permission to appeal started with the appellant’s claim that she had come to the UK in 2004. The judge was not prepared to make a finding that the appellant arrived in the UK in 2004 and was prepared to accept only that she had been in the UK since 2012. The judge could not therefore take as an adverse credibility point under section 8 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 that the appellant had delayed making an asylum claim for a period of almost 10 years, since 2004. In addition, the judge considered that the appellant had had a lengthy period in which to fabricate the details of her asylum claim. This was on the assumption that she had had almost 10 years to do this whereas the judge’s finding was that she had not been in the UK since 2004 but only since 2012. It was not clear to what extent the judge had accepted the Home Office submissions on these matters. The judge’s reasoning on these matters was not based upon by his findings in fact. This was an arguable error of law that went to the core of the claim and infected the other negative credibility findings.
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The grounds then refer to certain factors which the judge found adversely affected the appellant’s credibility. These were, first, the issue of whether or not the appellant owed any money to snakeheads and, second, the implausibility of the appellant’s alleged actions in China at the age of 14. According to the grounds these issues were not put to the appellant by the respondent in the reasons for refusal letter, nor at the hearing by the respondent’s representative. The judge did not put them to the appellant. They were not obvious points that required to be responded to by the appellant without notice. The appellant did not have a fair opportunity to answer them. Reliance was placed upon Oke, Petitioner [2012] CSOH 50.
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The grounds refer to paragraph 276ADE of the Immigration Rules. It is submitted that the judge applied the wrong test by finding that the appellant did not have a lack of ties to China. The proper test was whether there were significant obstacles to reintegration. The judge also said that any ties which the appellant had lost were a matter of her own choice for which she was to blame. The question of choice was, however, not relevant to the application of paragraph 276ADE(vi).
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Continuing with the right to private life, the judge found there was no good arguable case that would entitle him to make an Article 8 assessment outside the terms of the Rules. The judge had treated the concept of a good arguable case as a sifting or intermediary test. This was now known to be wrong, as pointed out in Oludoyi IJR [2014] UKUT 00539. The judge had applied the wrong legal test.
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Finally the grounds criticise the judge’s application of section 117B of the Nationality, Immigration and Asylum Act 2002. The judge erred in finding that s117B(3) required some certification of achievement or attendance at English language courses. The issue was only whether the person could speak English. In addition, given the judge had found that the appellant was an economic migrant and had worked until she claimed asylum, the finding that she was not financially independent prior to her asylum claim was unreasonable.
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Permission to appeal was granted by the First-tier Tribunal in relation to the credibility issues arising from the asylum grounds. The points in relation to the judge’s finding as to when the appellant arrived in the UK in conjunction with the supposed delay in claiming asylum and the opportunity to fabricate a claim were arguable. In...
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