Upper Tribunal (Immigration and asylum chamber), 2015-10-09, AA/03460/2012
| Jurisdiction | UK Non-devolved |
| Date | 09 October 2015 |
| Published date | 13 April 2016 |
| Hearing Date | 28 September 2015 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | AA/03460/2012 |
Appeal Number: AA/03460/2012
S-T
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/03460/2012
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 28 September 2015 |
On 9 October 2015 |
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Before
DEPUTY UPPER TRIBUNAL JUDGE FROOM
Between
A A M
(ANONYMITY DIRECTION MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr G Lee, Counsel
For the Respondent: Mr T Melvin, Home Office Presenting Officer
DECISION AND REASONS
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The appellant is a citizen of Somalia. He has appealed with the permission of the Upper Tribunal against a decision of Designated Judge of the First-tier Tribunal Shaerf, promulgated on 13 November 2013, dismissing his appeal against a decision of the respondent to remove him to Somalia, having refused his asylum application.
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I continue the anonymity direction made by the First-tier Tribunal.
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The appeal has a convoluted history. The history up to the point that Judge Shaerf heard the appeal in autumn 2013 is set out in paragraphs 3 and 4 of his determination. The appellant was then refused permission to appeal by the First-tier Tribunal and the renewed application to the Upper Tribunal was not admitted because it was out of time. The appellant applied for judicial review of the Upper Tribunal’s decision and permission was granted by Singh J on 24 April 2014. The decision of the Upper Tribunal was then quashed on 19 May 2014. On 23 April 2015 Mr Ockelton, Vice President of the Upper Tribunal, granted permission to appeal in the light of the decision of the High Court.
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The core of the appellant's asylum claim is that he came to the UK from Somalia in May 2007, aged 17. He said he was a member of the Reer Hamar minority clan. He had lived in the Hamar Weyne district of Mogadishu. He claimed his mother was threatened and robbed in 1997 and his brother and sister were killed. The appellant fled and became separated from his family. He was captured by the Habr Gedir together with his maternal uncle. He escaped in June 2006 when his uncle was killed. He stayed with his mother’s relatives in Medina until he left Somalia. His maternal aunt in the US paid for an agent to bring him to the UK from Ethiopia.
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Judge Shaerf heard the appeal over two days. In a detailed and thorough determination he set out the evidence and submissions made to him. At paragraphs 43 to 49 he considered the issue of the evidence which had been relied on by the respondent as showing that the appellant had had his fingerprints taken in the US in connection with the asylum claims he made there in 2005/2006. On balance, the judge found the fingerprints produced did relate to the appellant. He then went on to make an adverse credibility finding against the appellant. He found the appellant was from Mogadishu or Central or Southern Somalia but he was not a minority clan member. His account of being captured could not be true because he had been in the US at the time. He did not accept the appellant was entitled to humanitarian protection.
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I heard submissions on whether the judge made a material error of law.
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Mr Lee highlighted paragraph 10 of the judge’s determination which makes clear that the appeal proceeded on the basis that the key issue was the reliability of the fingerprint evidence. In effect, the appellant's credibility turned on that finding. He submitted the judge’s approach in respect of that evidence was unfair and for that reason the decision was unsafe. It is convenient therefore to set out the evidence, set out the cases relied on by Mr Lee and then examine the judge’s approach in the light of the submissions made.
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The reasons for refusal letter, dated 15 January 2011, stated that, in view of the appellant’s confirmation that he had applied under the US “asylum lottery” in 2001, a request was made to the US authorities as part of a Biometrics Data Sharing programme for any information they had about the appellant. The US authorities responded positively. Fingerprints taken from the appellant when he claimed asylum in the UK were compared with fingerprint records kept by the US. The UK fingerprints matched those of a Somali national who had given a different name and date of birth. The US authorities confirmed the fingerprints were taken when the individual applied for asylum as the dependant of his mother, which was refused on 9 October 2005. He then applied in his right own right, which was refused in May 2006. The reasons for refusal letter pointed out the appellant had been in the US at a time he claimed to have been held by the Habr Gedir or to have been escaping to stay with relatives in Medina. The evidence also contradicted the appellant's claim to have lost contact with his mother in 1997. The appellant denied ever having been in the US.
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The following evidence was before Judge Shaerf.
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There was a record of the appellant's fingerprints being taken on 7 May 2007 at Heathrow. The statement of John Roberts, a higher scientific officer, dated 28 February 2013, explained he had compared those prints with a set with the reference number 1085434419 and found them to have such number of ridge characteristics in agreement to leave him in no doubt that they were made by the same person. The statement of Kevin Patel, protocol manager for the exchange of data as part of the High Value Data Sharing Protocol between Australia, Canada, New Zealand, the UK and the US, dated 9 May 2013, stated that a Memorandum of Understanding had been signed between the Home Secretary and the US Department of Homeland Security. This enabled the exchange of date between participating countries. Under its terms the requesting country submits anonymised sets of fingerprints to the receiving country. Potential matches are examined and verified by fingerprint systems and experts. Where matches are confirmed both countries then exchange biographical data. Officials in the US had been sent the appellant's fingerprints, captured on 7 May 2007, on 17 January 2011. A match was found under reference 1085434419 and the biographical data was provided, including the dates of his asylum claims in the US. The US authorities also sent photographs. Finally, the appellant’s solicitors obtained an expert report by Ronald Cook, dated 1 September 2013. He took a set of fingerprints from the appellant and then compared them to the sets provided by the Home Office and the US authorities. He found the prints were made by the same person in all three cases. However, in relation to the set emailed from the US, he noted that no details were provided on the fingerprint form to indicate its source or origin.
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In YI (Previous claims – Fingerprint match – EURODAC) Eritrea [2007] UKAIT 00054, the issue was the treatment of EURODAC evidence apparently showing the appellant had been claiming asylum in Italy at a time he said he was undertaking military service in Eritrea. The Immigration Judge had not been satisfied that there was sufficient evidence to take the point against the appellant. Upholding the judge’s approach, the Presidential panel stated as follows:
“15. Absent such an assessment of the system in general, an Immigration Judge, acting fairly, would need to be satisfied on the specific evidence in each case whether that appellant had indeed made a previous claim. The evidence could comprise not just fingerprints but other data from the alleged previous application, such as for example photographs, age, name and claim details. General evidence might also be properly admitted about the reliability of the EURODAC system and how it operates. We do not seek to be prescriptive about this. An Immigration Judge will also, as a matter of fairness, have to be satisfied that the appellant has had the facility to access information about the assertion against him that would enable him, if he so wishes, to make a meaningful forensic rebuttal beyond mere denial …
16. … Indeed in all these circumstances it was, in our judgment, properly open to the Immigration Judge to conclude that the Respondent was still essentially relying upon the bare EURODAC assertion that there was a match without offering any corroborative evidence of it from the Italian claim. The Immigration Judge was not seeking to prescribe what was needed by way of evidence but was rather drawing attention to the sort of evidence that might have been available but had not been produced to him. Indeed a photograph of the Italian claimant if he resembled the Appellant, on top of the EURODAC...
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