Upper Tribunal (Immigration and asylum chamber), 2018-07-31, PA/12482/2017
| Jurisdiction | UK Non-devolved |
| Date | 31 July 2018 |
| Published date | 16 August 2018 |
| Hearing Date | 18 July 2018 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | PA/12482/2017 |
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/12482/2017
THE IMMIGRATION ACTS
|
Heard at Bradford |
Decision promulgated |
|
on 18 July 2018 |
On 31 July 2018 |
Before
UPPER TRIBUNAL JUDGE HANSON
Between
AOBB
(anonymity direction made)
Appellant
and
Secretary of state for the home department
Respondent
Representation:
For the Appellant: Mr Sills instructed by Lei Dat & Baig Solicitors.
For the Respondent: Mrs R Pettersen Senior Home Office Presenting Officer
ERROR OF LAW FINDING AND REASONS
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The appellant appeals, with permission, a decision of First-tier Tribunal Judge Moxon promulgated on 12 January 2018 in which the Judge dismissed the appellant’s appeal on all grounds.
Background
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The appellant is a citizen of Sudan born on 21 December 1983 who claimed asylum on 14 July 2017. The appellant claimed a fear on return to Sudan as a consequence of being falsely accused of attending anti-government demonstrations and on account of his membership of a non-Arab Darfuri tribe. The Judge notes the respondent accepts the applicants claimed ethnicity but his assertion of receiving adverse attention from the Sudanese authorities was rejected.
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The Judge considered the evidence with the required degree of anxious scrutiny before setting out findings from [48] of the decision under challenge. The Judge considers country information which is set out in detail between [48 – 63] of the decision.
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The Judge accepts the account given by the appellant of mistreatment on account of suspected political involvement is consistent with the objective material, which enhances his credibility, although also notes various aspects of the evidence that undermine the appellant’s credibility. These are mentioned from [67] including discrepancies in the evidence which lead the Judge to find at [69] that the explanation for such discrepancies was not acceptable and that the applicant has been inconsistent as to whether he attended any demonstrations.
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The Judge concludes at [71] that he is not satisfied the applicant has been detained or that he has a political profile in Sudan or that he would face any adverse attention from the authorities on return, despite his ethnicity and the fact he would return to Sudan as a failed asylum seeker. The Judge did not accept the appellant had proved that he left Sudan illegally.
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The Judge notes the existence of country guidance cases relating to the risk to those of the specific relevant tribal membership and that he is bound to follow the conclusions of the Upper Tribunal unless there is good reason not to do so [73].
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The Judge finds at [74] that there are good reasons to depart from the country guidance case in light of the compelling evidence within the Home Office Notes referred to earlier in the decision. The Judge finds it is clear from several sources that people of non-Arab Darfuri tribes in Khartoum are liable to face discrimination but not persecution unless they are perceived to be politically active against the regime. The Judge finds this is exemplified by the settlement of those from this ethnic group in the city and their position in the security services, media, government and academia and by the fact the appellant himself has not asserted any difficulties throughout his life on account of his ethnicity save for reduced finances and problems faced by his family in joining the police force. The Judge finds the appellant has been able to access education and employment and has given no account of suffering threats or actual harm, save for the purported period of detention which the Judge has rejected as not being credible.
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Judge Moxon prefers the evidence in the Home Office Note and also takes account the fact the country guidance case of MM was heard in October 2014 over three years ago and that there has been sufficient time for change to be identified. The Judge notes that while significant objective evidence has been relied upon within the appellants bundle, this does not detail any harm or persecution of non-Arab Darfuri in Khartoum absent any political activities since the promulgation of the country guidance decision. The Judge finds that the situation in other areas such as Darfur itself, remains as outlined in AA and MM.
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The Judge reminds himself that the appellant originates from Khartoum and has family who remain who will no doubt support him on return. The Judge finds the appellant will be available to work and that whilst he asserts ongoing physical problems arising from a broken hand he has not argued that this prevents him from working and nor did the Judge have medical evidence to that effect. The claim was accordingly dismissed.
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Permission to appeal was refused by another judge of the First-tier Tribunal but granted on a renewed application by a Deputy Judge of the Upper Tribunal for the following reasons:
“I have carefully considered the grounds in the decision. It is arguable that the Judge, in departing from the country guidance cases, has relied too heavily on the Home Office Country Information and Policy Note, jointly produced with the Danish Immigration Service, without giving sufficient consideration to the evidence provided by the appellant. It is further arguable that he erred in failing to address the concern regarding unidentified sources and, in doing so, placed too much weight on this report.”
Submissions
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On behalf of the appellant Mr Sills argued that the question of risk to non-Arab Darfuri is an important issue. Mr Sills was not sure if there is a pending country guidance case, which does not appear to be so. Mr Sills submitted the report relied upon by the Judge presents a mixed picture. It is argued that the country guidance case together with the respondent’s own policy recognises the difficulties in obtaining evidence from Sudan.
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Mr Sills referred to the decision of the Upper Tribunal in AA (Non-Arab Darfuris- relocation) Sudan CG [2009] UKAIT 00056 where the Upper Tribunal followed the respondent’s own policy. At [4] the Upper Tribunal in that decision wrote:
“It was common ground that the appeal fell to be allowed. The UK Border Agency produced an Operational Guidance Note (AGN) on Sudan on 2 November 2009. Paragraph 3.8.9 we find the following:
“3.8.9 Ordinary non-Arab Darfuris are not thought to be subject to systematic persecution outside Darfur and the courts have found that it is not unduly harsh to expect them to internally relocate to Khartoum. However, those decisions predated the developments and reports referred to paragraph 3.9.4 to 3.9.7 below, and restrictions on the operations of NGO’s - a key source of country of origin information on Sudan - have meant that we have been unable to obtain sufficient reliable information to be able to assess accurately whether there is a continued heightened risk to non-Arab Darfuris in Khartoum. In light of the fact that we do not yet have sufficient information to allay the concerns raised in the reports, case owners should not argue that non-Arab Darfuris can relocate internally within Sudan.
3.8.10 Conclusion. All non-Arab Darfuris, regardless of their political affiliations, are at real risk of persecution in Darfur and internal relocation elsewhere in Sudan is not currently to be relied upon. Claimants who establish that they are non-Arab Darfuri and who do not fall within the exclusion clauses will therefore qualify for asylum”.
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It is submitted that in MM (Darfuris) Sudan CG [2015] UKUT 00010(IAC) at [13] the Upper Tribunal found:
13. In such circumstances the appellant is entitled to succeed in his asylum appeal unless it can be shown that since AA there is now cogent new evidence casting a different light on the situation of the Berti and/or non-Arab Darfuri. On the contrary, we find:-
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That the respondent has maintained word for word the position set out in her 2009 OGN. In the latest version (V.17.0 updated August 2012), the same wording is now contained 3.9.12 and at 3.10.1 it is stated that applicants can base their claim on membership of the Mussaleit, Zaghawa, Fur “all the other ethnic groups from Darfur States”.
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The expert evidence from Mr Verney considers that the current situation in terms of risk for non-Arab Darfuri (including the Berti) has worsened. As already noted, Ms Holmes did not seek to impugn his evidence nor was she able to identify any other evidence pointing in a different direction.
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Neither the country guidance case of AA nor the current Home Office OGN qualifies its identification of those who are at real risk of persecution by reference to whether an element of the risk they face derives from the fact of being a returning from the UK, but if that factor is taken into consideration, it seems to us that Mr Verney is right to consider that it is one which increases to some degree the level of risk for such claimants. It is true that according to Mr Verney the Sudanese authorities operate a highly sophisticated surveillance of Sudanese nationals in...
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