Upper Tribunal (Immigration and asylum chamber), 2008-01-28, [2008] UKAIT 7 (RZ (Eurodac, fingerprint match, admissable))
| Jurisdiction | UK Non-devolved |
| Judge | Senior Immigration Judge Latter, Immigration Judge Brunnen |
| Status | Reported |
| Date | 28 January 2008 |
| Published date | 29 January 2008 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 06 November 2007 |
| Subject Matter | Eurodac, fingerprint match, admissable |
| Appeal Number | [2008] UKAIT 7 |
Asylum and Immigration Tribunal
RZ (Eurodac – fingerprint match –admissible) Eritrea [2008] UKAIT 00007
THE IMMIGRATION ACTS
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Heard at Manchester |
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On 6 November 2007 |
|
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Before
SENIOR IMMIGRATION JUDGE LATTER
IMMIGRATION JUDGE BRUNNEN
Between
RZ
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr T Hussain, Counsel, instructed by White Ryland, Solicitors
For the Respondent: Mr J Hall, Counsel, instructed by Treasury Solicitors
1. Evidence of a fingerprint match obtained from the Eurodac system is admissible not only when considering which Member State is responsible for examining an application for asylum but also when examining the application itself.
2. The safeguards within the Eurodac system are such that in the absence of cogent evidence to the contrary,
(a) fingerprint images held in the system and data as to where, when and why those fingerprints were taken should be accepted as accurate and reliable; and
(b) evidence of a fingerprint match identified by the system and confirmed by the Immigration Fingerprint Bureau should be regarded as determinative of that issue.
3. Where there is a dispute about whether there is a fingerprint match, the burden of proof is on the respondent and the standard of proof is the balance of probabilities.
DETERMINATION AND REASONS
1. This is the reconsideration of an appeal against the respondent’s decision made on 18 September 2006 to remove the appellant following the refusal of his claim for asylum. His appeal was originally dismissed following the hearing by Immigration Judge Khawar on 2 January 2007. Reconsideration was ordered on 27 February 2007 and on 25 May 2007 the Tribunal found that there was a material error of law in his determination and it was directed that the second stage of the reconsideration should be a full rehearing.
2. This appeal has raised the issue identified in YI (Previous claims – fingerprint match – Eurodac) Eritrea [2007] UKAIT 00054 where in paragraph 13 the Tribunal said:
“13. ... It is clear that a full assessment of Eurodac data is a matter of considerable general importance because a number of cases turn upon fingerprint evidence produced by this system of past claims in order to expose deception in current asylum applications.”
We have heard evidence about the Eurodac system and submissions on whether fingerprint evidence obtained as a result of that system is admissible and if so the burden and standard of proof to be applied and the weight to be given to such evidence.
Background
3. The appellant is a citizen of Eritrea born on 24 April 1979. He arrived in the United Kingdom on 19 July 2006 making a clandestine entry by lorry. He applied for asylum on 20 July 2006. At his screening interview the appellant said that he was a Pentecostal Christian. He said that he had left Eritrea on 4 June 2006 arriving in Sudan on 5 June 2006. He had stayed in Kasala for two weeks with his uncle and then went to Port Sudan. He then had a 23 day journey by ship arriving in an unknown country from where he travelled by lorry to the United Kingdom, arriving on 19 July 2006. He said that he had met someone from his own country who let him stay overnight with him. The appellant was unable to identify where this was or who the person was. He had travelled with his uncle by truck to Port Sudan and his uncle had arranged with an agent for the appellant to travel by a cargo ship from Sudan. His uncle had paid US$4,000. The appellant was asked where he had got the money from and he said he did not know but his uncle’s son lived in the United States. The appellant said that his normal occupation was as a soldier. He had been in national service since November 1997 and had been detained from 10 October 2005 until he escaped on 4 June 2006. When asked his reason for coming to the United Kingdom, he replied that he had come here to claim asylum because of religious problems. He had been detained on 10 October 2005 because he was a Pentecostal Christian. He was asked whether he had had any problems prior to this and he replied that he had not. He confirmed that he had never left Eritrea before June 2006.
4. In accordance with normal procedure the appellant’s fingerprints were taken on 20 July 2006 but they did not meet the quality threshold required for comparison by Eurodac and further fingerprints were taken on 3 August 2006. His prints were then automatically compared electronically with other fingerprints on the Eurodac database and the search results showed there was a match with fingerprints taken in Lampedusa e Linosa, Italy on 8 July 2005. Those fingerprints were taken following an illegal entry into Italy. We will deal more fully later in this determination with the Eurodac system and the procedures followed.
5. The appellant was interviewed about his claim on 6 September 2006. He was asked whether he had ever left Eritrea before June 2006 when on his account he travelled to the United Kingdom. He replied that he had not. It was put to him that his fingerprints had been taken in Italy on 8 July 2005. His response was that he had not been in Italy and no fingerprints were taken. It was put to him that fingerprints were unique to each individual but he maintained his assertion that in 2005 he was in Eritrea. He repeated that he had come directly to England and had never been to Italy. The appellant said that he had started his military service on 1 November 1997. It was supposed to last for eighteen months but because of the situation in Eritrea he remained in the army until June 2006. He was asked if he had deserted from the military and he replied no. He said that he could not return as he had escaped from prison and would be shot.
6. The basis of the appellant’s claim for asylum as it emerged from his interview was that he was in fear of the government in Eritrea because of religious problems and because he had been a soldier. He had converted to the Pentecostal faith in September 2003 and was baptised on 2 May 2004. He started to attend secret prayer meetings in other believers’ homes. He first encountered problems on 5 February 2005 when he was caught reading the bible by a squad leader. His bible was taken from him and he was told he would not be allowed to practise the faith and was given a warning. On 10 October 2005 when practising his faith with a group of five other believers he was arrested. He was detained and taken to a prison in Asseb. He was regularly beaten but he did not receive any injuries from the beatings. On 4 June 2006 the appellant was travelling in a lorry with thirteen prisoners and five guards when the lorry overturned. The appellant was able to escape: none of the guards tried to follow him. He went on foot to Sudan and arrangements were made for him to leave and travel on to this country.
7. The respondent was not satisfied that the appellant was entitled to asylum. He took into account the fact that the appellant’s fingerprints had been taken in Italy on 8 July 2005. Paragraph 9 of the Reasons for Refusal Letter of 12 September 2006 refers to the fingerprints being taken in Italy under the same name and date of birth as the appellant. This is not fully accurate as we will make clear later as the information retrieved from Eurodac does not identify the appellant by name or date of birth. The respondent did not believe that the appellant was a follower of the Pentecostal faith, that he was a deserter or that he would be considered as such if returned to Eritrea.
8. The appeal against this decision was heard by the Immigration Judge on 2 January 2007. The appeal was dismissed on asylum, humanitarian protection and human rights grounds. Following a hearing on 25 May 2007 the Tribunal (Senior Immigration Judge Jarvis) found that there was a material error of law in the judge’s determination. The Tribunal’s reasons were as follows:
“1. The Appellant is a citizen of Eritrea whose date of birth is given as 24 April 1979. He claims to be a refugee and to be at real risk of other serious harm, by reason of his Pentecostal faith and by reason of his being a deserter from the military service aspect of National Service.
2. On 18 September 2006 the Respondent refused his application for leave to enter the UK on refugee and human rights grounds and decided to give directions for removal to Eritrea. The Appellant appealed and by a determination issued on 30 January 2007 to the Appellant, Immigration Judge Khawar dismissed his appeal on asylum, humanitarian protection and human rights grounds, finding no article 3 ECHR rights would be breached on return.
3. The Appellant applied for an order for reconsideration, and Senior Immigration Judge King, made an order on 27 February 2007 on the basis that the immigration judge had arguably erred in law as contended for in grounds:
‘ The circumstances of this matter are somewhat unusual because the Respondent relied upon a Eurodac computer search carried out in relation to the Appellant’s fingerprints such as to find a match in relation to an asylum claimant in Italy. What was significant about the particular match was that the claimant in Italy bore the same name and date of birth as the Appellant. This, of...
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