Upper Tribunal (Immigration and asylum chamber), 2021-04-29, PA/11013/2019

JurisdictionUK Non-devolved
Date29 April 2021
Published date18 May 2021
Hearing Date08 April 2021
StatusUnreported
CourtUpper Tribunal (Immigration and Asylum Chamber)
Appeal NumberPA/11013/2019

Appeal Number: PA/11013/2019 (V)


Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: PA/11013/2019 (V)



THE IMMIGRATION ACTS



Heard at Cardiff Civil Justice Centre

Working Remotely by Skype

Decision & Reasons Promulgated

On 29 April 2021

On 8 April 2021





Before


UPPER TRIBUNAL JUDGE GRUBB



Between


U E K

(ANONYMITY DIRECTION MADE)

Appellant

and


THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent



Representation:

For the Appellant: Mr S Bass of Duncan Lewis Solicitors

For the Respondent: Mr C Avery, Senior Home Office Presenting Officer



DECISION AND REASONS

  1. Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) I make an anonymity order. Unless the Upper Tribunal or court directs otherwise, no report of these proceedings shall directly or indirectly identify the appellant. This direction applies to both the appellant and to the respondent and a failure to comply with this direction could lead to Contempt of Court proceedings.


Introduction

  1. The appellant is a citizen of Namibia who was born on 25 June 1992.

  2. The appellant arrived in the United Kingdom on 24 April 2018 with a student visa valid for six months. The appellant overstayed. On 20 November 2018, she was served with RED.0001. On 3 June 2019, the appellant claimed asylum. The basis of the appellant’s claim was that she feared her uncle who, together with his friends, had sexually and physically abused her in Namibia.

  3. On 26 October 2019, the Secretary of State refused the appellant’s claims for asylum, humanitarian protection and under the European Convention on Human Rights.

  4. The appellant appealed to the First-tier Tribunal. In a determination sent on 21 December 2020, Judge Trevaskis dismissed the appellant’s appeal on all grounds. In particular, he made an adverse credibility finding and did not accept the appellant’s account that she had been abused by her uncle in Namibia and would be at risk, as a consequence, on return.

The Appeal to the Upper Tribunal

  1. The appellant sought permission to appeal to the Upper Tribunal on the sole ground that the judge had misapplied s.8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (“the 2004 Act”) by unreasonably having regard to the fact that the appellant did not claim asylum on arrival in the UK.

  2. On 29 January 2021, the First-tier Tribunal (Judge Adio) granted the appellant permission to appeal. In doing so, Judge Adio identified a number of other points, going beyond the appellant’s sole ground of appeal, which he considered amounted to arguable errors of law. In addition to considering it was arguable that the judge placed undue weight on the appellant’s failure to claim asylum at port, Judge Adio also considered it arguable that the judge erred in law by requiring corroboration of evidence from, for example, her boyfriend in Namibia and by failing to identify the inconsistencies in the evidence which the judge relied upon. In para 3 of his decision, Judge Adio said this:

Having read the decision and the grounds it is arguable that the judge placed undue weight on the failure of the Applicant to claim asylum at the port. The Judge also required corroboration and does not give any explanation as to why her delay in claiming asylum should count against her because she could not provide evidence from [her boyfriend] referred to at paragraph 64(ii). There are arguable grounds in the approach of the judge in resolving credibility issues particularly with the overemphasis on her failure to claim asylum on arrival and the corroboration being sought for part of her evidence. The Judge makes findings of credibility between paragraphs 64 and 65 without really engaging at that point with what the inconsistencies are and with an overemphasis on corroboration. Although the judge outlined the legal framework for credibility this application is undermined by the approach taken towards the late asylum claim and the requirements for corroborative evidence. All grounds are arguable”.

  1. Apart from the reliance upon s.8 of the 2004 Act, the appellant did not contend that the judge had erred in law by requiring corroboration (in the form of additional evidence) or by failing to identify the inconsistencies upon which he relied in his determination. Although the Upper Tribunal has cautioned against judges granting permission on a ground not advanced by an applicant in their application for permission (see AZ (error of law: jurisdiction; PTA practice) Iran [2018] UKUT 245 (IAC)), nevertheless the additional grounds advanced by Judge Adio remain a basis upon which permission was granted. That was accepted before me by the parties.

  2. The appeal was listed at Cardiff Civil Justice Centre working remotely on 8 April 2021. The appellant was represented by Mr Bass and the Secretary of State was represented by Mr Avery both of whom joined the hearing by Skype.

  3. Mr Bass relied upon his skeleton argument which he developed in his oral submissions covering the s.8 ground as well as those identified by Judge Adio in his grant of permission. Mr Bass’ skeleton argument also contended that the judge had made impermissible findings on the implausibility of the appellant’s account. No objection was raised to this latter ground being relied upon although its substance only appears in Mr Bass’ skeleton argument. Mr Avery made oral submissions on each of the grounds now relied upon.

  4. I will deal with those grounds as follows:

        1. section 8 of the 2004 Act;

        2. corroboration;

        3. inconsistencies in the evidence; and

        4. implausibility of the appellant’s account.

Discussion

1. Section 8 of the 2004 Act

  1. Section 8 of the 2004 Act sets out behaviour by an individual making an asylum or human rights claim which must be taken into account by a deciding authority (whether the Secretary of State or Tribunal) as “damaging” of a claimant’s credibility. So far as relevant, ss.8(1), (2), (5) and (6) provide as follows:

8. Claimant’s credibility

(1) In determining whether to believe a statement made by or on behalf of a person who makes an asylum claim or a human rights claim, a deciding authority shall take account, as damaging the claimant’s credibility, of any behaviour to which this section applies.

(2) This section applies to any behaviour by the claimant that the deciding authority thinks –

(a) is designed or likely to conceal information,

(b) is designed or likely to mislead, or

(c) is designed or likely to obstruct or delay the handling or resolution of the claim or the taking of a decision in relation to the claimant.

....

(5) This section also applies to failure by the claimant to make an asylum claim or human rights claim before being notified of an immigration decision, unless the claim relies wholly on matters arising after the notification.

(6) This section also applies to failure by the claimant to make an asylum claim or human rights claim before being arrested under an immigration provision, unless –

(a) he had no reasonable opportunity to make the claim before the arrest, or

(b) the claim relies wholly on matters arising after the arrest.

....”

  1. It was not suggested by either representative that s.8 did not, in principle, apply to the appellant’s behaviour in delaying making her asylum claim between her arrival in the UK on 24 April 2018 and her claim for asylum on 3 June 2019. That was a delay of over thirteen months and, included, notice of her entering illegally being served on 20 November 2018.

  2. Instead, Mr Bass’ submission is that the judge gave undue prominence to the issue of the appellant’s delay and the application of s.8 of the 2004 Act, in particular dealing with it first in the section of his determination concerned with credibility. Mr Bass submitted that the judge had applied a ‘tick box’ approach and an ‘over robotic approach’ contrary to that emphasised as necessary by the Court of Appeal in MN v SSHD [2020] EWCA Civ 1746 at [127]. Mr Bass submitted that the judge had failed to engage with the appellant’s reasons why she did not claim asylum at port, namely because she did not know anything about the asylum process and had leave to enter as a student. Mr Bass referred me to the cases of SM (Section 8: judge’s process) Iran [2005] UKAIT 00116 and JT (Cameroon) v SSHD [2008] EWCA Civ 878 on the proper approach to s.8.

  3. In SM the AIT said this at [7]–[10]:


"7. The purpose of section 8 of the 2004 Act is no doubt to reverse dicta which have appeared from time to time suggesting that, contrary to what might be regarded as ordinary experience, certain matters have no impact at all on a person's credibility when it is assessed in an asylum claim. It has the incidental effect of interfering with the well-established rule that the finder of fact (in this case, the Adjudicator or Immigration Judge) should look at the evidence as a whole, giving each item of it such weight as he or she considers appropriate. That is unfortunate, and may in some circumstances be difficult to manage.


8. The impact of section 8 will no...

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