Upper Tribunal (Immigration and asylum chamber), 2021-06-07, PA/12493/2019
| Jurisdiction | UK Non-devolved |
| Date | 07 June 2021 |
| Published date | 22 June 2021 |
| Hearing Date | 30 April 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | PA/12493/2019 |
Appeal Number: PA/12493/2019
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/12493/2019
THE IMMIGRATION ACTS
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Heard remotely at Field House |
Decision & Reasons Promulgated |
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On 30 April 2021 via Skype for Business |
On 7 June 2021 |
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Before
UPPER TRIBUNAL JUDGE STEPHEN SMITH
Between
The Secretary of State for the Home Department
Appellant
and
JG (aka RM)
(ANONYMITY DIRECTION made)
Respondent
Representation:
For the Appellant: Mr E. Tufan, Senior Home Office Presenting Officer
For the Respondent: Ms J. Fisher, Counsel, instructed by Duncan Lewis & Co. Solicitors
DECISION AND REASONS (V)
This has been a remote hearing which has been consented to / not objected to by the parties. The form of remote hearing was V (video). A face to face hearing was not held because it was not practicable and all issues could be determined in a remote hearing.
The documents that I was referred to were primarily the decision of the First-tier Tribunal, the Secretary of State’s grounds of appeal, and the parties’ written submissions, the contents of which I have recorded.
The order made is described at the end of these reasons.
The parties said this about the process: they were content that the proceedings had been conducted fairly in their remote form.
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This is an appeal of the Secretary of State. For convenience, I will refer to the parties as they were before the First-tier Tribunal where appropriate.
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The Secretary of State appeals against a decision of First-tier Tribunal Judge Hawden-Beal promulgated on 30 November 2020 allowing an appeal by the appellant, a person claiming to be a citizen of Somalia born on 18 February 1975, against a decision of the Secretary of State dated 6 December 2019 to refuse his fresh claim for asylum. The appellant’s fresh claim was made on the basis of his claimed membership of the Bajuni people in Somalia, a particular social group.
Factual background
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The appellant entered the United Kingdom in September 1998. It is common ground that he did so in the name of JG, a Tanzanian citizen, bearing what appears to have been a genuine Tanzanian passport issued in that name. The appellant was granted leave to remain on a number of occasions in that identity. In October 2005, he applied for leave as the dependent spouse of a settled person, again in the identity of JG. That application was refused and he did not pursue an appeal against that refusal.
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In January 2009, the appellant claimed asylum on the basis that he was RM, a Somali citizen of the Bajuni clan. The Bajuni inhabit small islands off the coast of southern Somalia. The appellant claimed that he would face being persecuted on account of being a member of that particular social group. He claimed that the identity of JG had been provided to him by those who facilitated his journey to this country, maintaining that he had claimed asylum in his true, Somalian Bajuni identity. His claim for asylum was refused and the appellant’s appeal against the refusal was dismissed before the First-tier Tribunal in October 2010 by First-tier Tribunal Judge Graham.
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In 2014, the appellant made a fresh human rights claim. It was refused, and the appellant’s appeal against that refusal was dismissed by First-tier Tribunal Judge Thorne in June 2014.
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On 26 August 2014, the appellant made further submissions in support of his asylum claim. He also claimed to have been trafficked to this country. The further submissions were refused in circumstances that did not attract a right of appeal. The National Referral Mechanism rejected his claim to have been trafficked on 26 September 2014.
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On 9 January 2015, the appellant made further submissions in support of his claim to be a member of the Bajuni clan. The further submissions were refused as a fresh claim on 6 December 2019, and it was that refusal that was under appeal before Judge Hawden-Beal.
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The appellant enjoys limited leave to remain on the basis of his family and private life. This appeal therefore concerns only his claim for international protection.
The asylum claim
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The appellant’s asylum claim commenced with an account of him having been attacked by militia in 1991. The militia killed his father and later his mother. His sister went missing. He fled to Kenya where he started a wholesale clothing business. He was stabbed by his business partner and looked to flee the country. He later met a trafficker who facilitated his travel to this country on the Tanzanian passport provided to him for that purpose. Upon arrival here, the appellant had to surrender his travel documents to the traffickers. They made him work and took his money. The traffickers tracked the appellant down after he claimed asylum. They bundled him into a car and later threw him out of the car onto a motorway.
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The appellant subsequently provided a medico-legal report detailing 13 lesions and scars which were said to be consistent with the history he provided. Some were consistent with a history of shackling, and that the overall pattern of scarring was highly consistent with a history of torture: see the report by Dr Ioana Steen dated 10 October 2014.
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When initially refusing the appellant’s claim to be a member of the Bajuni claim in 2010, the Secretary of State relied on a Sprakab report, a form of linguistic analysis which is sometimes used to assist the determination of claims of disputed nationality and similar matters. See the description at paragraph 3 and following of Secretary of State for the Home Department v MN and KY [2014] UKSC 30. The linguists who drafted the report had listened to a recording of an interview conducted with the appellant, and concluded that the dialect of Swahili spoken by the appellant was found in Tanzania, and not Somalia. The appellant had ‘deficient’ knowledge of Somalia, yet spoke Swahili with the fluent intonation and pronunciation typical of a variety of Swahili spoken in Tanzania. He was not Somalian.
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The appellant did not attend the hearing before Judge Graham in 2010. It is clear from that decision that the judge scribed significance to the Sprakab report – see paragraph 30 – although noted at paragraph 32 that the appellant had not been provided with an audio copy of the recording, which he should have been. The judge also analysed the contents of the appellant’s asylum interview and witness statements, finding the account provided by the appellant to lack credibility. The appellant’s 2014 fresh claim was based on his human rights claim, rather than a renewed protection claim.
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In support of his fresh claim in 2015, the appellant relied on a report dated 11 May 2015 by Dr M. Faulkner, a country expert based at the School of Oriental and African Studies. Dr Faulkner interviewed the appellant and considered the Sprakab report, concluding that it featured a number of weaknesses (see paragraph 20 and following). At paragraph 16 of the current refusal decision, the Secretary of State accepted that Dr Faulkner was an expert in his field, but noted at paragraph 18 that he did not appear to have considered the ‘the appeal determination of 13th October 2012’ [sic]. That must have been a reference to Judge Graham’s decision, promulgated on 27 October 2010, following a hearing on 13 October 2010. There has not been a decision dated 13 October 2012 in these proceedings. Because Dr Faulkner had not considered Judge Graham’s decision, his report attracted less weight, considered the Secretary of State. The report did not resolve Judge Graham’s concerns about the appellant’s lack of knowledge of Somalia, and nor did it resolve the broader credibility issues raised by the judge in that decision. The fresh claim was refused.
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In the appeal below, the appellant relied on an addendum report from Dr Faulkner dated 10 March 2020, in which Dr Faulkner sought to address the concerns raised by the Secretary of State in her decision. He addressed the fact that Judge Graham did not have the benefit of hearing evidence from the appellant, while noting that much of the judgment was ‘taken up with matters that are outside of my limited area of expertise’ (paragraph 8). The appellant had been homeless at the time of the appeal and did not receive the notice of the hearing. Dr Faulkner scrutinised the Sprakab report, and addressed a number of other concerns. Part of the appellant’s 2015 fresh claim had relied upon a Somali birth certificate dated 20 November 1980. The Secretary of State had rejected the reliability of the document, as no details had been provided as to its provenance. Dr Faulkner said he was unable to authenticate the document, but observed that he found it odd that a poor fisherman would have travelled to Mogadishu, the location of the issuing authority, to obtain the document.
The decision of the First-tier Tribunal
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At paragraph 10, Judge Hawden-Beal said:
“At the start of the hearing it was agreed by the parties that if I found the appellant to be of Bajuni ethnicity, it follows that he will be at risk of persecution as per paragraph 36 of MOJ & Ors (Return to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC).”
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