Upper Tribunal (Immigration and asylum chamber), 2022-06-07, IA/04590/2021
| Appeal Number | IA/04590/2021 |
| Hearing Date | 31 March 2022 |
| Published date | 22 June 2022 |
| Date | 07 June 2022 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Numbers: IA/04590/2021
UI-2021-001382 (PA/51819/2021)
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/04590/2021
UI-2021-001382 (PA/51819/2021)
THE IMMIGRATION ACTS
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Heard at Cardiff Civil Justice Centre |
Decision & Reasons Promulgated |
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On 31 March 2022 |
On 7 June 2022 |
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Before
UPPER TRIBUNAL JUDGE GRUBB
Between
MA
(ANONYMITY DIRECTION MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr T Shah, Taj Solicitors
For the Respondent: Ms S Rushforth, Senior Home Office Presenting Officer
DECISION AND REASONS
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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
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The appellant was born on 1 January 1985. His nationality is in dispute. He claims to be Rohingya (and from Myanmar) whilst the respondent contends that he is not Rohingya and is a citizen of Bangladesh.
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The appellant entered the United Kingdom in January or February 2008. He claimed asylum on 29 May 2014. His claim was that he is of Rohingya ethnicity and had been born in Myanmar. He claimed that he fled Myanmar when he was 7 years old because his village was burnt by the military and he went to Bangladesh where he lived as a refugee spending eight years in the Moyoshkom Camp and then travelling, via Chittagong, to Dhaka where he lived until 2008. He claimed to be at risk of persecution as a person of Rohingya ethnicity if returned to Myanmar.
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The Secretary of State refused his claim for asylum on 4 July 2014.
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The appellant appealed to the First-tier Tribunal and, in a decision promulgated on 8 October 2014, Judge Maciel dismissed the appellant’s appeal. She made an adverse credibility finding against the appellant. She did not accept his account of what he claimed had happened to him in Bangladesh. She found that he was a citizen of Bangladesh and not of a person of Rohingya ethnicity from Myanmar. Permission to appeal that decision was refused by both the First-tier Tribunal and the Upper Tribunal on 4 November 2014 and 16 February 2015 respectively. The appellant became appeal rights exhausted on 18 February 2015.
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On 1 June 2015, the appellant made an application to be declared stateless but this was refused on 28 January 2017.
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On 8 November 2017, the appellant made further submissions in relation to his asylum claim. These were refused on 6 October 2020 by reference to para 353 of the Immigration Rules (HC 395 as amended). The appellant sought to judicially review that decision and, in a compromise reached in his judicial review claim, the respondent made a further decision refusing his international protection and human rights claims on 1 April 2021. That decision attracted a right of appeal.
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The appellant again appealed to the First-tier Tribunal. In a decision dated 5 October 2021, Judge Solly dismissed the appellant’s appeal on all grounds. She also made an adverse credibility finding. She did not accept that the appellant was of Rohingya ethnicity from Myanmar. She found that he was a citizen of Bangladesh and would not be at real risk of persecution on return to that country.
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The appellant sought permission to appeal to the Upper Tribunal on a number of diverse grounds. On 23 December 2021, the First-tier Tribunal granted the appellant permission to appeal essentially on the ground that the judge had erred in reaching her adverse credibility finding and in applying Devaseelan [2002] UKIAT 000702 in the light of new evidence relied upon by the appellant.
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On 18 January 2022, the Secretary of State filed a rule 24 notice seeking to uphold the judge’s decision.
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The appeal was listed for hearing on 31 March 2022 at the Cardiff Civil Justice Centre. The appellant was represented by Mr Shah and the respondent by Ms Rushforth. I heard oral submissions from both representatives.
The Appellant’s Submissions
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In his oral submissions, Mr Shah helpfully collated and focused the diverse grounds.
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First, the judge made a number of errors in her decision which demonstrated that she had not properly considered the appellant’s claim. Mr Shah relied upon three points. First, at para 42 the judge made reference to “Judge Phillips” and his findings in relation to the appellant’s earlier appeal when, in fact, the previous judge was Judge Maciel. Secondly, at para 50 the judge commented that the appellant’s skeleton argument made no reference to Devaseelan which was incorrect because paras 5 – 10 of Mr Shah’s skeleton argument dealt with the Devaseelan issue. Thirdly, at para 94 of her decision, the judge had said that she found the appellant was “a national of Pakistan” which was plainly an error.
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Secondly, the judge had wrongly applied Devaseelan. Mr Shah did not rely upon para 10 of the grounds which stated that the judge should have applied Devaseelan so that the earlier appeal determination did “not exist”. Instead, Mr Shah submitted that the evidence undermined the previous reason of Judge Maciel. Thus, at para 29 he submitted that Judge Maciel had found that the appellant was Bangladeshi on the basis that he “lived in Bangladesh and speaks Bengali”. Mr Shah submitted that was contrary to the background evidence which demonstrated that those of Rohingya ethnicity spoke Bangladeshi or a dialect close to it which Judge Solly, herself, accepted at para 79 of her decision (CPIN, Burma – Rohingya (including Rohingya in Bangladesh) (Version 2.0 March 2019) at paras 3.2.1 and 3.3.1). Secondly, the background evidence set out in the CPIN (March 2019) supported the appellant’s account, including that the vast majority of Rohingya are undocumented due to lack of citizenship rights in Bangladesh or Myanmar (e.g. paras 2.4.2, 2.4.3 and 2.4.10). Mr Shah also relied on the CPIN, “Bangladesh: Documentation” (version 2.0 March 2020) at 5.3.2 and 5.3.3 that fraudulent passports were often used by Rohingya refugees.
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Thirdly, Mr Shah submitted that the judge had been wrong to conclude that the inconsistencies in the appellant’s evidence, which assisted Judge Maciel in reaching her adverse credibility finding, had not been adequately explained by the appellant in the present appeal. He relied upon the appellant’s witness statement at page 14 of the appellant’s bundle which he submitted the judge had not properly considered.
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Fourthly, Mr Shah raised, albeit for the first time, the contention that the judge had been wrong to count against the appellant the fact that he had been unable to obtain supporting evidence either from the Myanmar Embassy or the Bangladeshi High Commission. He submitted that it was not unexpected that the appellant, if he were Rohingya, would not obtain responses from them.
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Finally, Mr Shah indicated that he was not pursuing the challenge, set out in para 22 of the grounds, to the judge’s decision in respect of Art 8 and in particular para 276ADE(1).
The Respondent’s Submissions
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On behalf of the respondent, Ms Rushforth relied upon the rule 24 response and made a number of submissions in reply to Mr Shah’s submissions.
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First, she submitted that the three errors in the judge’s determination identified in para 11 of the grounds were no more than typographical errors and were not material errors which undermined the judge’s determination.
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As regards the judge’s reference to “Judge Phillips”, it was clear from reading the totality of Judge Solly’s decision that she was well-aware that the previous judge was Judge Maciel and it was her earlier determination which Judge Solly was considering. Further, as regards the judge’s reference to the appellant being a “national of Pakistan” in para 94, it was clear that the judge was concerned throughout her determination with the issue of whether the appellant had established he was a Rohingya from Myanmar or whether he was, in fact, a Bangladeshi national and it was in relation to that issue that the judge made specific findings in para 95. Finally, as regards the point that the judge failed to notice that Mr Shah’s skeleton argument referred to Devaseelan, that was not material as the judge dealt at length with the Devaseelan issue, correctly noting that it was the “starting point” in para 42 of her decision and then going on to consider whether the new evidence justified her making findings contrary to those reached previously by Judge Maciel.
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Secondly, in relation to the remaining points made by Mr Shah, Ms Rushforth submitted that Judge Solly had properly considered the new evidence. First, the new background evidence did not make a material difference so at to undermine the basis of Judge Maciel’s decision. In particular, Ms Rushforth submitted that Judge Maciel had not decided that the appellant was not of Rohingya ethnicity...
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