IMMIGRATION APPEAL TRIBUNAL

    TW (Risk on return – Unauthorised Departure) Myanmar) [2004] UKIAT 00285
                                                             
Date heard   :   7 October  2004 
Date notified 12 October 2004
 Before:-

DR H H  STOREY (VICE PRESIDENT)
MRS M McGREGOR
MR A EAMES

                                                               Between

                                                 
                                                                                                                      Appellant

                                                                  And

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representatives
Mr J Rendle of Counsel instructed by Sasdev & Co Solicitors for the appellant; Mr G Saunders for the respondent.

DETERMINATION AND REASONS

1.This decision is reported simply in order to highlight the importance in appeals brought by nationals of Myanmar of adjudicators making specific findings on the question of whether such nationals left Myanmar with our without authorisation. 

2. The appellant, a national of Myanmar, has appealed with leave of the Tribunal against a determination of Adjudicator, Mr R F V Sanderson, dismissing the appeal against the decision by the respondent giving directions for removal following refusal to grant asylum. 

3. Given the terms in which statutory review was sought and granted, the only arguable issue before us concerns the Adjudicator’s treatment of the evidence relating to whether the appellant would face a real risk of serious harm from the authorities upon return to Burma by virtue of having left without authorisation. 

4. We have some doubts that this is an issue properly raised in this appeal. It was not raised in the grounds of appeal nor at the hearing before the Adjudicator. However, we note that Elias, J in granting statutory review, stated that it seemed to him right that the IAT should consider it and hence we consider we should do just that.

5. When considering this issue, however, we meet a major stumbling block. The Adjudicator failed to make any findings on whether the appellant left Myanmar with or without authorisation. In the context of Myanmar cases, that seems to us a serious failing, since, on the only evidence before us, that of expert Win Soe, persons who have left Mynamar without authorisation face punishment consisting in lengthy imprisonment on return. 

6. We considered whether the fact that the Adjudicator had made adverse credibility findings meant that not entitled not to attach any weight to the appellant’s claims that she left Myanmar without a valid passport. We concluded we could not exclude that a person could be wholly lacking in credibility in respect of their past experiences, yet still be found credible in respect of claims about leaving without authorisation. All the Adjudicator did in this case was note that the appellant claimed to have left Myanmar without a genuine Burmese passport, albeit her agent had provided her with a passport. What he needed to do, but did not do, was to make a finding on whether he accepted her evidence about this. Without that evidence, we cannot decide properly address the returnee issue. 

7. What view the Adjudicator who next hears this case takes of the evidence on this issue is entirely a matter for him (or her). The fact that the appellant was able to enter through UK controls with a passport which was not noted anywhere to be false or in someone else’s name could be said to be evidence pointing to a conclusion that she did not in fact leave without valid documents (either a passport or some other travel document). On the other hand, there is some suggestion in the US State Department Report that the authorities in Myanmar do make it difficult for women to receive authorisation to leave the country. Even were an Adjudicator to find the appellant had left Myanmar without authorisation, it would still be necessary to consider the state of the evidence as to the consequences facing persons who return to Myanmar having earlier left without authorisation. The only specific item of evidence dealing with this issue before us was the report from Win Soe, which does not make clear what sources it relies on apart from an annexed article. 

8. For the above reasons the appeal is allowed to the extent that it is remitted to be heard by an Adjudicator other than Mr R F V Sanderson.

Approved for electronic distribution
 DR H H STOREY  
VICE-PRESIDENT