England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No: AA/10527/2005]

		Royal Courts of Justice Strand, London, WC2A 2LL
		6th December 2007

Lord Justice Keene:

1. This is a renewed application for permission to appeal from the Asylum and Immigration Tribunal, permission having been refused on the papers by Buxton LJ.
2. This is a case where an order for reconsideration of the original decision by Immigration Judge Graham had been made. The reconsideration was by Senior Immigration Judge McGeachy, who by a determination promulgated on 3 May 2007 held that there was no material error of law in the original determination, and so he dismissed the applicant's appeal. He now seeks to challenge that decision.
3. Essentially, this means that one is concerned with whether there was or was not a material error of law in immigration Judge Graham's earlier decision of 21 February 2006. The factual context, put briefly, is this: the principal applicant is a male citizen of Somalia. The others are relatives of his. Their claim depends upon his claim, and therefore one can concentrate on that. He arrived in the United Kingdom on 11 August 2001 and claimed asylum two days later. His asylum claim was based on an assertion that he was a member of a minority clan, and hence at risk of persecution were he to be returned. He said in interview that he was a member of the Hintire clan, sub-clan Bantu, and that he had lived in Mogadishu. He claimed to have suffered various attacks in the 1990s and later.
4. Immigration Judge Graham did not accept that the applicant was a member of the Hintire Clan, though she did accept that he was of Bantu origin. This, according to the judge, was not a sub-clan at all, but, as the applicant himself later asserted in a witness statement, was more of a class of people who attached themselves to clans for protection.
5. The judge found that the applicant had altered his evidence on this to suit an expert report later obtained on his behalf. She also found that it was highly likely that he and his family were attached to a majority clan, since it would be nonsense to attach themselves to a clan which could not protect them.
6. Applying the country guidance case of DJ Somalia [2005] UKIAT 00089, the immigration judge did consider whether this was one of those unusual cases where a Bantu was nonetheless at risk of persecution. However, she did not accept the applicant's account of past persecution. She noted at paragraph 26 "material inconsistencies" in his evidence: first, as to the date when his mother was paralysed; secondly the absence of any mention in his accounts, before the refusal by the Secretary of State, of an attempt to leave Somalia in 1995, which he subsequently referred to; thirdly, his statement that he had sold his property, which had no roof, no windows and no door, for $14,000, even though it was in an area governed by fighting militia -- money which he claimed financed his and his five dependants' departure from Somalia.
7. The immigration judge also said that in deciding on his credibility she had taken into account, under Section 8 of the 2004 Act, his delay in claiming asylum. That, she said at paragraph 19, was one of the factors she had taken into account. Finally, she dealt with claims under Articles 3 and 8 in respect of the applicant's visual impairment and his mental health. Nothing however turns on that aspect of the case, and I take no more time on it.
8. When this went for reconsideration, the senior immigration judge expressly noted that there was no challenge for the finding that the applicant was a Bantu who would have protection from the majority clan. The challenge was pursued on other grounds. One of those is at the forefront of the grounds of appeal to this court. It is that the immigration judge went wrong in applying Section 8 of the 2004 Act. Section 8 requires an immigration judge, amongst others, to take account as damaging a claimant's credibility of any behaviour set out in Section 8(2). That latter subsection includes behaviour which is "designed or likely to obstruct or delay the handling or resolution of the claim."
9. Like Buxton LJ, I can well see that it is arguable that a delay of two days in claiming asylum, especially when there were then delays and inefficiencies by the Home Office, could not properly satisfy the wording of Section 8(2). But Buxton LJ pointed out that there were many other weighty considerations which led to the immigration judge's finding on the applicant's credibility. Those included the altering of his evidence on the status of the Bantu, and the three material inconsistencies I have mentioned earlier.
10. Mr Bedford, who appears today on behalf of the applicant, argues that the immigration judge's alleged error over Section 8(2) cannot be treated as insignificant. Neither she not the senior immigration judge said that the applicant would have been incredible in his account, irrespective of Section 8. Mr Bedford also submits that the inconsistencies only applied to the immigration judge's analysis of whether this was an unusual case, and not to her decision as to whether as a Bantu he was a member of the Hintire Clan. That is a finding, submits Mr Bedford, which was affected by her finding on Section 8, as can be seen from the structure of the determination. Furthermore, there was prejudice caused to the applicant because the file containing the SEF had been lost by the Home Office, and so he was unable to demonstrate consistency between what he said then and what he was saying subsequently.
11. Finally, there is a point taken in the skeleton argument, though not addressed this afternoon, which argues that the immigration judge went wrong in paragraph 26(ii) of her decision because she got the burden of proof wrong. That is said to have arisen when she stated:

"In addition, given that the property was in an area governed by militia I find it reasonable to assume that had the property been habitable the ruling militia in the area would have confiscated the property and kept it for themselves."

12. I turn to consider these various arguments. I start with the Section 8 point. It is well established that an error of law has to be a material one if it is to be the basis of a successful appeal. Mr Bedford rightly emphasises that at paragraph 19 of her decision Immigration Judge Graham said that the applicant's delay in claiming asylum was one of the factors which she had taken into account in determining his credibility. What then happens is that she goes on to analyse the applicant's account of events and ultimately finds that the Bantu are a class of people, not a subclan, and that the applicant had materially altered his evidence to fit the experts' report.
13. Then at paragraph 26 she says:

"In considering whether the Appellant falls within the 'unusual case' referred to in DJ I have considered the facts of the Appellant's account. I find that there are materially inconsistencies in his account which have led me to dismiss the core of his claim as not credible."

She then lists the inconsistencies I have summarised earlier, and states at the start of paragraph 27:

"As a result of these factors I do not accept the Appellant's account that he and his family have been persecuted in Somalia."

14. There is no reference again there to Section 8. It seems to me that it is impossible to split up her determination in the way in which Mr Bedford contends. The structure of her decision shows, to my mind, that the Section 8 factor played very little part in reality in her ultimate conclusions on credibility. For example, she gave a number of other powerful reasons for concluding that the applicant was not attached to the Hintire Clan, apart from the point about Section 8. She was particularly struck by the way that the applicant had materially altered his evidence to try to conform with the expert report. That clearly was a very powerful point about the credibility of the applicant, even on that one point; and I note that in her conclusion on the issue of whether he was within the Hintire Clan, having found that he had materially altered his evidence to fit the experts' report, she said at the end of paragraph 23:

"As a consequence I find that I am not satisfied to the required standard that the Appellant is a member of the Jarer-Hintire as he has latterly claimed."

15. I stress those words "as a consequence". It seems to me that those clearly signal that even if one were stopping, as Mr Bedford would have one do, at that stage in the report, it was the alteration of his evidence by the applicant that had the most profound effect upon her assessment.
16. But I go back to the point I made earlier. The reality is that when any adjudicator or immigration judge decides whether an applicant is credible or not, he or she will seek to consider the matter in the round; and it seems to me that the immigration judge must have taken into account those further inconsistencies which she spelt out at paragraph 26, in relation to credibility generally. For that reason, I do not see that there is an arguable case in respect of the Section 8 point because, as Buxton LJ said, any error of law in relation to Section 8 simply cannot have been a material one.
17. As for the point about the loss of the SEF file, again that leaves the bulk of the decision by the immigration judge unaffected. Whatever might have been the position in respect of the inconsistency to which that loss may relate, there would still be an inconsistency as to the date, and presumably the applicant's mother had not in 1991 being trying to leave Somalia in a lorry. It is not just the omitting of the mention of the 1995 attempt that is significant; it is also the date of his mother's paralysis.
18. Finally, as for getting the burden of proof wrong at paragraph 26(ii), that seems to me to be a non-starter. What the immigration judge there was saying has nothing to do with the burden of proof, or indeed with the standard of proof. The phrase "reasonable to assume" which she uses there is merely one way of saying "This is what I find is likely." On that again, therefore, I agree with Buxton LJ. In any event, as the sentence that I have quoted earlier shows, this was a merely an extra point. The judge had already noted that the property had no roof, no windows and no door; and so on that basis alone it could scarcely have been regarded as habitable.
19. In the event, despite the persuasiveness which Mr Bedford has employed in his submissions, as he always does, I can see no real prospect of any of these points raised succeeding before the full court. It therefore has to follow that this application must be dismissed.

Order: Application refused