(Immigration and Asylum Chamber) Appeal no: AA 13378-10
THE IMMIGRATION ACTS
on 19.04.2012 & 27.06.2013
sent out: 08.07.2013
Upper Tribunal Judge
For the appellant: Catherine Meredith (on 19 April 2012) and Cormac McCarthy (on 27 June 2003), both counsel instructed by Ty Arian, Swansea)
For the respondent: Mr Irwin Richards
DETERMINATION & REASONS
This is an appeal, by the , against the decision of the First-tier Tribunal (Judge Dawn Baker), sitting at Newport on 23 November 2010, to an asylum and human rights appeal by a Fulani citizen of Guinea (capital Conakry), born in 1983. Following the hearing on 19 April 2012, I decided that, however understandably in the circumstances, she had made an error of law, which required a re-hearing of at least part of the case. This could not be listed before me at Newport till 27 June 2013. In order to follow the challenges to the judge’s decision, it is necessary first to set out the relevant history.
2. History The appellant claims a history of political involvement in Guinea, much of which can be taken from the chronology before the judge. On 8 and 16 June 2006 he had attended two demonstrations, without apparently getting into any trouble over either of them. On 6 December 2006, someone made a visit visa application at the British Embassy in Brussels, in the name of Thierno Mamoudou Bah, born in 1978, but on the basis of a photograph which the appellant admitted before the judge was his: the visa was granted.
3. On 10 January 2007 the appellant went on another demonstration in Conakry: this time troops came to his family house that evening, looking for him; however he escaped, and went to stay with friends. On the 23rd his step-father (who it turns out was also his paternal uncle) called him, and told him a warrant had been issued for his arrest: what is said to be a copy of this document is dated 22 January 2007, headed ‘Notes de Recherche’, and has been translated ‘Search Notice’: it is signed by the juge d’instruction (investigating judge) Mamady Camara, and the deputy public prosecutor, and instructs all public authorities to find Amadou Bah, and seek the judge’s instructions if found. I shall refer to it as the 2007 warrant.
4. The appellant’s step-father’s instructions to him were to stay where he was, and have photographs taken (see paragraph 16 of his statement). The appellant’s step-father then made arrangements through an agent for him to leave Guinea, and in March 2007 the appellant arrived in this country. He accepted at interview that the passport with which the agent had provided him might have been in the name of Thierno Mamoudou Bah: Home Office records show that the holder of a passport and visa in that name was given leave to enter at Gatwick on 1 March. The appellant says he was detained for two days, and then went to stay with a friend in Gloucester.
5. On 3 April 2009 the appellant was arrested in London as an illegal entrant, and claimed asylum: he was nevertheless given temporary admission, to stay with his friend in Gloucester. In December 2009 he went to see an organization called ‘Gloucestershire Action for Refugees and Asylum Seekers’ [GARAS], as shown in an undated letter from them to the Home Office. The appellant wanted to know what had happened to his asylum application: ‘extensive enquiries’ by GARAS with the Immigration Service eventually showed that the appellant had been recorded by the Home Office as an absconder. GARAS finally got through to the absconder team, who told them the appellant should write in with representations, if he wanted to proceed with his claim.
6. At this point, as GARAS say, the appellant decided to apply for voluntary assisted return, and there was before the judge an application at p 27, signed both by him and GARAS on 8 February 2010. I shall return at 23 to the evidence before me about hos this came about. Curiously enough, although both the Home Office and GARAS had been dealing with him in 2009 - 10 under his present name of Amadou Bah, both the application for voluntary assisted return, and, according to Home Office records, the passport sent in with it, are in the name of Thierno Mamoudou Bah. The passport bore the same number as the one used in that name for the 2006 visa application in Brussels.
7. On 4 March 2010 the appellant claims he left this country, and arrived in Guinea. There is no documentary evidence before me to show that his application for voluntary assisted return was processed; or of his travel arrangements: on 27 June 2012 what was said to be a copy of the Thierno Mamoudou Bah passport was produced, to which I shall return. In Guinea the appellant claims he was detained for 25 days on arrival, until on the night of 29 - 30 March 2012 he was released, under arrangements made by his step-father; but on 1 April a summons (convocation) was issued by the commandant of a gendarmerie unit, requiring him to present himself to them on the 5th. It is not clear when the appellant received this document; but he says he flew to Brussels, under further private arrangements made by his step-father through an agent, on 19 May.
8. On 20 May 2010 the appellant says he landed in Brussels and claimed asylum; but his application was not accepted, as he had previously claimed in this country, and he was removed here under the Dublin Convention on 5 July. The Home Office do not accept that he ever went back to Guinea in 2010; but this removal is accepted, since the details of his flight from Brussels on 5 July are typed into the record of his screening interview, otherwise completed by hand the same day.
9. Following the appellant’s screening interview, and despite the mode of his return, he was not detained, but sent to Cardiff under dispersal arrangements on 4 August 2010, and fully interviewed on 16 August. Following that interview, he was refused asylum and a decision made to remove him on 13 September. In the refusal letter, the Home Office case was presented in the alternative: either on the basis that he was the Thierno Mamoudou Bah who had applied for and got a British visit visa in Brussels in 2006; or that he was not that person. By the time of the hearing before the judge on 23 November it had been established by comparison of finger-prints that the appellant was not the person who had made that application, and so that claim by the Home Office was withdrawn.
10. Appeal to Upper Tribunal The appellant’s main ground of appeal before me was that, on the basis of the concession made about the finger-prints, the judge was not entitled to reach the conclusions against him which she did at paragraphs 35 - 43. In my view this showed a failure to understand the judge’s decision or the Home Office case (though this might have been presented more clearly than it was before her). It was not necessarily the case that the person who made the visa application in Brussels in December 2006, and the one who arrived here in March 2007 were one and the same; and we now know, thanks to the finger-prints, that they were not.
11. On the other hand, the appellant accepted that the photographs produced on the visa application were of him, and that the passport on which he arrived in this country was in the name of Thierno Mamoudou Bah. In my view the judge was fully entitled to infer, as she did, that, though the application was not made in person by the appellant in Brussels on 6 December 2006, it was made for his benefit. While finger-prints of visitors are not routinely checked on arrival, the appellant’s appearance would certainly have been compared with the photograph on the passport on which he arrived.
12. As will be remembered (see 3), the appellant first claims he was actively wanted by the Guinean authorities following his involvement in the demonstration of 10 January 2007; and it was following the news of the warrant issued for his arrest on the 23rd that his step-father told him to get photographs taken. Those photographs could not, on the appellant’s version of events, have been the ones used to get the visa on 6 December 2006, and the judge was fully entitled to reject his case about why he had to leave Guinea in January 2007.
13. That was not the end of this appeal, however, because there was still the appellant’s claim about the events following his return to Guinea in March 2010 to be dealt with. At paragraph 51 the judge rejected his case on this too, partly because of the findings which in my view she was entitled to reach on the events of 2006 - 07; but she had also pointed out, at paragraph 50, that there was no credible explanation from him about why he should have chosen to return to Guinea in 2010 if those events had happened; and, at paragraph 51, that he had provided no evidence, other than what he said himself, to show that he had flown there then at all. All of these, standing alone or together, were conclusions she was fully entitled to reach, and the last two did not depend on her findings on the 2006 - 07 events.
14. However, these were not the only points taken by the judge: she had already spent some considerable time in dealing with ones about
a) the ‘country expert’ evidence before her.
This is no longer relied on, following a detailed ruling I gave on it on 24 April 2012; instead there is a fresh report from Emily Lynn Osborn, assistant professor of history at the University of Chicago, to which I shall return; and
b) the appellant’s dealings with GARAS in 2009 - 10
and points were taken on appeal about her treatment of these too.
15. (a) As I noted in my previous ruling, the judge was understandably led into error by careless mistakes made by the appellant’s previous main ‘country expert’, Ticky Monekosso; but no more need be said about that now, except to express the hope that no-one will ever put her forward in that capacity again.
16. (b) The judge recorded the appellant’s case before her about how he came to withdraw his asylum claim and apply for voluntary assisted return in 2007 in the terms set out at paragraph 24 of his statement: GARAS told him the Home Office were not going to process his claim; so he went to the Gloucester Law Centre and spoke to someone called Andy, who advised him that there was nothing to be done. The judge saw a contradiction between this and what GARAS had said themselves. There is now before me a letter of 13 June 2013 from Mr A Puddicombe of the Gloucester Law Centre, who Mr Richards was able to confirm is known as Andy, and I shall return to that shortly.
17. In a record of GARAS’s dealings with him, they set out a first visit on 9 December 2009, when he complained of having heard nothing from the Home Office since his arrest and claim in April. An advice officer called Farouq Ginwalla rang the Home Office, who told him the appellant had failed to turn up for an interview, and had been recorded as an absconder. Eventually on 22 December Mr Ginwalla managed to get in touch with the absconder team, who suggested he should make representations to them, if he wanted to proceed with his claim. Mr Ginwalla drafted a letter for the appellant to take with him to the Gloucester Law Centre, where he had an appointment on 13 January 2010.
18. On 18 January 2010 the appellant came back to GARAS, saying the solicitor he had seen at the Law Centre had told him he could do nothing: he wanted to apply for voluntary assisted return (the undated letter from Mr Ginwalla records that “At this point the client decided that he would like to go back rather than stay here, and make an application to go back with IOM [the International Organization for Migration]”): after refusing at first, because he was still on record as an absconder, IOM had eventually approved his application for voluntary assisted return on 1 March. Another advice worker at GARAS records that IOM were then given the appellant’s mobile number, and were to contact him directly.
19. A voluntary assisted return application, signed by the appellant, and countersigned by Mr Ginwalla on 19 January 2010, gives his asylum status as “application pending”, in preference to other alternatives on the form, and his reasons for wishing to return as
Asylum system not working - have been without support and chances not good
The form also includes a declaration (repeated in the one reproduced at p 27 on 8 February) that
I understand that, by returning with IOM’s Voluntary Assisted Return and Reintegration Programme, I will be withdrawing my asylum application in the UK.
Both documents give the appellant’s real name as Thierno Mamoudou Bah, while the application form shows Amadou Bah as an alias. At the top of the first page of the application someone has written “Rejected”.
20. The judge (paragraphs 48 - 49) regarded the appellant’s acknowledgement that he did have a asylum application pending as directly contradicting what he said he had been told by the Gloucester Law Centre, which she set out as follows
He has sought to explain that he was advised that he could not make his asylum claim as noted above and that Gloucester Law Centre told him his claim would not be successful and he understood he did not have a claim pending,.
21. At this point it is necessary to go into what the appellant had actually said in his statement (p 9, paragraph 24). It is not clear from the judge’s account of his oral evidence at paragraph 18 how, if at all, he had added to or explained that before her. What he said in his statement was that
After GARAS told me the Home Office were not going to process my claim, I did seek legal advice. I went to Gloucester Law Centre. I remember speaking there to someone called Andy. He told me there was nothing they could do. That is when I got really upset and decided to return to Guinea.
22. While there may be several ways of saying, in legal language, that nothing can be done, I did not think this account of events was necessarily different from the account of advice given to the appellant, as recorded in the IOM application form, that his chances were not good. As the judge noted, there was no evidence from Gloucester Law Centre to show what they told him; but neither was there anything to show that the appellant was saying that they told him he had no claim at all. The earliest account given of his case, following the appointment he said he had at the law centre on 13 January, was in the statement countersigned, and very likely drafted by Mr Ginwalla on the 18th, which suggested that he had been told that his chances were not good.
23. The letter from Mr Puddicombe now confirms that he saw the appellant on 13 January, and took initial details from him, without giving any advice at that stage; but a colleague had seen him on the 19th, and told him that “… on the facts given, any asylum claim that he made was unlikely to be successful at that time”.
24. Scope of re-hearing Taken together with the judge’s understandable mistake caused by Miss Monekosso’s evidence, I regarded her treatment of these points as errors of law which required a re-hearing; but not of the whole case. As I have already made clear at 12 - 13, the judge was fully entitled to her findings of fact about the events of December 2006 (when she found someone got the visit visa in Brussels on the appellant’s behalf) and January 2007 (when she consequently rejected his account of being pursued by the police).
25. Those findings were to stand, and the re-hearing was mainly to be concerned with the events of 2010, and in particular, as it turned out, the following questions :
(a) Did the appellant board a flight in this country on or about 4 March, arriving in Guinea the same day, and, if so, was he detained by the police on arrival?
(b) If so, was that reasonably likely to have had anything to do with his history of attending demonstrations in 2006, without apparent consequences, on which the judge made no express findings?
(c) Is his claimed arranged escape on 29 - 30 March consistent with the issue of a summons against him by the gendarmerie on 4 April, and is that summons reasonably likely to be genuine?
26. Appellant’s history This is what the appellant said in oral evidence about his activities in 2006: in June the trade unions were organizing demonstrations against the then military regime. The appellant first took part in one on 8 June: his rôle was as leader of the young people from his area, and they all went to join a protest meeting at a big stadium, carrying placards saying ‘Down with the Army’. However while they were still on their way there, they were stopped by the police: later they learnt that people had been shot in the Bambato area. Next he went on another demonstration on 16 June: this time they had slogans on their T-shirts. The appellant was not arrested on either of these occasions; but he said he came to know that the chief of his Bombola area had identified him as a ring-leader.
27. Cross-examined about the 2006 incidents, the appellant confirmed he had been the leader of his local anti-military group: then he was asked about what he had said at paragraph 13 of (2)
A friend of mine was the leader of this group - ELHADJI BARRY.
The appellant’s answer was that there might have been a mistake on the part of the interpreter. This was of course the interpreter used by his then solicitors, who at the end of the statement gave his name and signed an endorsement “I have read this statement back to the client in French”.
28. In the appellant’s second witness statement (2) of 22 October 2010 (confirming, with some comments, what he had said in statement (1) - 13 August 2010 - and at interview), he dealt with what followed the events of June 2006. The appellant said there was no more for him to do on the political front; so he went on helping his father in the family shop: he had explained in (1) that his father and brother had been killed in a car crash in 2006. Three months later his mother had married his paternal uncle , who had taken over the shop, and whom he regarded as his father from then on.
29. It was on 6 December that, as the judge found, someone applied in Brussels for a British visit visa for the appellant, impersonating him and using his photograph, and the passport in the name of Thierno Mamoudou Bah, of which a partial copy has now been produced by the appellant. The visa itself can be seen, indistinctly, on the copy; but the focus in evidence before me was on p 7 of the passport. Stamps showing the following can be seen on this: first there are oval ones, showing that someone using the passport had entered Guinea
(a) on 26 December 2006 (the last figure is unclear; but that date fits both the obtaining of the visa, and the using of the passport by someone to gain entry to this country on 1 March 2007); and
(b) on 4 March 2010 (all very clear this time)
Then there is
(c) a faint trace of a horizontal rectangular one, only just visible over the watermark at the bottom of the page.
30. The appellant went on to say that a photocopy of this, the visa and personal details pages of this passport had been sent to him by his paternal uncle, after the Home Office had challenged his account of going back to Guinea in 2010: a copy of the DHL waybill was also produced. He said that his uncle had got it from the man who had helped him on his way here in 2007, who worked at the airport in Guinea; but he hadn’t been able to get the passport itself, so far as the appellant knew.
31. Mr Richards suggested that the 2010 entry stamp might have been put on to a concocted photocopy: the appellant said he didn’t know how that might have been done, so I explained to him the quite simple process of applying a false rubber stamp to a copy, and then copying the copy. However the appellant insisted that the photocopy had reached him in the way already set out. He agreed that there were three stamps on p 7, though he could not explain stamp (c). The appellant went on to say that he had never seen the Thierno Mamoudou Bah passport itself, as someone who had been waiting outside the airport had had it back from the person who came with him in 2007
32. Contrary to the judge’s findings, the appellant claimed in (2), and elsewhere, that he had taken part in demonstrations in Conakry on 10 and 22 January 2007: he gave details of those in (1). There he also claimed that the Army had come to his house looking for him after the second of those demonstrations; so he had gone to lie low at his cousin’s. In March, with the help of bribes paid by his uncle, he had flown to this country, stopping only in transit.
33. Someone using the Thierno Mamoudou Bah passport certainly arrived in this country on 1 March 2007; but the appellant himself was first recorded here on 4 April 2009, under the name he now uses, Amadou Bah. He had been arrested in Gloucester; later he was seen by an immigration officer and interviewed under caution on the 5th. He is recorded as saying that he had last entered this country on 1 January 2009, with a friend of his uncle’s, whose name he didn’t know: they had travelled direct from Banjul in the Gambia.
34. The appellant went on to say at a screening interview the same day that “… he had travelled to Banjul from Guinea in 2007 after his Uncle managed to arrange his release from Prison with one of the Prison guards. … he had worked in Banjul in his friend’s Uncle’s shop prior to coming to the UK.” When asked about these interviews, he said he hadn’t told the immigration officer any of this; perhaps the interpreter was getting it wrong, as he (the appellant) was speaking French.
35. Following the appellant’s interviews in April 2009, he was accepted into the asylum process; but, for one reason or another, it seems he came to be recorded as an absconder, which is why the Gloucester Law Centre declared themselves unable to help him further. There is no reason not to accept GARAS and the Law Centre’s records of their dealings with him in December 2009 and January 2010, set out at 16 - 23.
36. In oral evidence the appellant explained that he had been homeless and with no money to buy food when he had gone to see GARAS. However, when he heard the Home Office had closed his case, and IOM had rejected his application for voluntary assisted return, he had called his paternal uncle to send him the price of a ticket home. His uncle, instead of sending him the money direct, had sent it to or with a lady known to him only as Madame Diallo, who had not only helped him get the ticket, but gone with him all the way back to Guinea.
37. All the appellant said he could remember about his journey of 4 March 2010 was that the plane had taken off about 0800, from which airport he didn’t remember, and taken him to Paris, where he had changed onto another, which reached Conakry between 1945 - 2000. If there had been any doubt about the possibility of such an itinerary, it would have been resolved by a print-out before me of a current quotation from the Air France site: arrival at Conakry at 1745 can now be achieved by way of Paris, leaving Heathrow on flights at various times between 0710 and 1010, at a total one-way fare of £1030.
38. Cross-examined about his journey, the appellant said Mme Diallo had called him in Gloucester, where he was living, on 1 March, and told him to come up to London two days before the flight. In due course a friend bought him a bus ticket, and Mme Diallo had been waiting for him at Victoria; then they had caught another bus to Lewisham, where she lived. At 0600 a friend of hers picked them up in his car and took them to the airport.
39. On landing in Guinea, the appellant said first his passport was taken; then his finger-prints. After about three hours, the officials dealing with him came and asked for his name, presumably meaning his present or real name, since they did not accept that he was the Thierno Mamoudou Bah named on the passport he was using. The officials said if he didn’t give it, they would still find it out sooner or later. So far as his family were concerned, his uncle knew he was coming on that flight, but it was impossible to get in touch from air-side with anyone; so he remained in custody, without his passport. However the appellant believed Mme Diallo, who had been able to enter Guinea herself, had got in touch with his uncle and let him know what had happened to him.
40. In statements (3) and (4), the appellant gave details of the ill-treatment, overcrowding and squalid conditions he said he had suffered in detention on return to Guinea. However during the night of 29 - 30 March 2010 his uncle was able to arrange for his escape, which, he explained in his oral evidence, had been effected through a guard he had paid off with about Guinea Francs 3m . The guard had come into his cell (which he said in (3) he shared with about ten other men), and told him to put on the uniform he was carrying, and follow him: the appellant was to leave the country, or the guard would get into trouble himself. For some reason the appellant was also required to smoke a cigarette, given him by the guard.
41. When the two of them arrived at the back gate of the prison, the guard told the appellant to go on out, and his uncle would be waiting for him in a car close by, which he was, with the appellant’s cousin, to whose house he was taken. There he stayed for about six months - he must have meant weeks, since he landed in Brussels on 20 May - until his uncle was able to arrange a Belgian visa for him for a very much larger sum than had been needed for the guard, the equivalent of £6,000. Meanwhile on 1 April the summons (see 7) was brought to the appellant’s family house, where his uncle and mother were living; but since the appellant was not to be found there, the police officers who brought it left it with his uncle. The appellant said he would be afraid for his life if he returned to Guinea, given what had happened to him as a result of his organizing demonstrations in the past.
42. Cross-examined, the appellant said he didn’t know what passport he had used to get to Belgium, since Ibrahim, his uncle’s agent, had showed it to the immigration officers, and kept it afterwards; but it did have his photograph in it. When he claimed asylum, the appellant said he had given his real name of Amadou Bah to the Belgian authorities. He accepted that his troubles in 2006 had come from his opposition to the then military government, which had since been replaced by a civilian President, Alpha Kondé. However the appellant said he didn’t know whether Kondé had been for or against the military government himself; but recent demonstrations, in which 12 people had been killed, meant that he was still afraid to return.
43. History of Guinea I have taken this partly from the ‘Freedom House’ extract on Guinea, dated 16 January 2013, to which Mr McCarthy referred me, and partly from Professor Osborn’s report. Guinea was ruled from independence from France in 1957 by President Sékou Touré, till his death in 1984. Then a military junta, led by Lt-Colonel Lansana Conté, took over and manipulated the democratic process so as to remain in power till he too died in December 2008, following widespread demonstrations and the declaration of martial law in 2007.
44. On the death of Conté, Capt Moussa Dadis Camara took over as President in a coup, but promised to hold elections in 2010. Demonstrations in September 2009 were suppressed with some savagery, and in December that year Camara was shot and wounded by the commander of his guard, since when he has been under treatment or in exile abroad. The defence minister, Gen Sekouba Konaté, took over, with Jean-Marie Doré of the Prodemocracy party as interim civilian Prime Minister.
45. Elections in June 2010 led to a narrow overall victory for Alpha Condé of the RPG party, from the Malinke tribe, in a run-off, held in December 2010, following which Condé was sworn in as President: Professor Osborn says there were suspicions that the military had helped to rig the result in his favour. Despite those suspicions, what Professor Osborn describes as ‘hostility from within the military’ led to a coup attempt against President Condé in July 2011, which he managed to defeat.
46. In the 2010 run-off, President Condé had narrowly [52.5: 47.5%] beaten Cellou Dalein Diallo, of the UFDG party, and a Fulani. Diallo lives in Senegal; but in April 2011 he made a visit to Conakry, where a crowd of over 5,000 of his mainly Fulani supporters were at the airport to welcome him. However, the event turned sour when troops fired on the crowd, killing four and wounding 20: 70 people were arrested, but there was no official investigation afterwards. Nor have there so far been any legal proceedings following the arrest of 25 soldiers and 13 civilians over the July coup attempt. Meanwhile Diallo remains in Senegal.
47. Professor Osborn’s opinions Professor Osborn sought to help answer the following (now re-numbered) questions of fact I posed in my preliminary ruling:
(a) Was the appellant detained by the police on arrival in Guinea in March 2010?
(b) If so, was that reasonably likely to have had anything to do with his history of attending demonstrations in 2006, without apparent consequences, on which the judge made no express findings?
(c) Is his claimed arranged escape on 29 - 30 March consistent with the issue of a summons against him by the gendarmerie on 4 April, and is that summons reasonably likely to be genuine?
48. (a) Professor Osborn records much the same account of events from a telephone interview she had had with the appellant on 4 June as he gave in evidence on the 27th: whether the appellant had told his family members in general, or just his paternal uncle, does not perhaps matter, since the remainder of Professor Osborn’s conclusions on this point are predicated on the assumption that “It is possible that word traveled about his return to Guinea and that soldiers and government officials received word that a person of interest [my emphasis] was arriving at the airport”.
49. Professor Osborn goes on to say that she considers it unlikely that any information system existed by which the officials at the airport could in a few hours have linked the person arriving on the Thierno Mamoudou Bah passport in 2010 to the Amadou Bah who had been arrested back in 2006, without his telling them himself he was that person. She notes that his Fulani tribe have met great hostility from the government in recent years, despite changes in the régime; and that
Given the abysmal state of Guinea’s justice system … it is not unlikely that [the appellant] could have been … held … as he described, until the end of March 2010, when his uncle orchestrated his escape from prison.
50. (b) Professor Osborn notes the history of events since the appellant left Guinea in 2006, and his return (as he claims) “… at a time when the country was under considerable international scrutiny”. She goes on to opine that
Despite that pressure, it is not unlikely that low-level bureaucrats (who were likely of Malinke and Soussou ethnicity) who worked at the airport and elsewhere sought to mitigate [sc. ‘militate’] against a possible “Fulani” take-over of the government. And so they were particularly attentive to anyone, particularly able-bodied young men who had lived abroad, who might have the capacity to mobilize and influence Fulani voters.
Professor Osborn goes on to deal with events back in 2005 - 07; but here I see no need to go further into what she says than Mr McCarthy found it necessary to refer me, which I shall do in due course.
51. (c) The point of this question, which I should have thought would have been obvious, even for an academic without legal training or experience, was to find out whether there were any reason why the Guinean authorities should have issued a summons, rather than a warrant of arrest, on 4 April 2010, for someone who they well knew was at large, and so unlikely to answer a summons, following his escape from their custody on the night of 29 - 30 March. The distinction between the two processes is not only the same in American and English common law, but one also drawn in the criminal procedure of Guinea, no doubt following a French model: see the descriptions of the 2007 warrant (‘Notes de Recherche’) at 3, and the 2010 summons (‘convocation’) at 7.
52. Instead of confronting this point, and either providing some explanation for it from her knowledge of Guinea, or declaring her inability to do so, Professor Osborn says this (at paragraph 27):
I cannot attest to the authenticity of the document [the summons]. I am able to attest to the working of Guinea’s prison system and to the arbitrariness of the judicial system.
She offers further details about the judicial system in an appendix; but none of them sheds any light on the question asked. Again I shall deal with Professor Osborn’s further comments as referred to by Mr McCarthy.
53. Submissions Mr Richards’s submissions were short, and directed to the main point in issue, which is the appellant’s credibility, so my not dealing with them further means no criticism of him. Mr McCarthy filed a lengthy skeleton argument: section A, dealing with credibility, addresses the points made against this appellant with reference to some authorities, so well-worn as to be trite. However, in one case, partial citation has given an impression of disingenuousness: no doubt nothing worse than carelessness was involved, but the position needs to be put right.
54. What is put forward as a direct citation from PK (EEA regs: Jia) Sri Lanka  UKAIT 00043 is a secondary one, from a much older decision (Chiver (Asylum; Discrimination; Employment; Persecution) (Romania)  UKIAT 10758) which should not now be used without referring to the explanation given in PK: the passage cited appears in quotation marks, and the reference to ‘adjudicator’, anachronistic even in 2008, is the give-away, for those with long memories.
It is perhaps worth saying again what Chiver decides, as it is so often misstated in general, although we are glad to say seldom with the mendacious particularity adopted here. Chiver was an appeal by the Secretary of State against the determination of an adjudicator who had allowed an appeal despite having concerns about particular aspects of the credibility of the appellant’s story. The Secretary of State argued essentially that, given the concerns that he had, some of which were unresolved, the adjudicator was wrong in law, on the evidence before him as he assessed it, to allow the appeal. On that issue the decision of the Tribunal was that:
“It is perfectly possible for an adjudicator to believe that a witness is not telling the truth about matters, has exaggerated his story to make his case better, or is simply uncertain about matters, and still to be persuaded that the centre piece of the story stands”.
The Tribunal did not decide that an adjudicator was obliged to believe a story if uncertainties, exaggerations, lack of memory or lies went only to details. What it did decide was that the existence of such difficulties is not in law a bar to an adjudicator (or, now, an Immigration Judge) believing other parts of what is said if, having taken everything into account, he decides it right to do so.
55. The other authority referred to under, though not exactly on credibility is Daoud (Mohd.)  EWCA Civ 755; the relevant passage is this, per Sedley LJ, writing at paragraph 11 for the court:
To claim falsely that you have been persecuted in the past because of your ethnicity does not mean that you may not face risks in the future because of it. As before, if the linkage of allegations had some binding legal force it would work both ways, with completely intractable results.
56. In this case, despite some suggestions to the contrary by Professor Osborn, there is not, and could not be any arguable case that the appellant faced persecution simply because he is a Fulani, and Mr McCarthy realistically did not argue that, either in writing, or at the hearing. One might also point to the 47.5% share of the final poll achieved by the Fulani candidate in the 2010 elections.
57. If I believed the appellant’s account of what happened to him in 2006 was reasonably likely to be true, then of course I should have to consider whether or not it would lead to any real risk on return to Guinea for him now, whatever findings the judge or I might have made about subsequent events. However, it would be not only artificial, but wrong to consider any aspect of the appellant’s credibility in isolation, without having his history as a whole in mind.
58. The points made by Mr McCarthy in relation to the appellant’s credibility on the events of 2006 themselves are set out at section B of his skeleton argument. He notes that the appellant claimed to have taken part in demonstrations, organized by the trade unions, in the summer of 2006, and gave specific dates for those in which he was involved, 8 and 16 June. Professor Osborn confirms that such demonstrations took place from 2005 - 07, and gives a specific date of 12 June 2006 for the one in which she describes students being involved.
59. A reference in the appellant’s statement (1) to one of the grievances in the general strike of 10 January 2007 being about the release of the then Prime Minister from detention over allegations of embezzlement was said to be borne out in an extract from the UN’s IRIN web-site. This is dated 7 April 2006, and entitled ‘Sacked prime minister speaks out’. However, curiously enough, not only is the subject of the article quoted as denying that he was even under house arrest; but his name is given as Cellou Dalein Diallo, who is a Fulani, and curiously enough was in 2010 and afterwards to become the main opponent of the current President Condé: see 46.
60. At section C, Mr McCarthy refers to the evidence about the appellant’s dealings with the Gloucester Law Centre, already set out at 23, and suggests that this, and the IOM application, provide support for the appellant’s own account of his reasons for wanting to leave this country in early 2010. There is however no evidence, apart from his own, that he actually did so.
61. At D, Mr McCarthy refers to the Guinea arrival stamp on the copy pages from the Thierno Mamoudou Bah passport. Then he deals with a point taken by the Home Office in the refusal letter, but already dismissed by me at 37. E relates the appellant’s account of his history on arrival there; at paragraph 30, points (i) and (ii) refer to the turbulent state of Guinea at the time, already mentioned, and (iii) to the ‘active word of mouth system’, mentioning Professor Osborn’s views, as set out at 48, and information passed on by the neighbourhood chief (see 25). There is also a reference at (iv) to Professor Osborn’s suggestion at 50, about the likely situation on the appellant’s return to Guinea.
62. At paragraphs 31 - 32, Mr McCarthy refers to evidence from the State Department and ‘Freedom House’, and from Professor Osborn, about mass arrests, detention and ill-treatment continuing into 2012; but I do not see anything ‘strikingly similar’ to the appellant’s account in the items he notes: such events are common to most countries from which asylum-seekers come.
63. Mr McCarthy did not add anything significant in his oral submissions on the appellant’s credibility, except that he gave essentially his present account in his original asylum interview in 2010, and has stuck to it ever since. The rest of his submissions deal with the risk for the appellant on return to Guinea, if his account were accepted, and I shall deal with them if I do.
64. Findings of fact It is perhaps unnecessary to mention that it is only necessary for the appellant to persuade me that a given fact is reasonably likely to be true for me to take it into account; or to point out that, while I shall give my findings on individual points as I go, I have not reached any of them without considering the evidence as a whole.
65. The appellant is an intelligent and above all resourceful person, as his history shows. I shall start this discussion at the point where official records of him (rather than of someone who may have been him, using the Thierno Mamoudou Bah passport) begin in this country. This was on 4 April 2009, when (see 32) using his present claimed real name, he told the immigration officer at his screening interview that he had entered this country on 1 January that year, having spent the time since his uncle arranged his release in 2007 working in the Gambia.
66. The appellant’s only explanation for this was that the interpreter might have mis-translated what he had said in French, the main official and business language of Guinea, and the one in which he had agreed to be interviewed. I cannot see any reason why translation from the French could possibly have caused so significant a deviation from what the appellant now claims is his true account, and I do not accept that this was what happened.
67. While it is quite true, as Mr McCarthy suggested, that the appellant has been entirely consistent (with one exception, to which I shall turn in the next paragraph) in the account he has given since his full asylum interview on 16 August 2010, that consistency has to be considered both in the light of his resourcefulness, and of what I find he had said in 2009.
68. The appellant’s blaming the Home Office interpreter for what he claimed had been the mis-translation of what he had said in 2009 ties in with the other exception to his general consistency, which lies in his blaming his own solicitors’ interpreter (see 26) for the mistake he says was made in recording his statement (2) on 22 October 2010. Again the interpreter used French, and carefully recorded that he had read the statement back to the appellant in that language: I do not accept that any error in translation could have caused the appellant to be recorded as saying that Elhadji Barry had been the leader of their local group, if he had really had that rôle himself.
69. These findings against the appellant both relate to the part of his evidence concerned with events before his claimed return to Guinea in 2010, the credibility or otherwise of which is the crucial issue of fact before me. Turning to the evidence about that, the only specific documentary support for the appellant’s account of his arrival there appeared at the final hearing, its provenance vouched for by a DHL waybill. It was however not clear how the appellant’s uncle could have got a copy of the passport, but been unable to get the document itself from a well-placed friend at the airport, as he claimed.
70. Leaving the provenance to one side, the passport page itself (see 28) has some curious features: while there is nothing to indicate that the Guinea re-entry stamp of 26 December 2006 (a) is not genuine (and it probably is, since it fits the use of the passport in Brussels earlier that month), the one of 4 March 2010 (b) is very much clearer. There might be nothing suspicious in that in itself, since no doubt the Guinea immigration authorities get themselves a new rubber stamp from time to time; however, it has to be considered together with the existence of the third faint, but clearly perceptible stamp (c).
71. The appellant had no explanation for stamp (c) at all, and disclaimed all knowledge of how (b) could have been applied to a photocopy, so as to make it look like a genuine entry. I do not believe he is so naïve as not to have realized that. It is quite clear from the faint remains of stamp (c) that the passport page has been tampered with in some way, and I have no doubt that this was also done by applying stamp (b) to a photocopy of the original document.
72. Going on to the only other documentary trace of the appellant’s return to Guinea, which is what is said to be the copy of the 2010 summons, the fact that the authorities should have issued a summons, rather than a warrant as they were said to have done in 2007, on this occasion at a time when they well knew the appellant had already escaped from custody, itself raised a serious question as to the authenticity of the document. I had hoped that if a ‘country expert’ more worthy of the name than Miss Monekosso were found for the appellant, then some further light might be shed on this.
73. While Professor Osborn certainly is such a person, as already seen (51 - 52), she failed either to shed any such light on that question, or to confront it at all. I do not accept her suggestion that there was any reason for the Guinean authorities to have regarded this appellant as a ‘person of interest’ (see 48) on his claimed return to the country in 2010, given the judge’s unchallengeable finding that he had never been arrested in 2007 (which she does not seem to have taken into account), following which he had spent three years away, during which time the turbulent events set out at 43 - 44 had taken place in Guinea.
74. Nevertheless, whether I am right or wrong on that last point, Professor Osborn’s failure to deal at all with the obvious question of why the Guinean authorities should have simply left a summons with the appellant’s uncle, when they knew he was already an escaped prisoner, leaves what is said to be the copy of that summons without any support, independently of the appellant’s own evidence, as documentary confirmation of his presence in Guinea in 2010.
75. While the appellant certainly explored the possibility of voluntary assisted return in January and February 2010 with the Gloucester Law Centre and with GARAS, and just as certainly came back to this country from Brussels that July, there is neither any documentary confirmation of his actual journey to or back from Guinea; nor any from the Belgian authorities as to where he had arrived in Brussels from. In the absence of any exit controls in this country for some years before that, it would not have been hard for someone as resourceful as this appellant to find a means of presenting himself at the point of entry to a neighbouring European country without leaving any trace of the means.
76. Nor do I consider that it would have been past this appellant to use the dealings he had had with the law centre and with GARAS, once he had been advised his 2009 claim was unlikely to succeed, by concocting a false account of his return to Guinea in 2010, supported by a not only true, but verifiable history of those dealings, and of his return to this country from Brussels.
77. Given those findings, and the ones I have already reached against the appellant, both on points which did (69 - 74), and did not (65 - 68) concern the appellant’s claimed return to Guinea in March 2010, I am not prepared to accept that it ever took place. In my view he has shown himself a thoroughly unscrupulous claimant, not only in inventing it, but in concocting evidence to support it, and I am not prepared to accept either that he ever took part in any demonstrations in Guinea in 2006, as to which the judge made no express finding; nor, as I have already (11 - 12) made clear, is there any reason to go behind her negative findings on claimed events there in 2007.
78. That leaves the appellant without any relevant political history in Guinea at all, which in my view marks the end of his claim. Even if I were wrong about the 2006 events, however, he does not claim to have been arrested by the Guinean authorities at any time before the Thierno Mamoudou Bah passport was used to get a visa for him in Brussels that December; and, despite what he says about being identified by his local chief, he seems to have gone on helping his uncle in the family shop, so I do not accept that this happened either.
79. The result is, that even if the appellant did take part in any demonstrations back in 2006, I do not accept that the Guinean authorities would have anything on record against him on return now in 2013. I do accept that he is a Fulani; but, as made clear at 56, that could not by itself be the basis of any successful claim of Convention persecution or ill-treatment.
(a judge of the Upper Tribunal)
 A number of others were posed in my original ruling, which do not now arise: of course Professor Osborn dealt with those she could under the reference letters given there; but I shall use those in the present decision in dealing with her evidence.
 It seems Muslims in Guinea practise the levirate.
 nearly £400 at the date in question