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United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments


You are here: BAILII >> Databases >> United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments >> UI2025001088 [2025] UKAITUR UI2025001088 (9 May 2025)
URL: http://www.bailii.org/uk/cases/UKAITUR/2025/UI2025001088.html
Cite as: [2025] UKAITUR UI2025001088

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IN THE UPPER TRIBUNAL

IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2025-001088

First-tier Tribunal No: PA/01320/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

9 th May 2025

 

Before

 

UPPER TRIBUNAL JUDGE HIRST

DEPUTY UPPER TRIBUNAL JUDGE STAMP

 

Between

 

MS

(ANONYMITY ORDER MADE)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr Moriarty, counsel instructed by NW Kent Citizens Advice

For the Respondent: Mr Ojo, Senior Home Office Presenting Officer

 

Heard at Field House on 2 May 2025

 

Order Regarding Anonymity

 

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity because this appeal relates to his claim for international protection.

 

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court .

DECISION AND REASONS

Background

1.        The appellant appeals, with permission, the decision of the First-tier Tribunal dated 20 January 2025 on the basis that it contains an error on a point of law. The judge had dismissed the appeal against the respondent's refusal of his protection claim by a decision dated 7 July 2023.

2.        The appellant is aged 21 and a national of Cote d'Ivoire. In 2017, the appellant had been living with his father, stepmother, mother and younger sister in the same household when, after having eaten a meal prepared by the appellant's mother, his father and stepmother became ill and were taken to hospital. Subsequently, the appellant's mother was accused of poisoning them, albeit that the entire family had eaten the same food. Having been informed of the accusations, the appellant together with his mother and sister fled to Daloa where they stayed with his mother's youngest sister (Ms B). Following the death of his father, his mother received abusive and threatening phone calls and she was rejected by her family.

3.        At the end of 2017, the police and the paternal family came to Ms B's house in search of the appellant's mother and arrested Ms B. The appellant was informed of this by Ms B's husband (Mr B) who put him on a coach for to Segule where he stayed for 6 months. He then travelled to Morocco via Mali and Algeria, where he stayed for over a year. In spring 2020, travelling with Mr B he travelled to Spain in a dinghy and train to France and arrived by boat in the UK in June 2020.

4.        The appellant made a protection claim on 16 June 2020 which was refused by the respondent on 11 July 2020 on the basis that his fear of persecution was not for a convention reason and that the appellant's version of events lacked credibility due to a number of inconsistences. In addition, the appellant was considered to be able to safely relocate to Cote d'Ivoire and there were no grounds for granting humanitarian protection or a successful claim under Article 8 of the ECHR.

5.        In preparation for the appeal the appellant had commissioned an expert report (the report) from Ms Ticky Monekesso (the expert) dated 8 June 2024 in support of his claim.

6.        The appeal was heard by the judge on 25 November 2024. By a decision dated 20 January 2025 he dismissed the appeal on grounds that (i) he placed no weight on the expert report particularly because of the lack of the expert's qualifications and the contents of the report not clearly distinguishing opinion and objective evidence, (ii) the appellant's account of events was not seen as credible (particularly his narrative of travelling through Africa to Europe was found to be "incredible" (paragraph 51)); and (iii) the appellant would be able to internally relocate on return to Cote d'Ivoire. Accordingly, the appellant had not, at the lower standard of proof, established he would face persecution or serious harm on a return to his home area or, alternatively, the appellant would have sufficiency of protection and available internal relocation. In addition, the appellant would not face significant obstacles in integrating on return nor would such a return result in the unjustifiably harsh consequences necessary for a successful Article 8 claim.

7.        On 27 February permission to appeal was granted by First tier Judge Parkes on the following basis:

" ...The grounds argue that the Judge erred in the approach to the expert's report and did not give the Appellant's representative the opportunity to address the concerns raised. It is also argued that the Judge's approach to the report and other evidence was flawed having regard to the area the Appellant was from and the lack of other evidence relating to the issues.

It is arguable that the Judge erred in the approach to the expertise of the author of the report and the evidence it contained relating to issues not addressed elsewhere.

The grounds disclose arguable errors of law and permission to appeal is granted."

Submissions

8.        Mr Moriarty referred to the appellant's grounds of appeal prepared by counsel appointed by the solicitors previously acting for the appellant. Mr Moriarty submitted that the appellant had not been treated fairly as the judge had rejected the report in its entirety and in failing to identify the level of his concern at the prehearing discussion had not given the appellant an appropriate opportunity to address this issue by seeking an adjournment to consider obtaining an alternative report. Indeed, over half of the decision was devoted to a consideration of the expert's qualifications and fitness to opine with only the minority of it focussed on the appellant's protection claim. Further, in absence of relevant country guidance without some expert guidance it made it unfairly challenging for the appellant to be able to make his case given the credibility of his account relied on an understanding by the decision maker of the particular social customs and attitudes prevalent in Cote d'Ivoire.

9.        Mr Moriarty additionally submitted that judge's findings that the expert did not have the necessary expert to opine on the matters in the report and further that the report was, at paragraph 35, "misleading", impacted unfairly on the assessment of the appellant's credibility as the two issues were inherently intertwined.

10.    The second ground of appeal was the judge had made his decision based on a material misunderstanding of a factual matter. The judge at paragraph 49 said:

".... After the alleged poisoning, when the Appellant was aged 14, the Appellant and his mother lived safely for a few weeks with Ms B, the only family the Appellant's mother could turn to. No reasonable explanation has been provided as to why the family or the authorities would wait a few weeks before seeking out the Appellant's mother".

This was based on a misunderstanding that the appellant and his mother had stayed together after the alleged poisoning when in fact they had been hiding in different locations and had lost contact with each other. Accordingly the conclusion of the judge set out in that paragraph could not fairly be made.

11.    Mr Ojo adopted his Rule 24 response. The judge had a clear basis to reject the report based on the expert's lack of qualifications and experience in relation to Cote d'Ivoire. Indeed, the judge had, as already pointed out, spent a considerable part of his decision explaining his reasoning for his rejection of the report and had raised his concern at an early stage, but the appellant's then counsel had elected not to address the judge at that stage but in her later submissions. In addition, counsel should have been on notice with the issues relating to the expert's credibility given the concerns raised in the respondent's review which were set out in paragraph 12 of the decision. In addition, counsel for the appellant should have been aware that the expert's reports had been the subject of adverse judicial comment in two decisions of the Upper Tribunal, MD (Women) Ivory Coast CG [2010] UKUT 215 and EMB (republic of Congo) v SSHD UI-2023-003904 unreported, highlighted in the report itself, where, in the former case the expert's knowledge on Cote d'Ivoire was expressly questioned and her evidence treated with caution.

12.    Mr Ojo, by way of example of the difficulties with the report, directed us to page 94 dealing with poisoning and witchcraft belief in Cote d'Ivoire and the footnote 13 providing the source for the following commentary. The commentary is, in fact, a verbatim reproduction of the source article which, itself, is a blog with no sourced material and is the view of the author who is campaigning against the practice children being accused of witchcraft. We were also directed to paragraph 29 of the decision where the judge noted the lack of source material on criminal law matters and that paragraphs 119 to 121 of the report were a copy and paste from Wikipedia without any attribution.

13.    Mr Ojo also referred us to AAW (expert evidence-weight) Somalia [2015] UKUT 673 indicating any opinion unsupported by an objectivity and review of material facts is likely to be afforded little weight by the Tribunal and to SSHD v Harsh Lata [2023] UKUT 163, which emphasises the need for the parties to identify and address issues in the appeal. Given the length of the report and its discursive nature, he submitted it was incumbent on the appellant to identify the relevant parts relied on to support his case rather than expect the judge to trawl through it to identify the appropriate supporting evidence.

Analysis

14.    Turning to the first ground of appeal relating to the judge's treatment of the report, the judge was very clear in paragraph 34 :

" I find the report to be unreliable on the selection of shortcomings discussed above. In fact, in my view, the extent of the unreliability of Ms Monekosso's report goes further and into being misleading and I take no assistance from it."

15.    The judge was also clear as to why he had come to that conclusion. He did not consider the expert to have the qualifications or experience to comment on Ivorian law (paragraph 32) and referred at length to the difficulty in discerning the meaning of the report in places and the lack of distinction between objective fact and opinion given the lack of reference to source material (paragraph 34). Although Mr Moriarity did not seek to advance the argument set out in the grounds of appeal drafted by previous counsel, we cannot accept the contention made there the "judge did not directly reject the substantive part of the report but merely the formal side of it" when that was clearly not the case on the face of the decision. On any view the report had significant deficiencies. The content and tone of the report were both such as to indicate that the expert had not understood or complied with her duties to the tribunal and we consider the judge's observations were entirely reasonable.

16.    Mr Moriarity did not, in our view wisely, attempt to challenge the judge's conclusions on the expert's lack of qualifications or the quality of the report's findings but asked us to consider whether, given the wholesale rejection of the report, this resulted in the appellant having been unfairly treated given the importance of expert evidence to support the credibility of his narrative particularly where there was no relevant country guidance to assist the decision maker. In essence, he submitted that the judge should, at the outset of the hearing, have indicated his fundamental concerns about the report and allowed an adjournment for an alternative report to have been prepared given its crucial importance to the appellant's case.

17.    We do not accept that contention. It should have been apparent at an early stage of the proceedings to the appellant's legal representatives at the time that the expert qualifications and the quality of the report would have been in issue. First, the cases of MD (Women) and EMB (Congo) which directly threw doubt on this expert's qualifications and her understanding of her role were expressly referred to in the report. In addition, it should have been clear that the expert's failure to engage with or address any of those concerns would inevitably have given rise to issues of credibility and competency with significant implications for their client's protection claim. In addition, the respondent specifically raised the issue of the expert's qualifications as well as number of concerns with the report in paragraph 7 of her review dated 5 September 2024 and which were referred to verbatim in paragraph 12 of the decision. The credibility and expertise of the expert was therefore squarely in issue in the appeal. Finally, the judge at the outset of the hearing did give the appellant's then counsel an opportunity to address him as a preliminary matter on the report but this was declined and the matter was dealt with in closing submissions. The appellant's previous legal representatives should have been put on notice at an early stage that significant criticisms of the expert and the report would be raised at the hearing and having declined the opportunity to address the issue at a preliminary stage it cannot now be said that the appellant was treated unfairly in the manner in which judge dealt with the expert and the report.

18.    Some concern was raised over the length that the judge devoted in his consideration of the expert and her report and that this indicated an undue focus on this issue at the expense of a rigorous analysis of the appellant's protection claim. We do not consider this to be fair comment. The judge had decided he could place no weight on the 80-page expert's report and it was incumbent on him to give his reasoning for doing so. Given the previous case law dealing with this particular expert, her injudicious replies to the judicial observations made and the various issues arising from the report itself, the judge was required to set out his reasoning in a more full and detailed manner than he might otherwise have done.

19.    Of course, had the First tier Tribunal been presented with a more robust and cogent expert report or had the benefit of additional objective evidence, it might have reached a different conclusion on the appeal. However, this is an error of law hearing and we are only concerned with the judge's approach to the case as it was presented to him. The judge made it clear that he applied the lower standard of proof (paragraph 49) and looked at the evidence in the round on a holistic basis in assessing the appellant's credibility. Accordingly, this ground of appeal discloses no error on the part of the judge.

20.    The second ground of appeal relates to the judge's conclusions set out at paragraph 49, which it was submitted were based on a misunderstanding of the evidence that the appellant and his mother were staying together after the allegations of poisoning had been made when, in fact, they had separated and were staying at different locations and this had allowed the judge to mistakenly question whether the appellant's safety was credibly at risk. Reviewing the appellant's witness statement at paragraphs 12 and 13 it does suggest that he and his mother did stay together for a time after the allegation was made and whilst threats over the phone were made during this time no explanation was given for the delay of a "few weeks" before the paternal family and police made a visit. Accordingly, the judge's observations as to the reliability of the appellant's evidence on this point were fairly made. In any event, we do not believe any error was material when looked at the decision as a whole given this was a relatively minor inconsistency when viewed in light of the judge's wider concerns on credibility. Accordingly, we find no error of law was made by the judge.

 

Notice of Decision

There was no legal error in the decision of the First tier Tribunal. Accordingly, we decline to set the decision aside. The appellant's appeal is therefore dismissed.

 

 

Mark Stamp

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

 

9 May 2025

 

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