United Kingdom Asylum and Immigration Tribunal

 


AC (Witness with refugee status – Effect) Somalia [2005] UKAIT 00124

ASYLUM AND IMMIGRATION TRIBUNAL

Date of hearing: 5 August 2005

Date Determination notified: 18 August 2005

Before
Mr H J E Latter (Senior Immigration Judge) Mr C P Mather (Senior Immigration Judge)
Between

AC	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the appellant: Mr M O'Connor, Counsel instructed by Hersi & Co Solicitors For the respondent: Ms S Leatherland, Home Office Presenting Officer.
DETERMINATION AND REASONS

This decision deals with the proper approach to the evidence of a witness who, it is alleged on similar facts to those put forward by the appellant, has been granted refugee status.  The fact of the grant is capable of carrying weight but the grant is not to be equated with an Immigration Judge's determination following a hearing.  An Immigration Judge's decision is likely to be fully reasoned and made after the evidence in support has been tested.  In contrast a grant of status by the Secretary of State is often an administrative decision based only on the papers.

1. The appellant is a citizen of Somalia. She came to the United Kingdom in June 2004 from a refugee camp in Kenya. On 9 August 2004 the respondent issued a notice indicating that, having refused to grant her asylum, he refused her leave to enter the United Kingdom. He indicated that he proposed to give directions for her removal to Somalia.
2. The appellant appealed that decision and, on 7 April 2005, an Immigration Judge (Mr J R A Hanratty) heard the appeal. In the determination which he signed on 12 April 2005 he dismissed her appeal on both asylum and human rights grounds.
3. The appellant applied for review. On 11 May 2005 an order was made that the Immigration Judge's decision be reconsidered.
4. The issue in the case was whether the appellant is a member of the clan which she claimed. She asserted that she was a member of Reer Hamar.
5. The Immigration Judge found that the appellant was not a credible witness and did not accept that she was a member of that clan.
6. There are six grounds of appeal and we started by asking Mr O'Connor to elaborate on Ground 6. The language used was not clear and we wished to ensure that we fully understood the import of what was being asserted. He told us that he was no longer relying on Ground 6.
7. He went on to say that he was only proposing to rely on Ground 1 and part of Ground 2. The majority of the hearing was spent in considering Ground 1.
8. The appellant had called as a witness her aunt, Deeqa Mohammed. She was granted refugee status in the UK following her application and interview. It has been established, through DNA testing, that she is the appellant's aunt as claimed. Although he did not refer to it expressly in the determination, the Adjudicator had in the papers before him Deeqa Mohammed's SEF statement and interview. Mr O'Connor argued that it must be assumed they are the bases upon which her status was granted.
9. The Immigration Judge was clearly aware of the status of the appellant's aunt, because he says so. But he went on to find that, not only did he disbelieve the appellant, but he did not accept that her aunt was a member of the clan either. He said, somewhat robustly, at paragraph 46,

"The fact that this aunt managed by deception to mislead the Home Office on an earlier occasion does not mean that I will be similarly misled".

10. Mr O'Connor's main complaint was that the Adjudicator did not approach the aunt's status, and its significance, appropriately. He argued that compelling evidence was needed to go behind the grant of refugee status to the aunt. He did this by referring to three authorities. The first was Devaseelan [2002] UKIAT 00702. This well known authority provides that, in a hearing before a second Adjudicator, the findings of the first Adjudicator relating to that same appellant should be the starting point for the fact finding process. It went on to give guidance as to when it is appropriate to depart from the first Adjudicator's findings. This guidance, at paragraph 39, is well known and we shall not repeat it here.
11. He then went on to consider TK (Consideration of Prior Determination – Directions) Georgia [2004] UKIAT 00149 which was a decision where the situation was slightly different. In that case an appellant had previously given evidence in her husband's case and been disbelieved. When it came to her own appeal the Tribunal considered that the Adjudicator's findings about her evidence in her husband's case were appropriate to be taken into account by the second Adjudicator. The Tribunal said, at paragraph 19:-

"… Unless some very good reason was advanced to the contrary, for example, compelling new evidence to show that X's evidence (which originally had been disbelieved) was mistakenly appraised by the original Adjudicator, a future Adjudicator is, in the Tribunal's view, not merely entitled to read the Determination in X's case but also to treat it as determinative as to X's account."

That is the source of the assertion by Mr O'Connor that there needs to be compelling evidence before the Immigration Judge in the instant appeal should have rejected the aunt's (and therefore the appellant's) clan membership. He argued that there had been no such compelling evidence.

12. The third authority was SS(ILR, Article 8, return) Sri Lanka [2004] UKIAT 00126 . We found this to be of less assistance. The question was whether, when somebody had been granted indefinite leave to remain as a refugee some years earlier, it could properly be found that it was safe for him to return when an Article 8 claim (by someone else) came to be considered at a later date. The thrust of the decision was that the earlier decision was not necessarily determinative but there would need to be a proper basis for deciding that circumstances had changed significantly since the grant of indefinite leave to remain. That did not seem to us to be on point.
13. In this appeal, the Immigration Judge has not expressly set out his approach to the fact of the appellant's aunt's refugee status. However, he clearly had it in mind. At the end of his long consideration of the credibility of both the appellant, and her aunt, he found that the aunt was a singularly untruthful and evasive witness. He made it clear that he disbelieved her and, as we have said, felt that she had misled the respondent.
14. A decision by the respondent to grant refugee status is a quite different decision from one taken by an Adjudicator or, now an Immigration Judge. The decision by an Adjudicator, or Immigration Judge, is a reasoned judicial decision reached after hearing evidence during which, it is to be hoped, witnesses will have been cross-examined and there will have been a thorough adversarial investigation of the evidence. A decision by the respondent is an administrative one, which is unreasoned. We accept that it is likely that in this case the aunt's refugee status was granted because of clan membership, but we cannot be certain. It is, to a large extent surmise. We do not therefore accept that such a decision is to be treated with the same deference as a reasoned decision following a contested hearing. Of course such a grant must be taken into account as part of the overall evidence. It is not something which can be ignored, and it has not been ignored in this appeal. Our view is, to an extent, fortified by the fact that the appellant's aunt has a sister in the UK. That sister was refused refugee status and has not appealed. We have no way of knowing why that should be. It is not unreasonable to assume that she is of the same sub-clan as the appellant's aunt (whatever that may be). We have seen no documentation about the unsuccessful sister's application. We see no reason why an Immigration Judge must be taken to accept the facts of a situation which is advantageous to the appellant but not when they are disadvantageous.
15. The Immigration Judge was clearly aware of the status of the appellant's aunt, he heard evidence from both her and the appellant herself. He has carried out a long detailed consideration of all that evidence and made no error of law. The decision was on the facts. His findings cannot be said to be perverse and nor can he be said to have omitted to consider any relevant evidence. He has given adequate reasons for his findings.
16. There were two other relatively minor arguments from Mr O'Connor concerning the determination. These both relate to the fact finding. Neither finding can be said to be perverse or irrational and do not disclose any error of law. The first is a criticism of the Adjudicator for noting discrepancies as to the date of the appellant's father's death, said to be in either 1993 or 1994; and other discrepancies as to when she left Somalia, either in 1991 or 1993. The basis of the criticism is that the appellant was only born in 1985 and would therefore have been very young when these events took place. It was wrong, he argued, to criticise her for being discrepant. Those issues clearly lie within the realms of fact finding and are only two of many issues raised by the Immigration Judge as casting doubt on the appellant's credibility.
17. The second issue is found in Ground 2, at paragraphs 7(b) and again in paragraph 4 of the grounds. Those paragraphs relate to the Immigration Judge's observation that the appellant had said (as indeed she had, in her SEF) that her child had gone to Ethiopia from Kenya whereas it was revealed by the appellant's aunt at the hearing that the child is in England. The Immigration Judge was told after the hearing (although he did not approve of the method) that the child is now in the process of applying for asylum herself. He used the fact that he had been misled, as to the whereabouts of this child, as another reason for doubting the appellant's credibility. We find this was open to him. It is a matter which relates entirely to fact finding and there is no error of law in his having doing so.
18. It follows from the above that we find no error of law in the Immigration Judge's determination. As the Asylum Tribunal made no error of law the original determination of the appeal shall stand.

Approved for electronic distribution.

C P Mather

Senior Immigration Judge