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

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Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: UI-2024-005383

PA/63103/2023

 

 

THE IMMIGRATION ACTS

Decision & Reasons Issued: On the 12 February 2025

 

 

Before

 

Deputy Upper Tribunal Judge MANUELL

 

 

Between

 

M M

(ANONYMITY DIRECTION MADE)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Heard at FIELD HOUSE

on 31 January 2025

Representation :

For the Appellant: Mr A Kaihiva, Counsel

(Crystal Chambers)

For the Respondent: Ms S Rushforth, Senior Home Office Presenting Officer

 

 

DECISION AND REASONS

Introduction

1. The Appellant appealed with permission granted by Upper Tribunal Judge Meah on 28 November 2024 against the decision of First-tier Tribunal Judge Abdar who had dismissed the appeal of the Appellant against the refusal of his international protection claim. The decision and reasons was promulgated on 24 September 2024.

2. The Appellant is a national of Egypt, born on 5 October 2002. He claimed in summary that he feared return because he would be the subject of a revenge killing by the Ali family. The Appellant said that his sister was murdered at his family home by a member of the Ali family whose marriage proposal had been refused. The Appellant was 17 years old at the time. The Appellant said that when he found his dead sister and her murderer in the house, he grabbed a knife from the kitchen and killed the murderer. The Appellant feared he would now be killed in return or face the death penalty. The Ali family were influential and well-connected in Egypt. Additionally the Appellant had not reported for his compulsory military service in Egypt and feared prosecution as a result.

3. After reviewing the evidence the Appellant presented and the account he provided, including his immigration history, Judge Abdar accepted the Respondent's concession that the Appellant's sister had died. No other concession as to the Appellant's account was made by the Respondent. The Judge found that numerous other elements of the Appellant's story were not credible. These included the Appellant's claim that he had attended primary school at the age of 16 and was illiterate. The Judge also found that the Appellant could have claimed asylum before reaching the United Kingdom and that Section 8 considerations further detracted from his credibility.

4. The Judge's central findings were set out by him as follows:

"21. The Appellant then fled Egypt on 10 September 2019, Q&A 65, and flew to Turkey through security with an airline ticket and using the Appellant's own passport. Whilst in Turkey, the Appellant contacted his father via Facebook Messenger and was informed that "the situation in Egypt had become worse and that the Ali family had put money on my head meaning that if someone killed me the Ali family would pay them for their service. My father also told me that the Ali family had burned his home and that my family were fleeing away from Beheira, although my father refused to tell me where they were going when I asked", §10 WS.

"22. That was the last contact the Appellant had with his family, in September/October 2019 from Turkey. The Appellant has not contacted his family since as his father told the Appellant not to contact them in case the Ali family found out the Appellant's location via monitoring the Appellant's contact with the family via social media or any other means. The Appellant has followed that instruction since. Therefore, the Appellant has not lost contact with the family; the Appellant has chosen not to contact the family, even now.

"23. The evidence on the Ali family comes from the Appellant and the Appellant's father, both of whom I find to be unreliable, least on the unfounded claim that the Ali family will be able to trace the Appellant via any social media or telecommunication contact the Appellant makes with the family in Egypt. Likewise, I find the evidence on the Ali family's capabilities and influence to be unreliable; the Ali family were unable to find the Appellant hiding within minutes of the Appellant's home for 25 days nor stop him from leaving the country via official channels.

"24. For the same reasons, I also do not find the Appellant's account of murdering Mr MMA and being of any interest to the state to be credible. If it were so, surely the police could have found the Appellant whilst hiding in Egypt and if not, stop the Appellant from leaving the country on his own passport through an international airport. Indeed, the Appellant stated in cross-examination that the passport was at home whilst the Appellant was in hiding, which I find to imply that the police did not even seek to confiscate it.

"25. In the alternative, the Appellant fears a blood feud and in consideration of the background evidence, particularly the collation of news reports at page 101 (albeit dated pre-2011), I find that blood feuds do exist in Egypt. However, state protection is also available against blood feuds.

As to the remaining element of the Appellant's claim, the Judge continued:

"31. I find that the Appellant has not yet been called for military service but the Appellant may be called to undertake military service. The Appellant has not given any reasons for not wishing to undertake military service and, on the evidence before me, I am satisfied that conscription of the Appellant will not be in breach of the Appellant's rights. Should the Appellant refuse to undertake military service, there is a possibility of the Appellant being prosecuted for refusing. However, I am satisfied that such prosecution is not persecutory treatment. Therefore, the Appellant's appeal falls to be dismissed on the protection grounds of appeal."

4. Permission to appeal was initially refused in the First-tier Tribunal. Nevertheless Upper Tribunal Judge Meah noted the averment in the grounds that the decision was flawed, in that the Judge purported to consider evidence from the Appellant's father, when there was no such evidence, either written or oral, from the Appellant's father that the Appellant had sought to rely upon in the appeal. It was further averred that the Judge did not properly consider and/or give adequate reasons as to why prosecution resulting from evading military service would not amount to persecution.

5. Upper Tribunal Judge Meah considered that it was arguable that the Judge's approach to assessing the Appellant's claim was erroneous and infected by his purported consideration of evidence from the Appellant's father at [23] of the decision and reasons which he found to be 'unreliable', as there was no such evidence that was relied upon by the Appellant in his appeal. The other ground was weaker as the Judge had considered the Respondent's CPIN on military service in reaching his findings at [28]-[31] that prosecution resulting from evasion of military service would not amount to persecution. Permission to appeal was however granted on all grounds.

6. There was no rule 24 notice from the Respondent however Ms Rushforth indicated that the appeal was opposed.

 

Submissions

7. Mr Kaihiva for the Appellant relied on the grounds of appeal. In summary, counsel submitted that the Judge had erred by purporting to consider evidence which was not before him. There was no written evidence (or indeed oral evidence) from the Appellant's father at all. Neither had the Judge said what this evidence was. That was because there wasn't any written evidence from the Appellant's father or indeed oral evidence from the Appellant's father. That was a clear error of law and the decision could not stand.

8. The Judge had further erred when considering the Appellant's fear of military service. The Judge's negative views about the Appellant's evidence had caused him to place less weight on what the Appellant had said. The decision should be set aside and remitted to the First-tier Tribunal for rehearing before another judge.

9. Ms Rushforth for the Respondent submitted that there was no material error of law, merely disagreement with a decision properly open to the Judge. As to Ground 1, the Judge's comments about the unreliability of the Appellant's father's evidence had to be placed into the context in which they were made, i.e., from [21] of the decision and reasons where the Judge had quoted from the Appellant's witness statement. The reference in [23] was to the source of the evidence about the Ali family. While possibly that could have been more clearly expressed the meaning was clear and any error of law was not material.

10. As to Ground 2, as Upper Tribunal Judge Meah had observed, this ground based on the Appellant's claimed fear of military service was weak. The Judge's reasoning at [28] to [31] of his decision was based on the uncontroverted information set out in the Egypt CPIN. It was plain that the Appellant had not expressed any conscientious reservations about military service. The appeal should be dismissed.

11. There was no reply.

 

No material error of law finding

12. The Tribunal reserved its decision, which now follows. The Tribunal is not persuaded by the submissions as to material error of law made on behalf of the Appellant. In the Tribunal's view, the errors asserted to exist in the decision are based on misapprehensions and a failure to read the decision and reasons as a whole.

13. It was not in any dispute that the Appellant's father gave no evidence, whether written or oral, at the First-tier Tribunal appeal hearing. No witness statement from the father was in the appeal bundle, and the Judge made no mention of any such document.

14. The words "both of whom I find unreliable" which appear in [23] of the Judge's decision, taken out of their context, nonetheless create the impression that the Judge had received evidence in some form from the Appellant's father. Although those words lack ideal clarity, they are in fact accurate, because the Appellant identified his father as the source of his knowledge of the alleged power and influence of the Ali family. It was a crucial element of the Appellant's claim. That is recorded at [21] of the decision. The Judge did not say that he had received oral or written evidence directly from the Appellant's father. As already observed, no such evidence had been provided in the conventional manner. The Appellant had merely said or repeated what he claimed his father had told him, i.e., hearsay evidence.

15. Perhaps it may be said that the Judge might have expressed himself with greater precision, but if so any error cannot be regarded as so material that it justifies setting aside the decision in a case laden with improbable and implausible claims. The Appellant has had the full opportunity of presenting his case. The Judge gave the Appellant full credit for the only elements of his claim which were accepted by the Home Office, which were the Judge's starting point. But Home Office had not accepted that the Appellant faced any real risk on return and so the Appellant's evidence required critical analysis with anxious scrutiny. The Judge identified with multiple sustainable reasons why that case was found incredible. Those reasons are in the Tribunal's view ample.

16. The Appellant's fear of military service did not amount to a fear of persecution, for the reasons the Judge gave. These were fully supported by the country background evidence he identified. There was no error of law.

17. The Judge conducted a full and careful review of the Appellant's case, in a logical, structured manner. Perhaps even more importantly, on a fair and full reading of the decision, it is clear that the Judge was constantly testing his conclusions, giving anxious scrutiny to the evidence. As the Judge found that the Appellant was able to contact his family and had no objectively founded reasons for fearing return to Egypt, it followed that he would have a home to which he could safely.

18. In the Tribunal's view, the submissions advanced on the Appellant's behalf amount to no more than disagreement with the experienced Judge's conclusions. The Tribunal finds that there was no material error of law in the decision challenged. The onwards appeal is dismissed.

DECISION

The appeal is dismissed

The making of the previous decision did not involve the making of a material error on a point of law. The decision stands unchanged, including the anonymity direction.

 

Signed R J Manuell Dated 4 February 2025

Deputy Upper Tribunal Judge Manuell