[2013] CSIH 87

Lady Smith



delivered by LADY SMITH

in the application for leave to appeal





A decision of the Upper Tribunal (Immigration and Asylum Chamber)


Act: Winter; Drummond Miller LLP

Alt: O'Rourke; Solicitor to the Advocate General

10 October 2013

[1] The applicant claims that he is a national of Palestine who lived on the Gaza Strip. He claims asylum in this country. His case that he is at risk of persecution is based on an imputed political opinion. He claims that he would be at risk from Hamas because of his family history and because of his refusal to join them. Specifically, the applicant alleges that in January 2004 his father was shot and later knocked down by a car. His family were, he said, told that Hamas was responsible and that the reason for their actions was they believed their father was involved with an organisation called Fatah. He alleges that the family home was destroyed in 2005, that his father was killed and his mother injured. Again Hamas was said to have been to blame. He alleges that in 2006 Hamas wanted his brother to join them. He refused to do so and was sent to prison. He then escaped to the countryside when he was released and Hamas wanted the applicant to join them after that. He told them that he was not fit and they said that either he or his brother required to join them. The reason he gave for his lack of fitness was that he suffered from a cardiac condition.

[2] The applicant gave an account to the First-tier Tribunal that he had decided to join his brother and escaped to the countryside, remaining there for a considerable period. In his oral evidence at the hearing before that Tribunal he said he had hidden in a chicken farm for four years. He said that later, with the help of an agent, he left the country and eventually made his way to the United Kingdom. He entered the UK illegally in a lorry on 10 February 2011 and was arrested. He claimed asylum on 11 February 2011. He was questioned on behalf of the respondent. The respondent did not accept that he was from the Palestinian Territories, nor was it accepted that his factual claims in support of his application for asylum were credible.

[3] The applicant appealed to the Immigration Appeal Tribunal and his case was heard before the First-tier Tribunal on 26 April 2011. He asserted that his life would be in danger if he returned to Palestine as he would be recruited by Hamas. The immigration judge considered the objective evidence and his findings in relation to it included the following: that during a three week uninterrupted aerial bombardment by Israel in 2009 over fourteen hundred people were killed in the Gaza Strip and over five thousand injured; that Hamas is the political force which governs the Palestinian territories and are the authority in power; that Hamas rarely forcibly recruit people to their membership; that Hamas members frequently resort to extrajudicial violence against their opponents.

[4] The immigration judge found that the applicant was not a credible witness. In particular, I would refer to paragraph 18 of the immigration judge's statement of reasons. That was, he said - because, in terms of his demeanour as a witness, he was not straightforward and his answers lacked detail; because there was a significant and substantial conflict between what he had said at his asylum interview regarding his time in hiding, where he had said he hidden for two months/fifty days and what he said in evidence at the hearing where he said he had hid for four years; and because, further, he had previously given other periods of time as being the length of his alleged stay on the chicken farm.

[5] Other reasons for the finding that he was not a credible witness were that there was a conflict between his oral evidence and what the applicant had said in his prior statement regarding the date his period in hiding commenced. In that statement he had said 2005, yet in evidence at the hearing he had said February 2006. Also, the immigration judge referred to the applicant not being able to give correct details of life in the Gaza Strip in 2009, yet the area was subject to devastation at that time, the lives of its citizens were extremely turbulent and there was no aspect of life that was unaffected. The immigration judge concluded that the applicant's account of being in hiding for four years was, accordingly, shown to be a device so as to provide him with an excuse for his lack of knowledge of the devastating events of 2009. In any event, even if the applicant had been in hiding, his account was that he was there together with his brother and the farmer who owned the chicken farm and that further undermined his position since he would have been bound to have contact through them with information about what was happening in the Gaza Strip.

[6] Further, the immigration judge referred to a report dated 7 April 2011 which had been prepared on the instructions of the applicant's agents by Dr Kelly, a social anthropologist. In that report Dr Kelly stated; "It is relatively rare, although not unheard of, for Hamas to pressurise people to become activists." But the applicant's evidence did not accord with that objective evidence which was, rather, that the fact of his imputed political opinion itself put him at risk.

[7] The applicant was also noted by the immigration judge to have named two mosques as being in the Beit Lahia area, that being the area in which he was brought up, but there was no objective evidence that confirmed his evidence about their names. The objective evidence confirmed the existence of two mosques in that area, but their names were different. The immigration judge also referred to the applicant having, when asked what the words Beit Lahia meant, said; "At school there was a Goddess in the area and they called it the same name", whereas the objective evidence had demonstrated that the name meant either "desert" or "fatigue". Finally, the immigration judge referred to the applicant having been asked if he recalled Beit Lahia being hit by Israeli airstrikes or rockets or mortars and he had said there was one incident and that was when his house was destroyed in 2005. However, there was clear objective evidence of bombings and several attacks having taken place in that area over the previous seven years. The immigration judge made no specific finding in relation to the applicant's allegation regarding what had happened to his father or whether in fact the applicant had come from Gaza.

[8] The applicant appealed to the Upper Tribunal. His appeal was refused. At paragraph 14 the deputy upper tribunal judge, referring to the immigration judge, states:

"He does not make a specific finding as to whether the appellant's father was shot and run down as claimed. He also does not make a specific finding as to whether the appellant is from Gaza. However, the determination accurately sets out the various aspects of the claim made by the appellant. The overall tenor of the determination is that the judge does not believe the truth of the claims and gives adequate reasons for reaching his conclusion that the appellant is not at risk. There is no requirement to deal with every issue which has been raised."

[9] The argument on appeal to the Upper Tribunal was that the applicant would be at risk on return by reason of the fact that he is not an open supporter of Hamas. That was not the basis on which the appeal was presented to the First‑tier Tribunal, however, the deputy upper tribunal judge dealt with the point and rejected the argument. At paragraph 19 he explains why. He says there:

"Dr Kelly, at paragraph 51 of his report considers the issue of forced recruitment into Hamas. He indicates that this recruitment is by way of volunteering, recruitment and pressure. He refers to some inducements from the organisation. However, at paragraph 53, he concludes that it is relatively rare for Hamas to pressurise people to become activists. The judge dealt with this issue as part of his assessment of the appellant's credibility in a way which I find faultless. I am in agreement with Mr Mullen, that there is nothing in the report to indicate that a person is at risk of persecution if they, in general, do not demonstrate support for Hamas. Undoubtedly, as Hamas are controlling the Gaza Strip, opposition to them would place a person in difficulty, however that is not the same as requiring a show of positive support in order to avoid a risk of serious harm."

[10] Leave to appeal to this court was sought from the Upper Tribunal and refused on 6 September 2012. The application to the Upper Tribunal set out grounds of appeal which were, essentially, to the effect that the Upper Tribunal had erred by failing to consider Dr Kelly's report properly.

[11] The applicant now seeks leave from this court under section 13 of the Tribunals, Courts and Enforcement Act 2007. The written application sets out four grounds of appeal from which two themes can be gleaned. First, that the Upper Tribunal was wrong to say that the immigration judge had not been obliged to deal with every issue that had been raised. Secondly, that there was a failure by both the First‑tier Tribunal and the Upper Tribunal to take proper account of Dr Kelly's report and when that was done, the evidence showed that persons who were not open supporters of Hamas were at risk in Gaza. It did not matter, it is said, that the applicant's case before the First‑tier Tribunal was that he was at risk because of his family history and refusal to join Hamas; no distinction falls to be drawn between the two assertions.

[12] Before me today, Mr Winter submitted that the immigration judge required to make findings on material issues and, in this case, he had failed to make findings regarding the applicant's assertions about what had happened to his father, what subsequently had happened to him in an involvement with Hamas and whether or not the applicant was from Gaza. These were material issues. He accepted that if that ground was not established then the remaining grounds would fall away. He further submitted that the Upper Tribunal had erred in its approach, at paragraph 18, because it followed that the applicant was not an open supporter if the position was that he was refusing to join Hamas. There was really no difference in the position asserted before the Upper Tribunal as opposed to that which had been asserted before the First‑tier Tribunal. He submitted there was no foundation for the Upper Tribunal's observations in the last three sentences of paragraph 19 and what the Upper Tribunal judge said there seemed to be contradicted by the expert's report.

[13] Mr Winter referred to paragraph 49 of Dr Kelly's report and submitted that the conclusions stated there were relevant to the applicant. He accepted that, judging by what was stated by the immigration judge, paragraph 49 had not been relied on before the First‑tier Tribunal, but the essential argument made there was not substantially different from what was now being advanced on the applicant's behalf. He submitted that there was sufficient in Dr Kelly's report to show that the applicant would be at risk on return. The point had been raised in the grounds of appeal and ought to be considered. It was a "Robinson obvious" point. He referred to paragraph 18 of the decision of the Upper Tribunal. The refusal to join Hamas could, he submitted, be sufficient to generate a perception that the applicant was not a supporter. He did, however, seem to accept that the applicant's account had been that when asked to join Hamas he had told them that he had a cardiac condition and so was unfit. That is, he accepted that there was no evidence that the reason given to Hamas for his refusal to join them was anything to do with him not supporting their cause.

[14] Regarding the immigration judge not making any specific findings about the matters referred to in the first ground of appeal, he submitted that the immigration judge required to make the findings because they were important to his appeal - they were material. He was not saying that an immigration judge required to make findings regarding every aspect of the evidence but, if there were material matters raised, the immigration judge required to do so. Regarding the Upper Tribunal's observations in the last three sentences at the end of paragraph 19, he submitted there was no evidential basis for what was stated and it was contradicted by Dr Kelly's report at paragraphs 49 and 51 to 53. He did, however, accept that the examples cited by Dr Kelly in support of his general conclusion in paragraph 53, about Hamas putting pressure on people, concerned individuals who were in rather different categories from the applicant.

[15] For the respondent, Mr O'Rourke submitted that, taken at its highest, the applicant's account was one of having a passive approach to Hamas. He said he was asked to join and refused to do so, giving as an explanation that he had a heart condition. That did not put him into the category identified by Dr Kelly at paragraph 53 of his report. Further, the Hoseini test applied; it was a high test and was not met. Regarding the First‑tier Tribunal's findings, the immigration judge had made significant findings in relation to credibility and reliability. The Upper Tribunal had dealt with the issue identified before them, namely the question of risk on return, and they had done so robustly and properly. He referred to the country guidance case of MA (Palestinian Arabs - Occupied Territories - Risk) Palestinian Territories CG [2007] UKAIT 00017 - merely being a Palestinian Arab in the occupied territories did not put a young man at risk. He also referred to the case of HS (Palestinian - return to Gaza) Palestinian Territories CG [2011] UKUT 124, another country guidance case which supported the proposition that merely being a Palestinian Arab in Gaza would not put the applicant at risk.

[16] The evidence before the First‑tier Tribunal did not, he submitted, demonstrate that the applicant would be at risk on return. There was no error of law. The First-tier Tribunal had a discretion in the matter of whether or not to accept evidence, but had to have a basis on which to do so. The First‑tier Tribunal had not been required to make findings regarding the applicant's father and what the applicant said about his exchange with Hamas. Having made the conclusion that the applicant was not a credible witness, these matters not being ones in respect of which there was any independent evidence, it had to follow that he had not believed the applicant regarding them either. Mr O'Rourke submitted that it was open to the Upper Tribunal to pay close scrutiny and that was what had happened. The relevant issues had been properly and appropriately considered regarding the specific criticisms of the observations in paragraph 19. They were not findings in fact. They were an appropriate reflection of the Upper Tribunal's assessment of Dr Kelly's report.

[17] Turning to my decision, the question for this court, in terms of the case of Hoseini v The Secretary of State for the Home Department 2005 SLT 550, is whether or not the application for leave discloses grounds of appeal based on error of law which have a real prospect of success, or whether there are any other compelling reasons why they should be granted. The latter part of the Hoseini test is not relied on in this case and I have reached the view that there are no grounds of appeal based on error of law which have a real prospect of success. My reasons for that conclusion are as follows.

[18] When the Upper Tribunal's observation that the First‑tier Tribunal was not required to deal with every issue is read in context, it is clear that the Deputy Upper Tribunal judge was referring to the immigration judge not being required to make findings in fact in relation to everything stated in evidence. That is quite correct. There is no question of it being suggested that the immigration judge need not deal with every material issue raised in the appeal.

[19] Further, Mr Winter's submission that it was important for the immigration judge to make separate findings regarding the assertions about the applicant's father and what happened in his exchange with Hamas cannot be accepted. These were but assertions made by the applicant in addition to those specified by the immigration judge. There was no independent evidence to support them. Regarding the incidents involving his father, the applicant did not himself assert that Hamas was responsible. He was not, for instance, suggesting that he had witnessed what had happened and seen that Hamas were involved; rather, he said that that was what he had been told. Regarding his own alleged exchange with Hamas, contrary to what seems to be the approach in the application, it did not provide a foundation for the idea that Hamas would thereafter regard him as not being an open supporter or, indeed, an opponent, given that his account was that his reason for refusing to join them was not that he didn't support their cause but that he had a health condition and was not physically fit enough to join their cause. Moreover, these assertions are covered by the immigration judge's overall finding that the applicant's evidence lacked credibility. On that approach he could have had no basis for believing these assertions when he had specifically rejected everything else that was advanced as being the applicant's case for saying that he would be at risk of persecution if he returned. Then, the applicant's case was that he personally was at risk because of his family history and his own refusal to join Hamas. He did not state any fear based on a general risk to those who do not openly support Hamas.

[20] Turning to the matter of the application being based on Dr Kelly's report at paragraph 49, that paragraph requires to be read in context which is that Dr Kelly was there referring to the earlier part of his report which dealt with the risks that might arise if a person was an opponent or a perceived opponent of Hamas. The applicant has not however, at any stage, suggested that he was an opponent of Hamas. Regarding paragraph 53 of Dr Kelly's report, when the whole of that paragraph is read it is clear that he is not saying that there is a basis for concluding that there is a general risk of Hamas pressurising citizens to become activists for their cause. Rather, he identifies that they may do so in certain restricted categories. The examples cited are not relevant to the applicant; they are where they had a basis for blackmail, where they had a basis for suspecting that a person was a collaborator or where the person was especially vulnerable such as in the case of children or those with mental health problems.

[21] Turning to the submissions regarding the last three sentences of paragraph 19 of the Upper Tribunal's reasons, they do not fall to be read as containing findings in fact. They are observations and as such are plainly merited by what is contained in Dr Kelly's report.

[22] Finally, regarding the submission that no distinction falls to be drawn between the assertion that the appellant is at risk because of his family history and his own exchange with Hamas and the proposition that those who do not openly support Hamas are at risk, whilst semantically and superficially, that submission may have its attractions, the problem for the applicant is that his case has always been that he personally is at risk not because of any general approach taken by Hamas, but because of what occurred in relation to his family and involving him. In all these circumstances, this application falls far short of meeting the test in Hoseini and must, accordingly, be refused.