ZN v Secretary of State for the Home Department: AS/17/09/37288

AST
ZN v Secretary of State for the Home Department: AS/17/09/37288
ZN v Secretary of State for the Home Department: AS/17/09/37288 · 2018-04-27
[1]This Statement of Reasons is made in accordance with Rule 34(1) of the Tribunal Procedure (First-Tier Tribunal) (Social Entitlement Chamber) Rules 2008, and gives reasons for the decision made on Thursday 2nd of November 2017 allowing the appeal.[2]The appellant is a national of Azerbaijan born on 22 April 1976. His dependants include his wife and two minor children. He appeals under Section 103 of the Immigration and Asylum Act 1999 against the decision of the respondent dated 21 September 2017, to refuse him asylum support under Section 95 of the Immigration and Asylum Act 1999, (as amended) (“the 1999 Act”).[3]Ms. Poyner appeared for the appellant (instructed by the Asylum Support Appeals Project (ASAP)) and Mrs. Crozier represented the respondent.[4]The appellant participated in the hearing through an Azeri interpreter. It was apparent that he experienced some difficulty understanding the interpreter because the latter spoke a different dialect to the appellant. Unfortunately, it proved impossible to secure the services of an interpreter in the dialect required. I am satisfied nevertheless that the appellant was able to take effective part in the proceedings. I have taken into account the apparent problems with interpretation, and these are reflected in my finding of fact and credibility. BACKGROUND[5]This is the appellant’s second appeal before this Tribunal. His first appeal was heard on 26 July 2017 by Judge Ripley and remitted to the Secretary of State for her to consider the additional documentary evidence produced at the hearing. The majority of the documents were in Azeri without an English translation. Judge Ripley accepted that the appellant may not be in a position to pay for certified translations and suggested that the respondent may wish to obtain translations herself.[6]The background to the appellant’s entry on visit visas is set out in Judge Ripley’s decision, a copy of which is annexed to this decision. I rely on the facts as detailed in her judgment unless specifically varied. ISSUES[7]The primary issue in this appeal is whether the appellant and his dependants are destitute within the meaning of Section 95 (3) of the 1999 Act and Regulations 6 & 7 of the Asylum Support Regulations 2000 (the Regulations). THE DOCUMENTARY EVIDENCE[8]I do not propose to list all the evidence produced in this appeal. Suffice to say that I have read the documents comprising the appeal bundle and I am familiar with the evidence contained therein. I have given specific consideration to the visa applications made by the appellant and his dependents (documents 16 – 34); a supplementary submission from the respondent (documents 50 – 52); the respondent’s additional submissions in response to directions (documents 53, 64 - 65 and 69 – 71); and her submissions on Section 55 of the Borders, Citizenship and Immigration Act 2009 (the 2009 Act).[9]I have received a helpful chronology and supporting correspondence dated 26 October 2017 from the appellant’s representative, (Ms. Woods, Training coordinator and Legal Advisor to the Asylum Support Appeals Project (ASAP)). I have also been provided with the appellant’s witness statement dated 26 October 2017 and a letter from St Chad’s Sanctuary dated 31 October 2017 addressed “To Whom It May Concern”. I am grateful to counsel Ms. Poynor for her written submissions dated 26 October 2017 and 2 November 2017. THE LEGISLATIVE FRAMEWORK[10]So far as is material, Section 95 of the 1999 Act, as amended, provides the following:[95]Persons for whom support may be provided (1) The Secretary of State may provide, or arrange for the provision of, support for – (a) asylum-seekers, or (b) dependants of asylum seekers who appear to the Secretary of State to be destitute or to be likely to become destitute within such a period as may be prescribed. […] (3) For the purposes of this section a person is destitute if – (a) he does not have adequate accommodation or any means of obtaining it (whether or not his other essential living needs are met); or (b) he has adequate accommodation or the means of obtaining it, but cannot meet his other essential living needs.[11]In circumstances where the applicant is not already in receipt of support, the prescribed period for the purpose of Section 95 is 14 days beginning with the day on which the question of destitution or likelihood of destitution falls to be determined. (Regulation 7, Asylum Support Regulations 2000 (the 2000 Regulations).[12]Regulation 6 of the 2000 Regulations makes further provision as to ‘destitution’, including the matters to be considered by the Secretary of State in determining whether an individual is destitute for the purpose of Section 95 of the 1999 Act. Regulation 6 provides as follows: “ Income and assets to be taken into account 6.—(1) This regulation applies where it falls to the Secretary of State to determine for the purposes of section 95(1) of the Act whether—(a) a person applying for asylum support, or such an applicant and any dependants of his, or(b) a supported person, or such a person and any dependants of his, is or are destitute or likely to become so within the period prescribed by regulation 7. (2) In this regulation “the principal” means the applicant for asylum support (where paragraph (1)(a) applies) or the supported person (where paragraph (1)(b) applies). (3) The Secretary of State must ignore— (a) any asylum support, and (b) any support under section 98 of the Act, which the principal or any dependant of his is provided with or, where the question is whether destitution is likely within a particular period, might be provided with in that period. (4) But he must take into account— (a) any other income which the principal, or any dependant of his, has or might reasonably be expected to have in that period; (b) any other support which is available to the principal or any dependant of his, or might reasonably be expected to be so available in that period; and(c) any assets mentioned in paragraph (5) (whether held in the United Kingdom or elsewhere) which are available to the principal or any dependant of his otherwise than by way of asylum support or support under section 98, or might reasonably be expected to be so available in that period. (5) Those assets are— (a) cash; (b) savings; (c) investments;(d) land;(e) cars or other vehicles; and(f) goods held for the purpose of a trade or other business. (6) The Secretary of State must ignore any assets not mentioned in paragraph (5).[13]Regulation 7 of the 2000 Regulations provides as follows:[7]The period prescribed for the purposes of section 95(1) of the Act is— (a)where the question whether a person or persons is or are destitute or likely to become so falls to be determined in relation to an application for asylum support and sub-paragraph (b) does not apply, 14 days beginning with the day on which that question falls to be determined; (b) where that question falls to be determined in relation to a supported person, or in relation to persons including a supported person, 56 days beginning with the day on which that question falls to be determined.[14]Section 103 of the 1999 Act as amended provides a right of appeal to the First-Tribunal (Asylum Support). So far as is relevant, this states:
‘(1) …(not relevant); (2a) if the Secretary of State decides not to provide accommodation for a person under section 4, or not to continue to provide accommodation for a person under section 4, the person may appeal to the First-Tier Tribunal. (3) On an appeal under this section, the First-Tier Tribunal may – (a) require the Secretary of State to reconsider the matter; (b) substitute its decision for the decision appealed against; or (c) dismiss the appeal.’
[15]Section 55 of the Borders, Citizenship and Immigration Act 2009 provides:- ‘(1) The Secretary of State must make arrangements for ensuring that –(a) the functions mentioned in sub-section (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom; and(b) (not relevant).

(b) …(not relevant)’ THE APPELLANT’S EVIDENCE

[16]I am informed that the appellant’s written statement dated 26 October 2017 was prepared by ASAP with the assistance of an Azeri Interpreter. The statement does not provide the name of the interpreter who assisted the appellant or the language and dialect spoken by them. I am assured that the appellant had no problems understanding the interpreter in question, although he does appear to have experienced difficulties understanding every other interpreter that has been provided for him since his arrival in the UK.[17]At the hearing, the appellant confirmed the contents of his written statement, in which he stated the following: a) He arrived in the United Kingdom on 28 December 2016, accompanied by his wife and 2 children, aged 11 and 9 years. b) He and his wife do not possess any assets, land, property or investments in Azerbaijan, or elsewhere. They have never held bank accounts in any country. In Azerbaijan, he earned very little money and did not need a bank account. They have no saving. They are not supported by family members, nor is any family member able to support them financially. His visa application form made no mention of a bank account. c) He worked in the Azerbaijan Military Prosecution Archives as a filing clerk. He was issued with an official identification document, which he handed to immigration officials on arrival at Newcastle Airport. The document is retained by immigration officials. His annual salary was 3,600 Azerbaijani Manats (AZN) (approximately £1,570). d) His wife worked for the Ministry of Education at the Azerbaijan State Pedogogical University. Her annual salary was 3,000 AZN (approximately £1,310). The university issued his wife a “bank card”. The card had one purpose only, namely to enable her to withdraw her salary at the end of the month. The card belonged to the university and was reclaimed when his wife was forced to resign. e) He and his wife provided a letter dated 26 September 2017 from the Chancellor of the University where she last worked. The letter confirmed that his wife had terminated her contract of employment, that the University suspended her account on 6 February 2017 and reclaimed the bank card. f) He and his wife lost their employment as a direct result of the problems he was having with the Azerbaijani Authorities. g) He confirmed that he owned a flat in Baku, Azerbaijan, which was sold by his agent in November 2016, for 35,000 AZN (approximately £15,285). He said the agent “did everything” because “we” were in hiding. He produced a document (accompanied by a non-certified translation) dated 24 March 2017 as confirmation, that he no longer owns a property in Azerbaijan. h) He provided the respondent with a certificate of sale, which named him as the vendor of the flat, provided the name of the purchaser and the agreed sale price, as at 3 November 2016. i) The Baku flat was sold for cash and it is said that “all the proceeds of sale were used to pay the agent”. The agent’s charges included a fee for finding the purchaser, selling the flat, drafting and submitting the visa applications, purchasing four flights to the UK and the costs associated with hiding the appellant in a safe house. The agent also arranged for him to see a doctor and purchased medication on his behalf. j) The agent completed and submitted the visa applications but the appellant was unaware of the contents until the application forms were disclosed to him by the respondent. He did not sign the application form but he did provide fingerpr[18]There were a number of inconsistencies in the appellant’s evidence concerning receipt of the proceeds of sale of the flat. Initially, he said that 35,000 AZN was given to him on completion of the sale. He then said that the money was given to a third party who brought the money to him. His evidence then changed and on the third attempt, he claimed that the sale proceeds were handed to the agent. Describing how the 35,000 AZN was spent by the agent, the appellant said that in addition to the expenditure detailed in paragraph 14 (i), the agent also provided financial support for his wife and children who were living with his mother-in-law, and he paid for all costs, transport and for “bribery and whatever”.[19]Save for the above inconsistencies, the appellant did not deviate from his evidence. When I put the inconsistencies to him, the appellant explained that the agent offered the sale proceeds to him but he told the agent to keep the money, because it was of no use to him, as he could do nothing with it.[20]With regards to the visa applications, the appellant stated that he did not know the contents of the application until this was disclosed to him by the respondent in the UK. He said that he was unfamiliar with the process and was not told that he may be interviewed when he attended with his wife and agent to provide fingerprints. He conceded that his agent may have offered bribes on his behalf to get him out of the country. SUBMISSIONS FOR THE RESPONDENT[21]On behalf of the respondent, Mrs. Crozier made the following submissions: a) The respondent now accepted that the appellant and his wife were in employment in Azerbaijan as claimed and that this employment has since ceased. The respondent no longer seeks to challenge whether or not they were dismissed from their employment prior to leaving Azerbaijan (Document 53); b) The respondent accepts that the certificate of sale of the Baku flat, submitted by the appellant is an authentic document (Document 53). What remains in issue is the whereabouts of the proceeds of sale of the flat. Ms Crozier referred to the appellant’s evidence in relation to this critical issue as contradictory and unreliable. She questioned the appellant’s explanation for the discrepancies in his evidence, namely difficulties with interpretation. She questioned the credibility of his statement that the entire proceeds of sale were handed to the agent, the appellant’s lack of concern that he may be interviewed in connection with his visa application, and his insistence that he did not know the contents of his visa application. c) Some of the information provided by the appellant on his visa application was untrue. She conceded that had he disclosed his true intentions, a visa would not have been issued. She confirmed that no evidence was available that the UK Visa Officer attempted to verify the information in the visa applications and as such, these cannot be relied upon. d) The Home Office can ask for specific documents and the reliability of translations of foreign documents will always be in issue. The availability of certified translations is helpful to all parties and some are central to the issue of destitution. Whilst the Home Office will always seek to test the credibility of documentary evidence, Ms. Crozier accepted that they may need to review their approach to requesting certified translations of foreign documents. She added that any organisation that considers the respondent’s request for certified translations unreasonable can seek to judicially review that policy. It is not necessary, in her opinion, to involve the Asylum Support Tribunal. e) On the issue of any overlap of the asylum support application with the appellant’s asylum application, Ms Crozier expressed the view that asylum support judges should be slow to ask questions about an appellant’s asylum application. That said, however, she maintained that the decision of this tribunal is in no way binding on asylum Judges any more than decisions on asylum are binding on this tribunal. Any issues aired here relate solely to the specific issues within the jurisdiction of this tribunal. The decisions of other judges on this point are not wrong, but simply different. f) With specific reference to AS/17/05/36760, Mrs. Crozier argued that there is no justification for this Tribunal to decline to make findings of fact to the civil standard on matters that are relevant to asylum support and the asylum claim because fi[22]On behalf of the appellant, Ms. Poyner made the following submissions: a) She said that where there is potential for the Tribunal to make findings of fact that relate also to the appellant’s underlying claim for asylum, the Tribunal should be slow to make findings of fact on overlapping issues, or credibility findings that go directly to the appellant’s risk on return. b) She stated that the respondent should not place an unreasonable burden upon appellants by requiring them to obtain documents from overseas as this could place them or their dependants at risk of harm from the authorities in the country in question. c) In destitution cases, Ms. Poyner was of the view that the respondent may only consider assets identified in Regulation 6(5) that are available, or might reasonably be expected to be available to the appellant within the period of fourteen days. Furthermore, she could see no statutory provision for property such as housing, homes, jewellery, mobile phones etc to be taken into account, and in her opinion, the respondent had not put forward any legal authority for the proposition that “land” includes an appellant’s home. d) On the issue of certified translations, Ms. Poyner felt strongly that the respondent should not routinely ask appellants to provide these in order to discharge the burden of proof on them to prove destitution. e) When considering an applicant’s response to requests for further information, she felt the respondent should have regard to the applicant’s mental health/other vulnerabilities. And where an applicant was required to respond to or comment on documents (e.g. the visa application) the respondent must disclose the said document. This was especially necessary where the applicant claimed not to have or not to have seen the document in question. f) On safeguarding and promoting the welfare of children. Ms. Poyner felt strongly that the respondent had a duty to consider section 55 when deciding applications for section 95 support and that such duty was not discharged merely by an assertion that section 55 had been considered. THE DECISION Primary Issues[23]The main contested issue in this appeal is the whereabouts of the proceeds of sale of the Baku flat. The appellant has given three different versions of how the proceeds of sale were received and utilised. I accept on balance that the discrepancies in his evidence may be the result of poor interpretation. It is unfortunate that the Tribunal was unable to provide the appellant with an interpreter in his language and chosen dialect on two occasions, as a result of which much time was wasted. Consequently, I place little weight on the appellant’s difficulty in clarifying the discrepancies, which may have been caused by misinterpretation.[24]I accept Ms. Poynor’s submission that the respondent may only consider assets identified in Regulation 6(5) that are available, or might reasonably be expected to be available to the appellant within the period of fourteen days. I do not, however, accept that statutory authority is lacking for the proposition that “land” includes an appellant’s home. The Law of Property Act 1925, section 205 (ix), provides that land means the actual land together with any buildings on the land, fixtures attached to the land, mines, minerals and some airspace. Accordingly, I find that the respondent is entitled to treat an appellant’s home as an asset under Regulation 6(5). I do not propose to provide guidance on whether a mobile phone is an investment asset for the purposes of asylum support. As a general rule, however, if an item of personal possession can be easily converted into cash (and vice versa) e.g. gold jewellery, or stocks and shares, it may be reasonable to treat such possessions as cash, savings or investments because they are easily converted into cash.[25]It is an important factor in my decision that the appellant volunteered information concerning the ownership of his flat and its subsequent sale. I accept that £15,000+ is a great deal of money in Azerbaijan. However, the appellant has provided a detailed and consistent account of how the money was spent and I accept his evidence that his primary concern was to leave Azerbaijan with his family, for which he was willing to spend whatever was required. Whilst £15,000+ may be a substantial sum of money to pay an agent for facilitating the exit of one individual, the cost and risk involved in assisting a family of four may be considerably greater. In addition to the cost of visa applications, internal transport and air tickets to the UK, I take into account that the proceeds of sale were also used to pay for the appellant’s medical treatment, accommodation and subsistence for the rest of the family.[26]I remind myself of the Court of Appeal judgment in R (HK) v. SSHD [2006] EWCA Civ 1037, and the dicta of Neuberger LJ that in many cases, some, even most, of the appellant’s story may seem inherently unlikely but that does not mean that it is untrue. The ingredients of the story, and the story as a whole, have to be considered.[27]The appellant has not wavered in the face of robust cross-examination. For the purpose of deciding his asylum support claim, I find as fact that the appellant was assisted by an agent to secure Entry Clearance for himself and his three dependants. I further accept that the agent was given control of the proceeds of sale, to use the sum as required.[28]On the totality of the evidence before me, applying the civil standard of the balance of probabilities, I find as fact that the appellant and his dependants are destitute and entitled to the provision of section 95 support. Secondary issue[29]I am asked to comment, in particular, on AS/17/05/26760 and AS/16/09/35812. In my judgment, it is never the role of this Tribunal to evaluate a first instance asylum claim and thus, nothing that is decided in an asylum support appeal should impact on the appellant’s asylum claim/appeal. In an appeal against refusal of section 95 support, there are essentially two issues for determination: whether the appellant is an asylum seeker whose claim has not been finally determined; and whether they are destitute within the meaning of the 1999 Act and the Regulations. These issues must be decided on the evidence before the asylum support judge, applying the civil standard of a balance of probability.[30]It is conceivable that an asylum support judge adjudicating on a case may find him or herself faced with facts in issue that significantly overlap with the asylum claim. Nevertheless, it must be possible for asylum support judges to determine the issues that fall within their jurisdiction, namely the financial circumstances of the appellant at the relevant time. Each case must be decided on its own facts. In AS/17/05/26760 and AS/16/09/35812, the Asylum Support judge exercised caution and avoided evaluating aspects of evidence that he considered were relevant to the asylum claim. I see nothing wrong with that approach. He then went on to make clear findings on destitution, the task entrusted to him.[31]In this case, I am perhaps less concerned with the impact of my judgment on the asylum appeal because I take the view that my findings on credibility are not binding on an immigration and asylum judge – or as I am reminded – on any asylum support judge. When the time comes to make findings of fact in the appellant’s asylum claim, I am confident that nothing I say here, having evaluated the evidence before me, will have any bearing on his protection claim.[32]In appeals such as this, where the Tribunal is asked to make findings about an appellant’s financial situation in their country of origin, it is helpful for the Tribunal to have access to legible copies of documents before the Entry Clearance Officer or other decision-maker in the UK. Where an appellant has gained entry to the UK having first obtained Entry Clearance, it is all the more crucial that the Tribunal is provided with copies of such documentation and details of the checks carried out to establish their authenticity. It is in my view, placing an unfair burden on the asylum support judge to require them to make findings of fact on the appellant’s employment, property ownership or savings abroad when these checks were not carried out overseas by the Entry Clearance Officer, who is best placed to do so. Our task would be far more achievable if evidence was tested overseas, either in face-to-face interviews of through verification of documentation through established channels. In the absence of robust checks overseas, and given the view taken by the respondent that applicants often exercise deception in order to secure entry, it is unlikely that asylum support judges will feel able to make findings on these matters.[33]It is fairly common in asylum cases for appellants to argue that their entry was facilitated by agents who dealt with all aspects of the Entry Clearance process. That argument is not always easy to square with the fact that they are required to sign the form and are responsible for the truth of the particulars therein. Be that as it may, because it is possible that appellants may not in fact have seen or approved the documents in question, they should be provided with copies before they are questioned on the contents. For his part, the appellant’s evidence has been consistent in relation to this aspect of the evidence and I accept it.[34]I turn next to the requirement for appellants to obtain documentation from abroad and the requirement to submit certified translations to the respondent. Foreign documents e.g. arrest warrants, correspondence, birth and death certificates etc. are routinely provided by asylum claimants from their country of origin. I do not accept that a request for documentary evidence will necessarily place the appellant or their family and friends at risk of harm from alleged actors of persecution. It depends on whether the contact was likely to alert the alleged actor of persecution in the country of origin to the likelihood that a protection claim had been made or in a manner that might place applicants or their family members in the country of origin at risk. As was stated by the Upper Tribunal in VT (Article 22 Procedures Directive – confidentiality) Sir Lanka [2017] UKUT 368 (IAC)), “[w]hether an inquiry was necessary and was carried out in an appropriate way would depends on the facts of the case and the circumstances in the country of origin”. I bear in mind that in asylum support appeals the financial information at issue (concerning income and assets) is not ordinarily such as to alert the authorities in the country of origin to any asylum-related issues. I am satisfied that in asylum support appeals, using common sense and reasonable precautions should enable most applicants to obtain the necessary evidence without endangering either the safety of appellants or their relatives and friends in their country of origin. I am entirely satisfied that the inquiries made by the appellant in this case did not endanger his or his family’s safety or that of their relatives and friends in their country of origin.[35]I accept that certified translations are helpful to all parties, especially if they are central to the issue of destitution, and that the respondent is entitled to test the authenticity of the evidence. However, routinely requiring potentially destitute asylum seekers to produce certified translations, places an unreasonable and disproportionate burden on them. In my judgment, this should not normally be necessary, but if it is, the respondent is in general best placed to obtain this quickly and reliably.[36]I take on board Ms. Poynor’s comment that the respondent should have regard to an appellant’s mental health and other vulnerabilities. In AM (Afghanistan) v. Secretary of State for the Home Department [2017] EWCA Civ 1123, the Senior President of Tribunals, Gross and Underhill LJJ provided important guidance on the approach to be taken by tribunals for ensuring a fair determination of asylum claims from children, young adults and other vulnerable individuals. The decision is relevant to all tribunal jurisdictions, including asylum support. The respondent is reminded that the need to deal fairly with vulnerable appellants includes giving consideration to their disabilities and vulnerabilities during the decision-making process. That may require giving a vulnerable appellant additional time to respond to correspondence or taking a flexible approach to how a response is communicated. It may also require some allowances being made when assessing credibility for discrepancies.[37]Finally, both parties made lengthy submissions on the applicability of section 55 in section 95 appeals. In my judgment, section 95 requires the respondent to have regard to the need to safeguard and promote the welfare of children when discharging any function in relation to Immigration, Asylum or Nationality. That must include the making of a section 55 decision. Accordingly, when refusing support under section 95 to a family that includes minor children, the decision letter must address how the welfare of the children will be safeguarded. I am assured and accept that the respondent will not evict a family from section 98 accommodation until an assessment has been carried out by Social Services. The appeal is allowed.