Former El Salvador serviceman's petition to reduce deportation decision refused
Lord Tyre
A citizen of El Salvador who claimed that he would be a victim of organised crime if he was deported from the UK has failed to petition for a judicial review of the decision to deport him.
The petitioner, known as DY, sought review of a decision by the Upper Tribunal not to allow him to appeal the decision of the First-tier Tribunal in August 2019. The petition was opposed by the office of the Advocate General for Scotland.
The petition was heard in the Outer House of the Court of Session by Lord Tyre.
Threatened by a gang
The petitioner claimed to have previously done compulsory military service in El Salvador. For part of his service he was assigned to provide security at a maximum security prison. At some point in this time, a prisoner named Isidro was released from this prison, and he ordered the petitioner to steal guns and ammunition for his gang. The petitioner refused.
Isidro then demanded that the petitioner leave the army to prevent him from disclosing the gang's plans. He was subsequently transferred to another base before leaving the army in 2013. In 2018 he was contacted again by Isidro, who wanted him to re-join the army to steal weapons for his gang.
After further calls and threats from Isidro and his gang, on 12 December 2018, the petitioner and his family flew to the UK after Isidro turned up at their home. Later that day a man told the petitioner's mother in law that the gang did not want to see the petitioner or his family in the area again or they would be killed.
In May 2019, the petitioner's request for asylum and humanitarian protection was refused by the FtT. In support of his appeal, the petitioner produced two reports: an expert report on El Salvador and its gangs written by an emeritus professor at the University of South Florida and a report on the petitioner's mental health by a chartered clinical psychologist. He also produced evidence confirming his period of military service.
The FtT judge found that the petitioner's account of the facts had not been adequately proved. In particular, he noted inconsistencies in the dates provided in the evidence of the petitioner's military service and the dates given by the petitioner to the FtT, as well as the rank of his commanding officer in the two pieces of evidence signed by him. The FtT also found that there was a lack of specific detail about the petitioner's circumstances during his service.
On appeal to the UT, the petitioner argued that the Home Office had not sought to verify the documents regarding his military service and therefore the FtT could not impugn them. The Upper Tribunal refused permission to appeal, stating that the FtT had not rejected the evidence relating to the petitioner's military service because they did not believe it was genuine but because of the inconsistencies between the documents.
The petitioner submitted to the Outer House that the fact that there were inconsistencies between the documentary evidence and the petitioner's own evidence to the FtT did not absolve the respondent of any duty of verification incumbent upon it. The military documents were central to the petitioner's case and could be checked by a simple process.
The petitioner also submitted that the UT ought to have noted that the FtT had failed to give proper weight to material in the expert report which was supportive of the petitioner's evidence, and had failed to give adequate reasons for regarding the expert report as unsupportive.
Discrepancies in his own evidence
In his opinion, Lord Tyre took as his starting point the decision in Tanveer Ahmed v Secretary of State for the Home Department, in which the Immigration Appeals Tribunal said: "It is for the individual claimant to show that a document is reliable in the same way as any other piece of evidence which he puts forward and on which he seeks to rely."
Lord Tyre went on to say: "Verification is a matter for the Secretary of State. Failure by the Secretary of State to carry out an appropriate process of verification in circumstances which require it has a particular consequence: the Secretary of State cannot challenge the authenticity of the document in the court or tribunal."
He continued: "The court or tribunal is not required to order the Secretary of State to carry out a process of verification. Where an obligation to verify has not been discharged, the court or tribunal's duty is to 'assess the consequences for the case'."
On the FtT's duty in this case, he said: "In these circumstances, the question for the FtT, in my opinion, was not whether the respondent was in breach of a duty to verify the authenticity and/or reliability of the documents, but rather what weight it (the FtT) ought to attach to the documents, and to the information they contained, when assessing the evidence before it as a whole. It is apparent from the terms of [the decision] that the FtT did ask itself this question."
He continued: "That being so, the Upper Tribunal was in my opinion correct to hold that a ground of appeal asserting that the FtT erred in law by failing to recognise that the respondent had not sought to verify the documents, or by failing to recognise that no thought had been given to means of verification, was not arguable. Those were not matters that the FtT was obliged to address in the course of its assessment of the evidence."
In respect of whether there was a duty to verify the documents, he said: "The petitioner is insisting on verification not because the documents are, ex facie, clearly supportive of his case but in order to attempt to resolve inconsistencies which might appear to render them unsupportive. In the absence of any challenge by the respondent to their authenticity, the difficulty for the petitioner is that at least one of the documents is not consistent with his account of the timescale of his contact with Isidro. He is, in effect, asserting that the respondent has a duty to carry out investigations in order to attempt to resolve discrepancies in his own supporting evidence."
On the FtT's treatment of the expert evidence, he said: "The Upper Tribunal correctly recognised that the FtT's principal reasons for declining to place reliance on the report were that it was insufficiently related to the particular circumstances of the petitioner and that in some respects the petitioner's account was not consistent with it. The points mentioned by the petitioner in argument amount to no more than disagreement with the FtT's treatment of minor points of detail."
For these reasons, Lord Tyre refused to grant a reduction of the UT's decision.
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Court of Session Outer House
[2020] CSOH 60