El Salvador asylum seeker wins appeal against tribunal decision

The petitioner, MF, argued that the First-tier Tribunal judge had erred in analysing the evidence produced in support of the appeal, in particular the accounts given by him and his family. 

The appeal was heard in the Outer House of the Court of Session by Lord Braid. 

No well-founded fear 

The petitioner originally claimed asylum in February 2017 when he arrived in the UK with his wife and three children. In his claim, he stated that he feared persecution from a gang in El Salvador known as the Mara Salvatrucha (MS13). His account was that his family had been subjected to threats of violence as a result of extortion by the criminal gang which operated in the area in which he and his family ran a cheese and diary shop. 

The Secretary of State for the Home Department refused his claim in July 2017, with the decision being appealed to the First-tier Tribunal. The FTT concluded that the petitioner did not have a well-founded fear of persecution. This conclusion was reached on the basis that the FTT did not find the petitioner’s account credible. 

The evidence lodged for the petitioner consisted of a bundle lodged for the SSHD and statements given at the appeal by the petitioner and his family. Accounts were given of specific instances where his family had been threatened by MS13 members in relation to ‘rent’ money owed by the petitioner to the gang. The FTT considered that there were inconsistencies in this evidence. On the other hand, much of the account was supported by documentary evidence which there was no suggestion had been fabricated. 

One central theme in the reasoning of the FTT judge was, the failure of the petitioner to explain why MS13 had failed to collect, at all, the increased ‘rent’ which it had said it wanted in December 2016. It was noted by the FTT judge that it was difficult to reconcile this behaviour with the notion of a threatening gang from which international protection was sought. 

On appeal to the Upper Tribunal, the UT judge reached the view that there were no arguable grounds of appeal. The FTT judge had given “anxious scrutiny” to the case, and gave cogent reasons as to why the petitioner’s evidence was rejected. 

It was submitted by counsel for the petitioner that it was arguable that the FTT had erred in law by applying the wrong standard of proof on a number of occasions to the petitioner’s claim. Although the FTT judge had professed to be applying the correct standard of proof, close examination of the detailed findings showed that he had not in fact done so. Further, it was not for the petitioner to explain the thought processes of the gang which was extorting money from him. 

Low bar to clear 

In his opinion, Lord Braid began by determining the central issue of the case, saying: “As things stand, the only question for me to resolve is whether or not the petitioner’s grounds of appeal disclose an arguable ground of appeal.” 

He continued: “Arguability focusses on whether an argument is able to be presented rather than on whether or not it is likely to succeed. A slightly more refined test might be whether an argument is able to be presented which is not immediately demonstrably wrong, or which is doomed to fail. However it is expressed, the arguability threshold is a low bar to clear, and on any view is lower than a test which is related to prospects of success.” 

On the standard of proof applied by the FTT, he said: “Some of the arguments made by the petitioner are stronger than others but it seems to me that it is arguable that notwithstanding that the FTT judge said on more than one occasion that he was applying the correct standard of proof, in neither his analysis of the individual facts nor his overall discussion when summing up, did he use the language of ‘reasonable likelihood’ or ‘serious possibility’ of persecution. Although at paragraph 30 he referred to the lower standard of proof, he also referred back to his previous findings, in many of which he used language more redolent of a higher standard of proof.” 

He continued: “Expressions such as ‘I am far from being persuaded’ and ‘doubt about the veracity of the evidence’ may suggest that matters were left out of account which ought not to have been, and I am not persuaded that any error in approach to that extent would necessarily be cured by simply repeating that the lower standard of proof was being applied.” 

Lord Braid concluded: “Of course, I do not say that the FtT judge did err in either of these, or other, respects but standing the low threshold of the arguability test, which was the sole test applied by the UT judge, I have concluded that it is arguable that he did. Since the UT was wrong to hold that there was no arguable error of law, the UT decision dated 13 May 2019 therefore falls to be reduced.” 

For these reasons, the petition for judicial review of the decision was granted.