Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/00124/2016

THE IMMIGRATION ACTS

Heard at Glasgow
Determination issued
On 16 March 2017
On 17 March 2017

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

M F AHMED
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Mr A Caskie, Advocate, instructed by Latta & Co, Solicitors
For the Respondent: Mrs M O’Brien, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The respondent refused the appellant’s protection claim for reasons explained in a letter dated 11 January 2016.
2. First-tier Tribunal Judge S Gillespie dismissed the appellant’s appeal for reasons explained in his decision issued on 1 December 2016.
3. Permission to appeal was granted on the view that the judge arguably erred by failing to deal with risk based on having failed to render military service in Iran.
4. A rule 24 response by the SSHD submits that this point is covered by country guidance to the general effect of no risk arising from enforced return, even after illegal exit.
5. Mr Caskie pointed out that the appellant had not established even his nationality, and that the point in the grant of permission was therefore immaterial, if the adverse credibility findings stood. He sought to argue the rest of the original grounds, which were directed against those findings. Mrs O’Brien’s position was that the grant of permission was restricted, but she was ready to argue the case in the alternative. I permitted argument on all grounds.
6. The essential points as I understood them for the appellant were these:
i. Ground 1: there was no evidence to justify the finding at ¶58 that there would have been frequent exchanges among the family members who formed the leadership of the RUK. The reference back to evidence recorded at ¶24 was a plain error. Even “reading out” that slip, the reason made no sense when dealing with the political leadership not of a party in a peaceful country but of the RUK in an area of vicious conflict, and the judge was wrong to discount a real possibility that the appellant’s knowledge might have been as limited as he claimed.
ii. Ground 2: The judge said at ¶61 that the appellant did not give a satisfactory explanation why the photograph was taken. There was a failure to reach a conclusion on whether the appellant was in the photograph, and whether it showed him to be a member of the RUK. The appellant was in an age group where “everyone takes photographs”, a known behaviour which the judge left out of account. The appellant did not have the guile to set this up in advance.
iii. Ground 3: The judge mentioned the motley appearance of the group, but that was to be expected of the peshmerga. He had adopted a western preconception of what a military group should look like.
iv. (Ground 4 is the issue on which permission was granted. Mr Caskie did not expand upon it.)
Points not in the grounds:
v. At ¶62 the judge said that the appellant’s claimed date of birth had been assessed as “improbable”. This showed application of the wrong standard of proof, not only there but in the rest of the decision.
vi. At ¶63 the judge did not accept loss of contact with Simko, which overlooked that the sudden end of communication for no apparent reason might well be because he is no longer alive.
vii. Not all the judge’s findings were wrong, but the invalid findings so infected the rest that the decision could not stand.
7. The essential points as I understood them for the respondent were these:
i. The attack on the credibility findings was not covered by the grant of permission.
ii. Much of the attack was not envisaged even in the grounds on which permission was not granted.
iii. There was a stark contradiction between basing part of the argument on the appellant being one of the “selfie generation”, taking photographs of everything, and another part on cloak and dagger secrecy.
iv. The reasoning at ¶58 was sensible. There had been an abundance of evidence of close family connections among the leadership with whom the appellant claimed to have been intimately involved, yet he had no understanding of those relationships.
v. There was no misconception from a western perspective, rather an explanation why the appellant’s narrative made little sense.
vi. The judge was entitled to note the motley appearance of the group in the photograph, but his real point was that a rebel group would not keep a catalogue of photographs. Asked if he was concerned about these falling into the hands of Iranian intelligence, the appellant said that the photographs were published on the party’s site (¶43), which did not fit with his portrayal of a group whose leaders were too frightened even to communicate with each other.
vii. The decision made it very clear why the judge decided as he did.
8. In response Mr Caskie raised the following:
i. The photograph on the appellant’s party membership card was plainly him, and it matched his appearance in the photographs of the peshmerga, which were of notably good quality.
ii. Expert evidence could be sought to identify the cap and uniform badges.
iii. The photographic and membership evidence was central and powerful, but the judge failed to say what he made of it.
iv. These points might go beyond the grounds, but should be entertained in light of the “overriding objective”.
v. There was so much wrong with the decision that it could not properly stand
9. I reserved my decision.
10. Tribunal procedure is flexible, and the overriding objective of the procedure rules is to enable the UT to deal with cases fairly and justly; but flexibility does not extend an ongoing opportunity to find a case which was not crystallised in the grounds, evidence and submissions in the FtT, or even in the grounds to the UT.
11. In other words, the first concern of the UT is the identification of error of law in the resolution of the case put to the FtT, not the evaluation of an ongoing series of improvements and afterthoughts.
12. The second sentence of ¶58 contains an obvious slip in the numbering of the previous paragraph to which it refers. The plain intended meaning is this: “His evidence … recorded above is not credible in the circumstances”. That is well justified by reading the preceding paragraphs and sentence.
13. The judge recorded accurately at ¶62 that two age assessments found the appellant’s claimed date of birth to be improbable. That cannot be construed into getting the standard of proof wrong, either on a particular point or as a generality. The judge directed himself on standard of proof at ¶9, which has not been criticised. There is nothing to suggest that he erred on one of the most fundamental and best known aspects of this jurisdiction.
14. It has rightly been acknowledged that ground 4 does not assist the appellant, if the adverse findings stand. In any event, it has not been shown that non-performance of military service, without more, might entitle an Iranian to international protection.
15. The rest of the grounds and submissions are only re-argument and disagreement on the facts.
16. As submitted for the respondent, the appellant gave a confused and self-contradictory account, which the judge was entitled to reject. Reading his decision fairly and as a whole, his reasons for doing so have not been shown to be a less than legally adequate explanation.
17. The determination of the First-tier Tribunal shall stand.
18. No anonymity direction has been requested or made.

16 March 2017
Upper Tribunal Judge Macleman