Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/02181/2015

THE IMMIGRATION ACTS

Heard at Columbus House, Newport
Decision Promulgated
On 29 September 2016
On 05 October 2016

Before

The Hon. Mr Justice McCloskey, President,

Between

MM
[ANONYMITY DIRECTION MADE]
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr Sellwood, of Counsel, instructed by Migrant Legal Project (Cardiff)

For the Respondent: Mr G Harrison, Senior Home Office Presenting Officer

DECISION

1. This appeal has its origins in a decision made on behalf of the Secretary of State for the Home Department (the "Secretary of State") dated 26 August 2014, whereby the application of the Appellant, a national of Iran aged 32 years, for asylum was refused. The ensuing appeal was dismissed by the First-tier Tribunal ("FtT").

2. The application for permission to appeal to this Tribunal canvassed four grounds. Permission was granted in respect of each. For the reasons given ex tempore at the conclusion of the hearing, I have decided that the decision of the FtT is vitiated by material error of law and must be set aside in consequence. I summarise these reasons in the following way.

First Ground of Appeal

3. This ground was presented as the leading basis of the challenge to the first instance decision. In essence, it complains that the FtT misdirected itself in law on the issue of the Appellant's asserted conversion from Islam to the Evangelical Christian faith. The Appellant's case on this ground was supported by two witnesses, one of them a Baptist Church Minister. With reference to this evidence, the Judge stated in her decision:

There was no significant challenge to the credibility of the witness and "I can place significant weight on his evidence" relating to the Appellant's frequent church attendances, participation in baptismal classes and prayer meetings and his proselytising activities.

The Minister's evidence "? is capable of corroborating the Appellant's account. I give his evidence significant weight".

Next, referring to the evidence of both supporting witnesses:

? "I take account of the positive evidence of the Christian community in the United Kingdom, who have in good faith assessed [the Appellant's] involvement and commitment as arising from genuine belief".

Referring to the second supporting witness only:

?. "I find that [his] evidence is capable of corroborating the Appellant's account confirming his introduction to [the church in question]".

Referring to the written evidence of a pastor:

? "I count this as positive evidence showing that from first exposure to the date of hearing the Appellant has consistently been involved with the Evangelical Church movement".

4. The FtT found that the Appellant had given a false account of his circumstances in Iran. This finding was juxtaposed with the issue of his religious conversion in the pre-penultimate and penultimate paragraphs of the decision:

"Whilst I do not discount the possibility that even in the context of an unmeritorious and false claim for asylum conversion may nonetheless be genuine and real, I find the position here undermined by the Appellant's continuing to maintain what I have found to be a false account of his circumstances in Iran ?.

In short I find his involvement, including his baptism and attendance at church and involvement in community activities, is entirely expedient, designed to bolster his claim for asylum."

These conclusions were prefaced by a diligent consideration of all the evidence.

5. In Daoud v Secretary of State for the Home Department [2005] EWCA Civ 755, Sedley LJ stated, at [11]:

"To claim falsely that you have been persecuted in the past because of your ethnicity does not mean that you may not face risks in future because of it."

To like effect is the statement of Pill LJ in Yusuf v Secretary of State for the Home Department [2005] EWCA Civ 1554, at [29]:

"The fact that a claim is inconsistent with the first claim made does not of itself deprive an applicant of the protection of the Refugee Convention or the [ECHR]."

Giving effect to these principles, the substance of the error of law exposed by the first ground of appeal is a failure to examine and determine the question of whether the Appellant's undisputed active involvement in the church and religious faith concerned, irrespective of motivation, gave rise to a risk of persecution. The Judge's assessment of expediency was not enough.

Second Ground of Appeal

6. The essence of this ground is an asserted failure on the part of the FtT to engage with all of the evidence bearing on the screening interview of the Appellant, including the undisputed evidence that, on any showing, he was seriously physically and mentally debilitated at the time. The duty to engage with all of the evidence bearing on this issue was not, in my estimation, discharged. Coupled with this, the Judge's description of the Appellant as merely "tired" at the material time is unsustainable.

Third Ground of Appeal

7. One discrete aspect of the Appellant's case concerned his account of an episode involving alleged threats, a report to the police, a serious assault and resulting injuries and the destruction of his car by fire. In its decision the FtT criticised the Appellant for failing to provide corroborating evidence of any of these matters, including evidence of the police involvement and investigation. The simple point made in the ground of appeal is that these matters were not put forward in support of the Secretary of State's refusal of the asylum claim. Furthermore, they were not canvassed with the Appellant at the hearing. None of this is contested. This, in my judgment, gives rise to a clear finding of procedural unfairness.

Fourth Ground of Appeal

8. This overlaps to some extent with the third ground. In its consideration of the aforementioned dimension of the Appellant's case, the FtT, referring specifically to a single question and answer during the asylum interview, finds an inconsistency in the Appellant's case. However, as rehearsed in the grounds of appeal, the FtT failed to engage with the evidence (the interview translation) that whereas the interviewer posed a single question, the interpreter converted this to seven questions and, furthermore, did not consider that, in response, the Appellant may reasonably and legitimately be considered to have been simply correcting what was put to him by the interpreter. I find that this ground too is made out.

Decision

9. The appeal succeeds to the extent that the decision of the FtT is set aside. I remit the appeal to a differently constituted FtT for fresh consideration and decision.

THE HON. MR JUSTICE MCCLOSKEY
PRESIDENT OF THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Date: 29 September 2016