Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/03246/2015

THE IMMIGRATION ACTS

Heard at Centre City Tower Birmingham
Decision & Reasons Promulgated
On 29th February 2016
On 7th April 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE FRENCH

Between

hamed alizadeh
(ANONYMITY order not made)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr H Samra of Harbans Singh Solicitors
For the Respondent: Mr D Mills, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a citizen of Afghanistan who initially claimed asylum in this country in 2008. As he had travelled through various European countries the Secretary of State proposed to remove him to Greece, under the Dublin Regulations, and the Appellant absconded. He made a subsequent claim in 2012, which was refused on 30th January 2015, and a decision made to remove him. The essence of his claim was that he had been involved in an illicit sexual relationship with a young woman who was killed by her family following becoming pregnant and that the Appellant was being sought for revenge by members of her family, who were persons in possession of power. The Appellant's appeal against the refusal of asylum and removal decision was heard by First-tier Tribunal Judge M Swinnerton, who dismissed the appeal in a decision promulgated on 28th May 2015. The Judge at first instance did not find the Appellant to be a credible witness for the reasons set out in the decision.
2. The Appellant applied for permission to appeal to this Tribunal. In brief the Grounds of Appeal were that the Judge made credibility findings on a failure to supply information in response to questions which were never asked, and erred in relying on the fact that he had not provided evidence of the sexual relationship, beyond his own evidence, which it was said he could not be expected to do, and also that in finding it significant that the Appellant's aunt had not been at risk and had remained in Afghanistan the Judge had failed to understand the cultural context of honour killings.
3. The grounds continued by asserting that the Judge had relied on incorrect information in stating that the Appellant had claimed that his family's property was burned down by the young woman's father and uncle after he had left Afghanistan and yet had made no earlier reference to this, whereas in fact it was referred to in his initial representations made in 2012. It was also said that the Judge erred in considering that the Appellant's evidence was inconsistent as he said that he sold his shop in Afghanistan to a third party before departing, no distinction being drawn between the Appellant's shop and other property. It was said that the Judge had considered that there was a paucity of evidence concerning the young woman's family but the Appellant had been consistent concerning the names of her father and uncle and evidence had been produced of her uncle's position. Finally it was suggested that the Judge had failed to look at the evidence in the round and had set too high a standard of proof. Permission to appeal was granted by First-tier Tribunal Judge N Osborne who considered the grounds arguable.
4. At the commencement of the hearing before me Mr Mills accepted there might be some validity to a criticism considering a failure to supply corroborative evidence but the point was peripheral. The thrust of what the Judge said was that there was no supporting evidence and the Appellant's case was generally vague. He considered the decision to be sustainable. Mr Samra for his part relied on the Grounds of Appeal, which were detailed. He pointed out that a date at paragraph 19 of the decision was incorrect as reference was made to the Appellant living in Iran in 2010 although he had arrived in the UK in 2008. I considered this to be a mere slip and to be of no significance. Mr Samra then expanded upon the grounds emphasising that the Appellant should not be criticised for failure to deal with specific questions that were never put to him. As to the burning down of the family's property this had been specifically referred to in the initial submissions of 19th January 2012 and in the same representations mention had also been made of the sale of the shop. He said the claimed inconsistency upon which the Judge relied did not exist as it was clear that there were two properties. The Appellant had provided an internet article referring to the young woman's uncle and to the young woman's father being the security chief of Parwan Province. He questioned what further could be produced. Finally, he said, it was unreasonable to expect the Appellant to produce evidence of the sexual relationship, beyond his own evidence.
5. In reply Mr Mills said although the Appellant might never have been asked for the address of the young woman it was the case that there was no evidence of a sexual relationship or even of the fact that the young woman existed. He referred to paragraph 339L of the Immigration Rules and the duty of an Appellant to substantiate a claim. The Appellant had entered the United Kingdom in 2008 and the Secretary of State had intended to remove him to Greece, which at the time was regarded as a safe country. The Appellant had not stood his ground and argued against that case but had absconded. As to the new claim different details were given as to his date of birth. That was intended to mislead. The Appellant's general credibility was not established and that was the starting point. In those circumstances he said it was not unreasonable to expect supporting evidence to be produced.
6. With regard to the internet article concerning the claimed relatives of the young woman, in the context of the Appellant's general credibility the Judge was entitled to reject that. The documents were only translated and matters of weight were for the judge. As to the failure to distinguish between the shop and other property, which it was said had been burned down, whilst Mr Mills accepted that these had been mentioned in the 2012 representations there had been no reference to these two separate properties in the screening or asylum interview or in the Appellant's later statement. His final point was even if the credibility findings were unsafe that any error was not material. The events complained of had occurred in 2006. The Appellant's fear was related to his home province. He had no obvious profile and he submitted that relocation to Kabul would have been available. The Appellant was a grown man. The point had not been considered in the decision but if it had been he submitted that the appeal would have been dismissed on that basis.
7. Finally Mr Samra in response said that the Judge's conclusions concerning the significance of the property being burned down in the context of the shop being sold were not reasonable in the light of the evidence as a whole. He noted that the judge had started the credibility findings having regard to Section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. It was correct that he had passed through European countries en route but the Secretary of State had intended to return him to Greece. Although the leading case of MSS v Belgium and Greece [2011] 53 EHRR 28 had not been decided at that time he submitted that a failure to return to Greece in the light of that subsequent judgment should not be held against the Appellant. His decision was reasonable in the light of subsequent cases. As to relocation to Kabul the Judge had available in the documents the case of ZN (warlords - CIPU list not comprehensive) Afghanistan [2005] UKIAT 00096 from which it was reasonable to conclude that there was a risk of harm to the Appellant in Kabul. It would not be difficult for a powerful person to track him down as on relocation to Kabul checks would be made in his home area.
8. Having heard those submissions I reserved my decision which I now give. I found that there were potentially material errors in the decision of the Judge at first instance sufficient to require the decision to be set aside for re-determination. The Appellant's case is not without potential difficulties. The point made concerning Section 8 of the 2004 Act is of potential impact but has to be viewed in the context of the evidence as a whole. The significance of the Appellant's failure to comply with a direction to go to Greece and then to abscond has also to be viewed in the context of the subsequent cases indicating that Greece was not necessarily a safe country for those seeking asylum.
9. The Judge made a point (at paragraph 21) that the Appellant had not provided any supporting evidence in relation to his claimed sexual relationship but it is difficult to see what further evidence he could have provided. It is made clear in TK (Burundi) v SSHD [2009] EWCA Civ 40 as to the significance of supporting evidence. At paragraph 16 of that judgment Lord Justice Thomas (as he then was) stated
"Where evidence to support an account given by a party is or should readily be available, a Judge is, in my view, plainly entitled to take into account the failure to provide that evidence and any explanations for that failure. This may be a factor of considerable weight in relation to credibility where there are doubts about the credibility of a party for other reasons ...".
It is clear from that judgment that the accessibility of supporting evidence is a highly relevant factor. The Judge does not mention what potential further evidence, apart from his own oral evidence, the Appellant might have been able to supply. The Judge also commented adversely upon the Appellant's failure to give the young woman's address or her full name but he does not appear to have been asked to provide these and in those circumstances the alleged failure to my mind has little significance. I found there was also a potential weight in the argument that the fact that the Appellant's aunt had been able to remain in Afghanistan without further difficulties did not undermine his case. He did provide some evidence as to the position of the young woman's uncle and father although it is the case that the article does not refer to them as being related to her in that way. That in itself is not surprising. I find there were real difficulties with the approach of the Judge to the claimed significance of the alleged inconsistency in the Appellant having sold his shop and his family's property having been burned down. The Judge clearly placed weight on this alleged inconsistency (at paragraph 24 of the decision) but having regard to the initial representations the alleged inconsistency was not apparent. The Judge referred to the Appellant having mentioned more than one property only in a further statement but in fact he referred to them in his initial representations. At the screening and substantive interviews he was not asked questions concerning these points. The errors identified are of sufficient potential significance to undermine the findings reached.
10. Mr Mills made a final point to the effect that even if there were errors in the credibility findings there was no material error of law in the outcome as the Appellant could safely relocate to Kabul. Regrettably this was not an issue considered by the Judge and in the absence of further evidence I did not feel that the point was made out.
11. I was not in a position to re-decide the appeal both for reasons of shortage of time and the fact that a Dari interpreter was not available. Mr Samra urged me to remit the case to the First-tier Tribunal as fresh credibility findings needed to be made. I am persuaded that that is the correct course. In the light of statement 7(2)(b) of the Tribunals Judiciary Practice Statements the appeal is remitted to the First-tier Tribunal in accordance with the directions which appear below.
Notice of Decision
The decision of the First-tier Tribunal contained material errors of law and is set aside. The appeal is remitted to the First-tier Tribunal in accordance with the directions below for reconsideration.
No application was made for an anonymity order. No such order had been made by the First-tier Tribunal and I make no order now.

Signed Dated: 09 March 2016

Deputy Upper Tribunal Judge French