AA/03330/2015

• Status of case: Unreported
• Hearing date: 4 Apr 2017
• Promulgation date: 6 Apr 2017
• Publication date: 25 Apr 2022
• Last updated on: 25 Apr 2022

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/03330/2015


THE IMMIGRATION ACTS


Heard at : IAC Birmingham
Decision & Reasons Promulgated
On : 4 April 2017
On : 6 April 2017



Before

UPPER TRIBUNAL JUDGE KEBEDE


Between

milad hamid hameed
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent


Representation:
For the Appellant: Ms E Rutherford, instructed by D&A Solicitors
For the Respondent: Mr D Mills, Senior Home Office Presenting Officer


DECISION AND REASONS
1. The appellant appeals, with permission, against the decision of the First-tier Tribunal dismissing his appeal against the respondent’s decision of 11 February 2015 to refuse his protection and human rights claim.
2. The appellant, born on 27 February 1989, claims to be a national of Syria but is believed by the respondent to be an Iraqi national. He claims to have entered the UK by lorry from France on 29 September 2014 and he claimed asylum on 30 September 2014. His claim was refused on 11 February 2015. He appealed against that decision and his appeal was heard in the First-tier Tribunal on 8 June 2016 and was dismissed in a decision promulgated on 4 July 2016. Permission was granted to appeal to the Upper Tribunal on 27 July 2016.
The Appellant’s Case
3. The appellant claims to be a national of Syria from the governate of Dayr az-Zawr, on the Syrian side of the border with Iraq. He claims that his family were nomadic people mostly living in the desert and claims to have worked as a shepherd and to have never attended school. He claims to speak Iraqi Arabic because half of his clan is Iraqi although half are from Syria. He claims to fear mistreatment due to the ongoing war in Syria and fears being enlisted into the army to complete his military service. He claims that his brother was killed by ISIS in May 2014 for speaking out against them and that his family are otherwise all still in Syria. He never completed his military service even though he received his call-up papers and the military came to his home continuously telling him that he had to report for service. He decided to leave the country after the death of his brother.
4. The respondent, in refusing the appellant’s claim, did not accept that he was a Syrian national and relied upon a language analysis report which concluded that he was more likely to be of Iraqi nationality and was attempting to manipulate his speech to the Syrian dialect. It was noted that the background evidence confirmed that he would have been exempt from military service if his brother had been killed as claimed and therefore his account of avoiding military service was rejected. The respondent considered that the appellant was an Iraqi national and that he would be at no risk on return to Iraq.
5. The appellant’s appeal against that decision was heard by First-tier Tribunal Judge Lowe who noted various inconsistencies and discrepancies in the appellant’s evidence and rejected his claim to be Syrian and dismissed the appeal on all grounds.
6. The appellant sought permission to appeal Judge Lowe’s decision on the grounds that the judge had erred in her approach to credibility and had erred in her approach to risk on return. The grounds also referred to the language analysis report and asserted that the judge had erred by placing so much reliance on the part of the report concluding that the appellant’s accent was Iraqi whilst ignoring the part concluding that his accent was Syrian.
7. Permission to appeal was granted to appeal to the Upper Tribunal on the basis that the judge had arguably failed to consider all the evidence before her and had failed to consider risk on return to Iraq.
Appeal hearing and submissions
8. The appeal came before me on 4 April 2017. Both parties made submissions.
9. Ms Rutherford submitted that the key issue in the appellant’s case was the linguistic assessment report. In light of the outcome of the two alternative hypotheses in the report, the judge had erred by failing to consider the appellant’s explanation for his Iraqi accent, namely that he came from an area near the border of Syria and Iraq and that his family lived on both sides of the border, and had therefore erred in concluding that he was not Syrian. In the alternative, the judge had not made any specific finding that the appellant was from Iraq and had made no finding on risk on return to Iraq.
10. Mr Mills submitted that the judge had considered the linguistic assessment report in line with the guidance in Secretary of State for Home Department v MN and KY (Scotland) [2014] UKSC 30. She had properly noted that the report was not determinative, and had made various other findings on the basis of the evidence as a whole as to why she did not accept that the appellant was a Syrian national. Whilst she did not make a specific finding that the appellant was Iraqi it was clear from her findings that that was her conclusion. Any absence of findings on risk on return to Iraq was not material as the appellant had never claimed to be at risk in Iraq.
11. Ms Rutherford had no response and I advised the parties that I was upholding the judge’s decision. I do so for the following reasons.
Consideration and findings.
12. The grounds of appeal criticise the judge’s approach to the linguistic report and it was Ms Rutherford’s submission that the judge had erred by failing to take account of the appellant’s explanation for his Iraqi accent which was relevant given the outcome of the alternative hypothesis in the report.
13. As Ms Rutherford conceded, the judge’s consideration of the report was a thorough and careful one. It is clear, furthermore, and contrary to the submission made, that that detailed and thorough consideration included a consideration of the appellant’s explanation. The judge noted that the report tested two hypotheses, the first that the appellant belonged to an Arabic linguistic community which occurred in Syria, and the second that he belonged to an Arabic linguistic community which occurred in Iraq, and she noted that both hypotheses had a positive result. The judge noted that the second hypothesis had a higher score, and considered what both scores denoted, and recognised that the report did not provide a conclusion that was a near certainty. It was on that basis that she then went on, in accordance with the guidance in MN and KY, to consider the appellant’s explanation, as mentioned at [17], and to conduct an assessment of the evidence as a whole. At [18] to [21] the judge identified various discrepancies and inconsistencies in the appellant’s evidence which led her to conclude that the appellant had not provided a credible account of his nationality. Within her detailed analysis of the evidence at [18] she provided clear and proper reasons for placing the weight that she did upon the documentary evidence more recently produced by the appellant, which included a copy of his claimed expired Syrian passport and identity card. Plainly the judge had full and careful regard to all relevant matters and all the evidence in reaching her conclusions and, for the reasons fully and cogently given, was unarguably entitled to reject his claim to be a Syrian national.
14. Whilst the judge did not make an express and specific finding as to the appellant’s nationality, I would agree with Mr Mills that it is a reasonable assumption, from the findings that she made, that she considered him to be an Iraqi national. The grounds criticise the judge for failing to consider risk on return to Iraq. However she expressly stated at [22] that the appellant had not produced any evidence that he was at risk in Iraq. The respondent noted at [29] of the refusal decision that the appellant had not expressed any fear on return to Iraq, and, when taken together with the judge’s finding that he had not produced any evidence of being at risk in that country, it seems to me that the judge’s position was clearly that he was not at risk on return to Iraq. In any event, given that the appellant had made no claim to be at risk in Iraq, any arguable omission by the judge to make a specific finding is, as Mr Mills submitted, plainly immaterial.
15. For all of these reasons I find no errors of law in the judge’s decision. The decision is a detailed and careful one, considering all the evidence and including cogently reasoned findings. I therefore uphold Judge Lowe’s decision.

DECISION
16. The appellant’s appeal is accordingly dismissed. The making of the decision of the First-tier Tribunal did not involve an error on a point of law, such that the decision has to be set aside. I do not set aside the decision. The decision to dismiss the appellant’s appeal therefore stands.



Signed Dated: 5 April 2017
Upper Tribunal Judge Kebede