Tribunal decisions

The decision

IAC-HX-MH/11-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: aa/03618/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 24th November 2016
On 30th November 2016

Before

UPPER TRIBUNAL JUDGE REEDS

Between

sa
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr M Burns, instructed on behalf of the Appellant
For the Respondent: Mr A McVeety, Senior Presenting Officer

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless and until a Tribunal or court directs otherwise, no report of these proceedings or any formal publication thereof shall directly or indirectly identify the Appellant or members of his family in this determination. This direction applies to amongst others all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.

DECISION AND REASONS
1. The Appellant, with permission, appeals against the decision of the First-tier Tribunal who, in a decision promulgated on 6th August 2015 dismissed the Appellant's claim for asylum and/or humanitarian protection. Permission was granted to appeal the decision by Upper Tribunal Judge Plimmer on 29th January 2016.
2. The Appellant's background can be briefly summarised. The Appellant is a citizen of Iraq and was educated there and also completed national service in that country. He worked as part of an engineering unit and as a result of that employment travelled to Jordan and remained there until 1995 when he returned to Baghdad. He was arrested upon return as he had no permission to leave the country and was imprisoned for approximately one year and was released.
3. It was asserted on the Appellant's behalf that members of his extended family were members of the Ba'ath Party and that as a result they were subjected to reprisals.
4. In 1997 the Appellant travelled to Libya and remained there until 2004 when he travelled to Amman and he has resided there until 2014 along with his family members. Since living in Amman, the Appellant has returned to Iraq on five occasions.
5. The Appellant entered the United Kingdom with his family on visit visas on 26th August 2014 and claimed asylum at the port of entry. He was interviewed on the same day and had an asylum interview on 12th November 2014.
6. In a decision letter of 13th February 2015 the Secretary of State refused his claim for asylum and humanitarian protection for the reasons set out therein, having taken into account the basis upon which it was asserted that he would be at risk of harm upon return.
7. The appeal came before the First-tier Tribunal on 28th May 2015 and in a determination promulgated on 6th August 2015, the Appellant's claims for asylum and/or humanitarian protection were dismissed by the judge. The judge in his findings of fact reached the conclusion on the evidence that the Appellant and his family members would not be at risk on return to Iraq as a result of any perceived links with the former Saddam regime or as a collaborator with that regime. Nor did he find that the Appellant would be at risk of reprisals arising from any former employment held in Iraq. As to humanitarian protection, it was conceded on behalf of the Appellant that there was no evidence before the Tribunal that established a degree of indiscriminate violence at such a high level as to reach the threshold necessary for a breach of Article 15(c) and the judge also found that there were no particular circumstances that would specifically affect the Appellant and his family members to demonstrate any breach of Article 15(c). The judge considered the medical evidence relating to the Appellant's son but reached the conclusion at paragraphs [36] to [38] that that would not lead to any breach of his human rights upon return. At paragraphs [39] to [43] the judge considered the claim based on Article 8. The grounds advanced before the Appellant do not challenge any findings or conclusions made in relation to Article 8.
8. Before the Upper Tribunal Mr Burns appeared on behalf of the Appellant and Mr McVeety on behalf of the Secretary of State. I heard submissions from each of the parties which are recorded in my Record of Proceedings and gave additional time for Mr Burns to take instructions from his client who was present during the hearing. I confirm that I have considered those submissions and reached a conclusion on the grounds advanced on behalf of the Appellant. I shall set out their submissions when dealing with each ground specifically.
Ground 1
9. Dealing with Ground 1, it is submitted that the judge erred in his assessment of credibility by placing too much weight on the screening interview as a piece of evidence (see determination paragraphs [27] to [33]). Mr Burns on behalf of the Appellant submits that the judge failed to take into account the guidance given in the decision of YL (rely on SEF) China [2004] UKAIT 00145 at [19].
10. In this regard, he points to the screening interview at questions 4.1 and 4.2 in which the Appellant sets out his reasons as to why he came to the UK and that the reasons given at 4.1 and 4.2, he submits, are not inconsistent with the later claim made by him. He submits that he had made a claim as a risk of being considered a collaborator under the old Ba'athist regime and this flowed from the history that he had given at questions 4.1 and 4.2.
11. Furthermore Mr Burns submitted that there was insufficient space for giving any further answers to be given (see question 4.2) and also that the Appellant was told not to go into detail (see the preamble at page 1 of the form). He submitted that at 5.1 the Appellant alluded to the Ba'athist regime and that he had been arrested and that there had been no substantial contradiction between the asylum interview which took place later and the screening interview. He reminded the Tribunal that the screening interview was only a small part of the evidence and that the judge was wrong to place too much weight on that one piece of evidence in reaching his conclusions.
12. In any event, he submitted that even when looking at the screening interview in isolation, the Appellant's answers were reasonable and that the only inconsistency relates to paragraph 5.1 when he was asked if he had been arrested, charged or convicted of any offence in any country and the Appellant referred to "Oman - never". He accepted that this was inconsistent with the later account in the asylum interview but that the Appellant had given a reasonable explanation concerning the interpretation of the screening interview which had later been referred to by the judge at paragraph [17] of the determination. Thus he submitted that the findings relating to credibility were unsafe for those reasons.
13. Mr McVeety on behalf of the Secretary of State submitted that the judge was entitled to take into account the screening interview and that it provided no link between the claim that he was later to make in his asylum interview. He submitted that if the claim for protection was based on a risk due to perceived collaboration or to any Ba'athist connections, the Appellant might be reasonably expected to say this rather than set out his concerns relating to his son. In any event, he submitted the judge did not only rely on the screening interview but considered the Appellant's answers in the asylum interview and the evidence as a whole and gave valid reasons for reaching the decision that he did.
Discussion:
14. The judge's assessment of the evidence and findings on credibility are set out at paragraphs [24]-[38] of the determination. At [28] and [29] the judge makes reference to the replies given in the screening interview observing that "some significant weight" should be given to the credibility of the answers given in the screening interview. He accurately records the screening interview and the responses at paragraphs 4.1, 4.2 and 5.1. At paragraph [29] he also set out the screening interview of the Appellant's wife. There is no dispute between the parties that the judge accurately set out the contents of each parties' respective screening interview.
15. Mr Burns has referred me to the decision of YL (China). YL (China) is not authority for the proposition that evidence in a screening interview can never be taken into account or afforded weight in making an assessment of credibility or the consistency of the Appellant's account. The Tribunal gave guidance to judges concerning screening interviews and the general assessment of evidence contained in those documents at paragraph [19] to which Mr Burns has referred me to.
16. The purpose of the screening interview is described as follows:-
"To establish the general nature of the claimant's case so that the Home Office can decide how best to process it. It is concerned with the country of origin, means of travel, circumstances of arrival in the UK, preferred language and other matters that might help the Secretary of State understand the case."
17. It is also clear from paragraph [19] that:-
"Asylum seekers are still expected to tell the truth and answers given in screening interviews can be compared fairly with answers given later. However, it has to be remembered that a screening interview is not done to establish in detail the reasons a person gives to support their claim for asylum. It would not normally be appropriate for the Secretary of State to ask supplementary questions as to elaborate answers and an inaccurate summary by an Immigration Officer at that stage would be excusable. Furthermore the screening interview may well be conducted when the asylum seeker is tired after a long journey. These things have to be considered when any inconsistencies between the screening interview and the later case are evaluated."
18. Thus judges are asked to consider and evaluate those matters as set out by the Tribunal. As can be seen from the answers given in the screening interview as recorded by the judge at paragraphs [28] and [29], the reasons the Appellant later gave for claiming asylum, namely that he was at risk as a perceived collaborator and that members of his family have been targeted, were wholly absent. I cannot accept the submission made by Mr Burns that the answers given to paragraph 4.1 and 4.2 did reflect his case of being at risk as a collaborator. There is no reference whatsoever to any risk in that regard but related to the circumstances of his son. Nor do I accept his submission that the judge unreasonably relied on the screening interview and gave undue weight to only one piece of evidence failing to apply the guidance in YL (China) as set out above. I shall set out my reasons for reaching this conclusion.
19. The judge at paragraphs [30] to [33] considered the answers given, not only in the screening interview but also from the contents of the asylum interview and the oral evidence heard at the hearing. At paragraph [30] the judge considered the evidence as to the risk on return in Iraq and the nature of the claimed threat based on being a collaborator, supported by attacks on family members. The judge records the Appellant's evidence in his asylum interview that "Even then the Appellant states he is unsure whether his wife felt that he was killed in 1997 in suspicious circumstances or was killed because he was Shia or because of his connections to the Saddam regime". The judge went on to consider the circumstances and found that on the evidence "things were relatively stable for the wife's family until 2012" and contrasted that with the country materials which demonstrated that 2012 was many years after the fall of the Saddam regime and that if they had been targeted as a result of a perception of them being collaborators it would have happened long before 2012. The judge found that whether or not the incidents took place that there was no evidence to suggest that they were targeted as a result of a Ba'ath Party connection.
20. The judge at [30]did make a finding that if the Appellant had really thought that the incidents involving the wife's family in Iraq was as a result of any Ba'ath Party connection that this would be something he would have put forward in the screening interview. As set out in YL (China) the judge took into account that the Appellant was not asked to expand on his reasons for not wishing to go back to Iraq and was asked to give brief reasons. However it was open to the judge to take into account that he had failed in any regard to mention the problems faced by the family and as a collaborator in the context that this was "the primary reason" why he could not return to Iraq.
21. However as can be seen by reading the judge's findings cumulatively, the judge did not reject his account solely for the reason that he had failed to mention the real reasons behind the claim for asylum in the screening interview. The judge's findings when read cumulatively were as follows. The Appellant was unable to give details in his asylum interview as to the reasons for his wife's father's killing in 1997 and he was unsure whether it was because he was a Shia or because of any connections to the Saddam regime. The judge took into account the Appellant's evidence that the family had been living peacefully until 2012. The judge found that this was many years after the fall of the Saddam regime and that had they been targeted as a result of the perception of them as collaborators, it would have happened long before 2012. The judge found that he was not on a "watch list" as a result of any role of an engineer in the draining of the marshes because the activities took place twenty years ago and there was no objective evidence or country materials that had been identified before the Tribunal to demonstrate that engineers working for the regime that length of time ago were at risk; even less so that there was such a list of such engineers as asserted by the Appellant. The judge found that even if there were such Arabs who did feel ill-feeling, there was no evidence of any organised targeting by such individuals. Consequently the judge rejected the Appellant's account and his evidence that his name would have been found on data looted from government offices and found that to be "entirely speculative". Furthermore the judge found that even if there were any (in a highly unlikely event) that if they did find out, he would be able to point to the fact that he himself had been persecuted by the Saddam regime for defection at the time that he had been involved.
22. At paragraph [32] the judge made further findings (which have not been a subject of challenge in the grounds). Those findings considered the Appellant's conduct namely, that the judge found the Appellant had returned to Iraq on a number of occasions as a visitor in 2005, 2008, 2011 and 2013 and that as a result of that, the judge found that it undermined any claim that he would be at risk of violence. Furthermore, it was open to the judge to find that he had not only visited Iraq himself but that he had taken his family members on one or more of the visits.
23. It was therefore open to the judge to find on the evidence that this was inconsistent with his claim that he was fearful of violence targeting him and his family members as a result of any Ba'ath Party connections or work as an engineer.
24. At paragraph [33], the judge also gave reasons as to why he reached the conclusion that he would not be at risk on return by reference to the extended family members that continued to live in Iraq safely.
25. When looking at the findings and reading the determination as a whole, it is plain that the judge gave a number of evidence-based reasons for rejecting the core of the Appellant's account and did not do so by placing undue weight on the screening interview or any failure to mention the core reason for his claim in the screening interview. The judge, in fact, considered the evidence as a whole and not just that of the screening interview when reaching his overall assessment. Thus Ground 1 is not made out.
Ground 2:
26. I now turn to Ground 2. This relates to the issue of humanitarian protection and the assessment of Article 15(c). It is asserted in the written grounds that the judge rejected the Appellant's Counsel's submission that his particular circumstances and combination of factors affecting the Appellant and his members meant that they would be at risk of indiscriminate violence which reached the level that would breach Article 15(c) (see paragraph [34]). In his oral submissions Mr Burns submitted that the particular circumstances relating to the Appellant which would make him more specifically affected were that he would be perceived as a collaborator and that being so, he would not be able to relocate. He submitted that in the light of his particular circumstances of being perceived in such a way that he could not relocate and would have no support from any tribal links and he would be exposed to a level of treatment which would meet the threshold necessary for a breach of Article 15(c). Mr Burns confirmed that the Appellant's case was not being advanced on any other particular circumstances.
27. The judge at [34] set out the evidence that had been placed before him. In terms of country information and objective material, he made reference to the Appellant's reliance on the Iraq Bulletin update 2013 and that he had also considered the OGN for August 2014. Looking at the Appellant's bundle, the only evidence contained in it was an article relating to the Marsh Arab rebellion (2008) and an article relating to medical health care in Iraq. No other country materials were placed before the Tribunal. Thus where the written grounds assert at paragraph 11 that the submission made to the judge was that the situation in Baghdad had deteriorated since that material, there was no country material evidence provided to the judge to support such a submission. As the judge found at [34] on the evidence that had been placed before him, Baghdad was not a "contested area" compared with the other areas in Iraq and that there was no evidence, advanced on behalf of the Appellant, that would establish a degree of indiscriminate violence characterising the conflict in Baghdad at such a high level as to breach Article 15(c). Based on the evidence before him that was a finding plainly open to the judge even if the Appellant's Counsel had not conceded that, there was no evidence to establish that there was a degree of indiscriminate violence to reach the threshold of a breach of Article 15(c).
28. Whilst the grounds rely upon the particular circumstances of the Appellant which would make him and his family members specifically affected, Mr Burns confirmed that they are advanced on the basis of his perceived profile as a collaborator. However, this risk was rejected by the judge for the reasons given earlier in the determination and therefore could not give rise to any breach of Article 15(c) based on the same facts. No further circumstances have been advanced on behalf of the Appellant. Consequently on the evidence provided before the judge, it was open to him to reach the conclusion that there was no evidence to demonstrate that the circumstances on return to Baghdad would be in breach of Article 15(c). The grounds do not challenge the judge's findings paragraphs [36] to [37] where the judge considered the evidence relating to the Appellant's son and his medical circumstances. He reached the conclusions that he had care needs rather than medical needs but in any event that there was a sufficient level of health provision, having addressed that question by reference to the country materials that were placed before him. Thus the judge had considered other circumstances of the family.
29. The judge promulgated the decision on 6th August 2015 which was well before the country guidance decision in AA (Article 15(c) (Iraq) CG 2015 544 (IAC) which was not promulgated until October 2015. I have heard no submissions from either party relating to this decision which was made after the judge's determination. Nonetheless the findings made are broadly consistent with that decision noting that Baghdad city was not a "contested area" and at [132] the panel did not find that the level of indiscriminate violence in Baghdad city or the Baghdad governorate as a whole came "even close to crossing the Article 15 threshold". Nor does the Appellant fall within any of the enhanced risk categories and the judge properly considered the medical circumstances, to which there has been no challenge..
30. In summary, the judge made a decision on the evidence that had been placed before him and on the country materials that he was asked to consider by the parties and reached sustainable findings on the totality of the evidence.
31. The grounds do not demonstrate any error of law in the consideration of the issues for the reasons set out above. Consequently the appeal is dismissed.

Notice of Decision

The decision of the First-tier Tribunal did not involve the making of an error on a point of law. The decision of the First-tier Tribunal is upheld.

Signed Date: 29/11/2016

Upper Tribunal Judge Reeds