Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/04195/2015

THE IMMIGRATION ACTS

Heard at Birmingham Magistrates Court
Determination Promulgated
On 14 September 2016
On 27 September 2016

Before

UPPER TRIBUNAL JUDGE KOPIECZEK

Between

Men
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mrs A Bhachu, Counsel, instructed by J M Wilson, Solicitors
For the Respondent: Mr D Hills, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a citizen of Iran born on 14 May 1982. He arrived in the United Kingdom on 22 November 2012 and claimed asylum on 19 December 2012. On 17 February 2015 that claim for asylum was rejected and a decision made on 27 February 2015 to remove him to Iran pursuant to section 10 of the Immigration and Asylum Act 1999.
2. His appeal against that decision came before First-tier Tribunal Judge S D Lloyd ("the FtJ") at a hearing on 4 June 2015, following which the appeal on asylum, human rights and humanitarian protection grounds was dismissed.
3. In order to put the appellant's grounds of appeal to the Upper Tribunal into context, I set out the basis of the appellant's claim and the decision of the FtJ.
The appellant's claim
4. This summary of the appellant's claim is taken largely from the summary given by the FtJ, but I have also had reference to the appellant's witness statements and the asylum interview.
5. The appellant claims that he worked for a number of years in a print shop, working on the nightshift on the printing presses. He also sometimes worked during the day.
6. He was approached by a cousin who told him that one of his friends wanted to print an anti-government leaflet. The appellant spoke to a colleague, S, and they went to see the appellant's cousin's friend. It was decided that it was too dangerous to print a leaflet but they decided to print a newspaper with a false name instead.
7. They decided initially to print a "fake" weekly newspaper as an experiment to see if it attracted any adverse interest from the authorities. A thousand copies were printed and the appellant's cousin's friends distributed them. There having been no reaction from the authorities, they decided to print the paper with a political message. Another thousand copies were distributed, but this time the newspaper contained an article about boycotting the elections. The appellant and S printed it whilst they were working on the nightshift on 2 November 2012. A third person, their manager, was usually there but was absent that night because they had told him he would not be needed.
8. The appellant finished his nightshift between 4 a.m. and 5 a.m. and went home. At 10 a.m. the owner of a neighbouring shop told him that the print shop was being raided by plain clothes police and that all the workers had been arrested, with computers being taken.
9. The appellant phoned a friend and went to see him at about midday. His friend bought him a bus ticket to Tehran where he went and stayed with his sister. His mother spoke to his sister who told her that his house had been visited by plain clothes men who had seized his laptop and other property. He also spoke to his brother who told him that all three people who had distributed the newspaper had been arrested. S ran away and has not been seen since.
10. The appellant's brother-in-law paid an agent to get him out of the country and he left Iran illegally on 10 November 2012, arriving in the UK on 22 November 2012, when he was arrested.

The decision of the First-tier Tribunal
11. At [17] - [20] the FtJ resolved in the appellant's favour a number of credibility issues raised in the Reasons for Refusal Letter. These related, in summary, to the date of publication of the first newspaper, the appellant's description of the newspaper as a "weekly", and alleged inconsistency in terms of his knowledge of the arrests of the men who had distributed the newspaper.
12. As regards the delay of about one month before the appellant claimed asylum after his arrival, the FtJ concluded that it was a matter that adversely affected the appellant's credibility although he said that he would afford that matter "only cautious adverse weight".
13. He then went on to make a series of adverse credibility findings. At [24] he said that he failed to understand why it was claimed to have been thought that the distribution of the first edition would be any indication at all of being able to distribute more inflammatory material safely.
14. At [25] he found that there was a "dearth of evidence" in respect of how the newspaper was designed and who was responsible for actually printing the article which apparently led to the adverse interest in the appellant by the authorities. Although there was an indication that the appellant was very likely to have been involved in the design and editing of the papers, there was no mention by the appellant of that process, or how he expected to be able to manage both to design and print the publication without detection from his employer.
15. In the next paragraph the FtJ raised the question of why the appellant ever became involved in the enterprise at all. He did not claim to have been politically active before or after the events or to have any strongly held views. The FtJ said that he would have expected the appellant to have been aware of the dangers involved in the enterprise, which made his involvement and willingness to get involved in the group and their activities all the more surprising. He concluded that there was a rather "obvious hole" in the account in terms of the only apparent connection being that the man who had approached him initially was his cousin, although there was no other elaboration of this part of the account.
16. He concluded at [27] that it was unlikely that the appellant would risk being caught with a copy of the publication itself when he left the print works, let alone to have had it with him when he fled, knowing that he would be making an illegal border crossing. This related to the appellant having taken a copy for himself of the second publication
17. The FtJ remarked on the fact that there was no other documentary "or corroborative evidence". Despite risking bringing with him a copy of the newspaper which was the apparent cause of the problems, he did not bring with him anything else. Notably, there was no evidence to support his claim of having worked at the printers for eleven years and no evidence that he had attempted to obtain anything to support his account. The FtJ said that this was surprising given that it had been over two years since his claim and he had been in touch with at least one member his family since entering the UK.
18. At [30] - [31] the conclusion was reached that the timeline, of finishing work at about 4 a.m. or 5 a.m. and being contacted before 10 a.m. about his shop being raided, was very unlikely. The appellant had explained that by saying that the men had been caught distributing the paper, arrested, confessed under torture and given his details and details of the print shop. The FtJ said that for all that to have happened, and for the raid, arrests and seizures all to have taken place before 10 a.m. "borders on the barely plausible, let alone credible".
19. The FtJ went on to state that the appellant had not been able to give any first hand evidence of the arrests, the raids, or any experience at all of interest in him from the authorities. His evidence of what had happened to S or the three distributors was also "hearsay at best" and the appellant was not able to be certain of why the other print shop workers were readily released but says it must have been because the authorities had already been given his name by the distributors. He concluded that the absence of any "first hand evidence" did not help his case at all. Although he claimed to have been in touch with his mother since arrival in the UK, there was no evidence before the FtJ from his parents, brother or sister, whose evidence he concluded may have assisted. There was no suggestion that the appellant had made any attempt to get a statement or other evidence from them.
20. He thus concluded that applying the lower standard of proof, the appellant's account was not credible, and he had not established that he was wanted by the authorities in Iran.
The grounds of appeal and submissions
21. The appellant's grounds, in essence, complain about various of the FtJ's adverse credibility findings. The essential complaint is, in summary, that the points taken against the appellant by the FtJ are not matters that the appellant was given the opportunity to deal with, and are not matters that were identified in the respondent's decision letter.
22. The respondent's 'rule 24' response contends that there is no error of law in the FtJ's decision and that detailed and sustainable reasons have been given as to why much of the appellant's evidence was rejected. The grounds, it is asserted, amount only to a disagreement with the FtJ's conclusions.
23. At the hearing before me Mr Mills provided the notes of the Presenting Officer ("PO") from the hearing before the FtJ. Those included typed preparatory notes and a manuscript record of the appellant's oral evidence, including in response to questions by the FtJ.
24. Mrs Bhachu did not object to the respondent's reliance on that document, albeit that there was no witness statement producing it. She accepted that it was an accurate record of the appellant's oral evidence, and indeed accorded with her own record.
25. She also accepted that one of the issues raised in the grounds in terms of the issue of no supporting documentary or other evidence referred to by the FtJ at [29], is a matter that was in fact raised with the appellant. It was submitted however, that the other points raised in the grounds about matters not being put to the appellant held good.
26. Mrs Bhachu relied on her skeleton argument, and the cases cited in it, in particular MM (Unfairness; E&R) Sudan [2014] UKUT 00105 (IAC) and AM (fair hearing) Sudan [2015] UKUT 00656 (IAC), and HK v Secretary of State for the Home Department [2006] EWCA Civ 1037.
27. The latter decision concerns the assessment of issues of plausibility, and the Upper Tribunal decisions relate to fairness in terms of a case being put to an appellant.
28. It was submitted that there was a parallel with, for example, an issue that may arise under Appendix FM of the Immigration Rules, where the issue so far as the respondent is concerned, was the financial requirements of the Rules, whereas the judge took issue with the genuineness of the relationship, without the matter having been flagged up in advance. Such a parallel is even more potent, it was argued, in terms of an asylum case.
29. Particular features of the grounds with reference to the detail of the FtJ's decision were referred to.
30. Mr Mills argued that, one way or another, the FtJ had identified matters which were either raised in advance, for example in the asylum interview, or which had been put to the appellant during the course of the hearing. It was accepted that further questions could have been put to the appellant, or matters could have been followed up but the matters were sufficiently flagged up in the asylum interview or at the hearing.
31. Furthermore, a lack of evidence, or vagueness in an account, for example as identified by the FtJ at [25], concerned matters that the FtJ was entitled to find against the appellant on.
32. So far as the 'timeline' point is concerned, referred to by the FtJ in [31], the FtJ was making the general point that an awful lot appears to have happened in a short space of time from the appellant leaving his work in the early hours of the morning and the raid on the shop.
33. In reply it was submitted that that last matter was not specifically put to the appellant, although it is correct that he was asked in the interview why the police came so quickly. Furthermore, it was no answer to the appellant's grounds to say that further questions could have been asked at the hearing on behalf of the appellant, when it was not apparent that those matters would feature in the FtJ's conclusions.
34. The matters identified in the grounds and in submissions are material in that it is not known what the outcome of the appeal would have been had the points been put to the appellant and his answers assessed.
Conclusions
35. It is necessary to explore in more detail the particular points in issue so far as what was, or arguably should, have been put to the appellant for his response.
36. I accept that as a general principle, matters which are said to reflect adversely on the credibility of an appellant's account should generally be put to an appellant. So much was also accepted on behalf of the respondent before me.
37. However, there are of course limitations to that principle. It is to be remembered that the burden of proof is on the appellant to establish his case to the lower standard. He can be expected to advance a case that is free from inherent implausibility, and consistent with the lower standard of proof an account that is not inherently weak or vague. The extent of any weakness, vagueness or implausibility, is a matter for individual judgement, to be assessed according to the specifics of the particular appeal.
38. The original grounds at [1] state that the FtJ's
"objections to the appellant's testimony are marred by a subjective ethnocentric viewpoint which prevents him from understanding the position of the oppressors in an authoritarian theocratic regime or the position of those oppressed by and attempting to resist it. His conclusions on plausibility drawn from this perspective amount to an error of law."
39. I have no hesitation in rejecting that overarching contention in relation to the FtJ's assessment of the appellant's account. In the first place, as I have already indicated, the FtJ resolved some matters in the appellant's favour, which had been identified by the respondent in the decision letter as adversely affecting his credibility. Furthermore, it is apparent that the FtJ was aware, and took account of, the political situation in Iran. So much is evident from [26] of his decision in terms of the appellant's awareness of the dangers involved in anti-government activity. In that same paragraph there is reference to country guidance about the repressive Iranian regime.
40. The 'ethnocentric argument' relates specifically it would seem to [30] - [31], which is the 'timeline' point. I do not consider that the FtJ's conclusions on that issue are marred by an impermissible ethnocentric approach.
41. Again, in relation to [30] - [31] Mrs Bhachu accepted that the appellant was in fact asked at the hearing by the FtJ the following question: "Why do you think they came so quickly?" referring to the police raid on the shop, presumably. The appellant's answer as recorded in the manuscript notes of the PO was that "At first I thought they had been arrested and given away, then I was sure that I had guessed right. They have given anything [sic] away."
42. Mr Mills submitted that it is evident from this that the issue was raised with the appellant at the hearing. Mrs Bhachu contended that that was dealing with a different point which was why the process of arrest, obtaining of information and the raid was so quickly performed, rather than the simple question of why the police came to the premises so quickly. It was submitted that the appellant was not actually asked about the timeline itself.
43. I am not satisfied that there is any merit in the contention that the appellant was not alerted to the 'timeline' being a potential issue in terms of credibility. He was clearly asked why he thought the police came to the premises so quickly. In other words, the FtJ was evidently pointing out that the time interval from the appellant having left work and the raid was a short one. It was open to the appellant to explain that, for example, the police act quickly, interrogate immediately and act swiftly to quell, any sign of dissent. I am satisfied that the FtJ was entitled to come to the conclusion that he did in relation to the 'timeline'.
44. Again, taking the points raised in the grounds in turn, the complaint about [26] is in terms of the FtJ's questioning of why the appellant ever became involved in the enterprise at all. He said that the appellant does not claim to have been politically active before or after the events, nor to have held any strong views. He referred to country guidance in terms of the risks that, for example, journalists or others who publish anti-government political opinion risk. He concluded that the appellant would have been aware of the dangers. Indeed, that he was aware is clear from the asylum interview, for example from questions 75 and 88, although there are other examples. The FtJ concluded that the appellant being aware of the dangers would make his involvement and willingness to get involved in the enterprise all the more surprising. He referred to the only apparent connection being that the man who approached him initially was his cousin, and that there was no other elaboration on that aspect of the account. The FtJ described that as an "obvious hole" in the account.
45. The complaint in the grounds at [3] states that:
"[the FtJ] has no experience of living under such conditions or of how the people who are required to do so feel and react. He has no basis to belittle the appellant's anger and courage."
46. Again, I do not accept that insofar as the grounds complain that there was an impermissible ethnocentric approach to this aspect of the appellant's account, that complaint has any merit. It is simply unarguable to suggest that the FtJ was unaware of the fact that individuals in Iran do take the risk of becoming involved in anti-government activity. Again, I refer to [26] of his decision.
47. However, as is pointed out in the appellant's skeleton argument for the hearing before me at [4], this is in fact a matter that the appellant was asked about in his interview at question 94. It was put to him that living in Iran, and working in the print industry, he must know how harshly the regime dealt with those who are anti-government. He was asked why therefore, he agreed to take part. His answer was that "we were talking and I got influenced and said OK".
48. Mrs Bhachu's point about that aspect of the interview is that in fact the appellant's explanation as to why he got involved was not taken into account, or least is not reflected in the FtJ's decision.
49. I do consider that there is some merit in that aspect of the grounds. The appellant gave at least some explanation in answer to question 94. However, it seems to me that there is grater force in the argument on behalf of the appellant on this issue when other answers in interview are considered, and to which I was not referred. It is apparent from earlier questions that the appellant said that he was scared and resisted involvement, for example, in answer to question 88. At question 91 the appellant was asked why, if he was scared and neither he nor S were politically active, he agreed to help. The appellant's answer was that S insisted that they do the job.
50. In answer to question 93, when asked again why he agreed to help, he said as follows:
"To be honest, they said why are you scared, these are things no-one will notice. They said that during the elections people poured onto the streets and some were raped and killed due to demonstrating."
51. There is then the answer to question 94 to which I have referred.
52. Where at [26] the FtJ said that he would have expected the appellant to have been aware of the dangers, and taking into account that the appellant plainly indicated in interview that he was aware of the danger, one cannot avoid the impression that the FtJ failed to take into account these aspects of the interview in which the appellant gave an explanation as to why he became involved.
53. At [4] of the grounds it is asserted that the FtJ's reasoning is contradictory. Thus, it is said that at [27] he questioned how the appellant brought the newspaper (out of Iran) with him, yet at [29] it is said that he should have brought more documents with him.
54. Mrs Bhachu accepted that the point about why no other documentary evidence was provided is something that was put to the appellant, as is clear from the PO's manuscript notes. Although there is in fact more to that aspect of the grounds than the question of whether the issue was put, i.e. the contention that the FtJ's reasons are contradictory, I do not accept that there is any merit in that contention. The FtJ was simply making the point that if the appellant had decided to take the risk of bringing a piece of incriminating material with him, there was no apparent reason as to why he did not bring other supporting evidence. Furthermore, the FtJ was entitled to take into account that there was in fact no evidence that the appellant had even attempted to obtain further supporting evidence from his family in Iran, despite his claim for asylum having been made over two years ago and his still being in touch with at least one member of his family since entering the UK.
55. I note that at [29] the FtJ referred to there being no other documentary or "corroborative" evidence. There is of course no requirement for corroboration but I do not consider that that is the sense in which the FtJ used that word and no complaint is made in the grounds, or was made in submissions, about his use of that term.
56. The grounds take issue with [32], stating that whilst the FtJ casts doubt on the appellant's evidence as hearsay, the appellant is also criticised for not obtaining more "hearsay evidence" from his parents or other family members. The point was taken up in submissions by Mrs Bhachu in terms of the issue of what an asylum seeker is able to produce in terms of evidence.
57. However, I do not consider that there is any merit in the argument about the FtJ's conclusions in term of the appellant's failure to obtain evidence or information from family members in Iran, for reasons already explained in relation to [29].
58. However, at [32] the FtJ started that paragraph by saying that the appellant was not able "to give any first-hand evidence of the arrests, the raids, or any experience at all of interest in him from the authorities". He went on to state that his evidence of what had happened to S or the three distributors is also "hearsay at best". He referred to the appellant's uncertainty as to why the other print shop workers were readily released, his account being that it must be because the authorities had already been given the appellant's name by those distributors. He went on to say that he would not expect the appellant to wait around to be arrested just to be able to give better evidence, but that "the absence of any first hand evidence at all does not help his case".
59. The basis of this aspect of the FtJ's adverse credibility assessment is not entirely clear. The appellant plainly could not, on his account, give any first-hand evidence of the arrests, raids or interest in him from the authorities if by that the FtJ meant that the appellant did not witness any of those things with his own senses. It is in the nature the appellant's account that he was not present when the premises were raided or the others arrested. Nor was he present when he alleges visits to his house took place by members of the security forces. Inevitably, all the appellant could say was what he had been told.
60. It does not seem to me that the FtJ was at that point at least, referring to an absence of evidence from others who could give information about those facts, because the FtJ said that he would not have expected the appellant to wait around to be arrested. In other words, it does seem that the FtJ was making an adverse credibility finding on the basis that the appellant was not able to give direct, first-hand evidence of those events. He concluded that the absence of such evidence did not help his case, but it is impossible to see how the appellant could have provided such evidence on the basis of his account.
61. Furthermore, I accept that there is a degree of contradiction in [32] in terms of the FtJ's criticisms of the appellant for providing no first hand evidence, yet also taking into account against the appellant that there is no second hand evidence from other sources. He was entitled to take into account the lack of supporting evidence, as already explained, but the point about the contradiction in that paragraph is a different one.
62. The renewed grounds take issue with what the FtJ said at [24] in that it was not comprehensible as to why it was thought by the appellant that distribution of the first print run of the newspaper would be any indication at all of the ability to distribute more anti-authority propaganda, when no such material appeared in the first print run. The grounds contend that this is one of the matters that was not raised with the appellant. In fact, as Mr Mills pointed out in submissions, that was a matter that was raised in the asylum interview.
63. He referred to questions 96-98. In fact, the matter is more clearly raised at question 119 when the appellant was asked squarely how they were going to gauge if there would be a problem from the distribution of the first newspaper given that it contained nothing of an inflammatory nature so far as the government was concerned. The appellant's answer was that in Iran it is not permissible to make a joke against the president, but because the President had made a comment (about a sand storm coming from Iraq) and that they had "put it in a different way". He also said that it was in their newspaper and they wanted to see how they (the authorities) would react to it.
64. The point was again raised with the appellant at question 122, but also raised in the question of how it would be known that it was their print works that printed it. The appellant repeated that it was decided that they needed to do that to see what the reaction was. He said that they wanted to see if there was any difficulty with distribution and that it "just about distribution".
65. At [24] the FtJ said that he failed to understand why it was claimed that its distribution would be any indication at all of being able to distribute more inflammatory material safely. The matter was put to the appellant in interview and there is no unfairness in the FtJ's identification of this as an adverse credibility matter.
66. At [25] the FtJ referred to a dearth of evidence in terms of how the newspaper was designed and who was responsible for actually penning the article which led to the difficulties with the authorities. He concluded that because there was mention of genuine articles being taken from other publications produced by that print works, this indicated that the appellant was very likely to have been involved in the design and editing of the papers. However, he stated that there was no mention of that process, or how he expected to be able to manage both to design and print the publication without detection from his employer. This again, is asserted as being a matter that was not put to the appellant.
67. It was not asserted before me on behalf of the respondent that the issues raised [25] were put to the appellant. It was contended however, that the FtJ was entitled to comment on a lack of evidence and on an issue of vagueness. In this respect however, I also consider that there is merit in the complaint raised in the grounds. It is not apparent that the appellant was asked, either at interview or during the hearing, about the process by which the newspapers were produced. The matter is not flagged up in the decision letter either. During the course of the interview the appellant answered the questions he was asked about the creation of the newspapers but he was not asked in detail about the process. In contrast, I note that he was asked in detail about what his employment consisted of, for example at question 59 and onwards. He gave further details in answer to question 72. However, those questions do not relate to the particular publications which are the subject of this appeal.
68. In terms of how the appellant expected to be able to manage both the design and print of the publication without detection from his employer, this it seems to me is an important issue which was not put to the appellant. I do note however, that at question 110 the appellant was asked who was present at the print works when he printed the experimental paper. The appellant gave details, and in answer to question 111 he said that a person called [H] was told by S not to come in "as he was our manager". At question 95 the appellant was asked whether anyone helped him at the print works after he agreed to produce the newspapers and the appellant said that no one else knew. There is therefore, at least partially, in answer to question 111, some explanation as to how the distribution at least and production the night before the distribution, took place without anyone else at that particular time being aware of it. That is not a matter that is referred to by the FtJ in his findings.
69. To summarise, I do not consider that every matter raised in the grounds has merit, for the reasons I have explained. However, I do conclude that significant aspects of the FtJ's adverse credibility findings suffer from the deficiencies to which I have referred. In the order in which they appear in the FtJ's decision, these relate to [25] and the process of production and lack of detection by his employer; [26] and the reasons for the appellant's involvement in the enterprise; the hearsay/first-hand evidence point with reference to [32] and the separate issue in terms of inconsistency in the findings in that same paragraph.
70. The assessment of credibility is very often a difficult exercise, particularly in circumstances where there is a lack of supporting documentary evidence. The FtJ in this case undertook a conscientious appraisal of the evidence, finding in favour of the appellant on some points. Aspects of the credibility findings are legally sustainable in their own right.
71. However, the matters I have identified as being deficient in the credibility findings are matters which it is evident the FtJ thought significant in terms of the assessment of credibility. Where he considered that a point was of perhaps marginal significance in terms of adverse credibility he said so, for example at [23] in terms of what was described as delay in claiming asylum.
72. However, it is important to remember that this appeal concerns a protection claim in terms of an asserted risk from the authorities in Iran where the consequences of anti-government activity can be severe. I should also say that in my appraisal of the FtJ's findings, I do detect a degree of failure to appreciate, or engage with, the contents of the asylum interview overall.
73. In the circumstances, I am satisfied that the FtJ erred in law in his assessment of credibility. The error of law is such as to require the decision to be set aside. Given that the issue of credibility will have to be reappraised, I consider that the appropriate course is for the appeal to be remitted to the First-tier Tribunal for a hearing de novo.
74. Although normally speaking on a remittal it is appropriate to state that no findings of fact are to be preserved, I do not consider that that should be the case with respect to the FtJ's findings at [17] to [20], those findings being in favour of the appellant. Those adverse credibility points raised by the respondent in the refusal letter were easily disposed of by the FtJ in favour of the appellant, and it seems to me that those matters do not raise anything of substance adverse to the appellant's credibility. Accordingly, the findings at [17] - [20] in positive terms as to the appellant's credibility are to stand. Otherwise, no findings of fact are preserved, regardless of what I have said about the lack of merit in some aspects of the grounds. There needs to be a wholesale reappraisal of the appellant's credibility.
Decision
75. The decision of the First-tier Tribunal involved the making of an error on a point of law. Its decision is set aside and the appeal is remitted to the First-tier Tribunal for a hearing de novo before a judge other than First-tier Tribunal Judge S D Lloyd. No findings of fact are preserved except as indicated at [74] above.
Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Upper Tribunal Judge Kopieczek 26/09/16