Tribunal decisions

The decision

IAC-fH-WYL-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/05323/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 10 November 2016
On 18 November 2016

Before

LORD BANNATYNE
(SITTING AS A JUDGE OF THE UPPER TRIBUNAL)
DEPUTY UPPER TRIBUNAL JUDGE GRIMES

Between

ASA
(anonymity direction made)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Ms Asanovic, Counsel
For the Respondent: Ms Ahmed, Home Office Presenting Officer

Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
Anonymity was not granted at an earlier stage. We find it appropriate to do so as there are protection issues. Unless and until a tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify the appellant or any member of his family. This direction applies to both the appellant and the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

DECISION AND REASONS
Background
1. ASA, the appellant, is a citizen of Iraq. He was born on 5 April 1996 and is now aged 20. He is an Iraqi Kurd and was born and brought up in the Sulaymaniyah Province of the Independent Kurdistan Region ("IKR") of Iraq. He claims to have left Iraq on 25 April 2013 by lorry for Iran. In a screening interview on 19 June 2013 he stated he left Iraq as he was at risk of being killed by his former girlfriend's family. In that interview, he gave the following account as recorded at paragraph 3.1:
"I was in love with a girl from my village (HA). The family were not in support of the relationship. When she became pregnant, I took her away and we went to live in Sulaymaniyah. I then went to work one day and before I got back she had been killed by her family. This happened on 25 April 2013 and I fled."
2. The appellant eventually ended up in France having travelled there via Turkey. On 27 March 2013, he was fingerprinted by the French authorities when he claimed to be an Iranian national named Ako Ali although in his screening interview; he failed to mention that he had been fingerprinted in France. He said he had only been fingerprinted for ID in Iraq and on arrival in the United Kingdom (paragraph 2.7). In any event he arrived in the United Kingdom on the back of a lorry and was arrested by the police on 23 May 2013. He subsequently claimed asylum on 19 June 2013.
3. The appellant submitted a Statement of Evidence Form dated 26 June 2013 and was interviewed in relation to his application on 14 November 2013. He subsequently submitted a statement dated 16 February 2015 accompanied by lengthy submissions, prepared by solicitors on Article 15(c) of the Qualification Directive and Article 3 of the European Convention on Human Rights. His application was rejected by the respondent on 11 March 2015 when a decision was also taken to remove him from the United Kingdom. Full details of the reasons for the refusal of the appellant's application are to be found in Annex A of the decision. The appellant was entitled to appeal against this decision to the First-tier Tribunal under Section 82 of the Nationality, Immigration and Asylum Act 2002. The appellant appealed to the First-tier Tribunal.
4. In a decision promulgated on 12 September 2016 the appeal was dismissed by the First-tier Tribunal.
5. The appellant sought permission to appeal to this Tribunal and it was granted on 14 October 2016.
Submissions on Behalf of the Appellant
6. It was first submitted that the First-tier Tribunal in making an adverse credibility finding at paragraph 41 of its determination had failed to have regard to the appellant being a child at the relevant time.
7. Secondly, at paragraph 43 the First-tier Tribunal had made adverse credibility findings based on a detailed analysis of the appellant's position at various points following his arrival in this country, regarding his employment for a short period in Iraq.
8. Counsel carefully took us through the position advanced by the appellant on each of these occasions. She submitted that there was no inconsistency between the various accounts given by him. Rather his position was a wholly consistent one. Accordingly the First-tier Tribunal had erred in holding that this was a basis upon which it could make adverse credibility findings. In any event the detailed analytical approach taken by the First-tier Tribunal was not an appropriate one where on a number of occasions when he gave statements on this matter he was a child.
9. The next argument advanced sought to attack the finding by the First-tier Tribunal at paragraph 45 relative to the failure of the appellant to explain how he was tracked down in Sulaymaniyah and the use of that finding to make negative credibility findings regarding the appellant.
10. It was first submitted that there was no duty on the appellant to explain this. Secondly, this question was asked by Counsel: how could he explain this without approaching his persecutors?
11. The final matter put before us was a challenge to the following finding of the First-tier Tribunal at paragraph 45 of its determination:
"The current as opposed to historic evidence on risk of men of honour killing does not suggest that a man involved in a relationship with an unmarried girl who falls pregnant as a result of that relationship is necessarily at risk."
It was submitted that the First-tier Tribunal had failed to take account of the Danish Immigration Services Report and the Canadian Immigration Report both of which were before it and in particular the Canadian Report at paragraph 1.2. In addition it had failed to take account of the expert evidence. It was further submitted that the use of the word 'necessarily' indicates that the standard of proof applied by the First-tier Tribunal Judge was too high.
Reply for the Respondent
12. Ms Ahmed argued that the first three grounds of appeal ran together. She first submitted by reference to paragraph 35 of the First-tier Tribunal's determination where it said this:
"I also take into account any relevant guidance and in particular the "Child, Vulnerable Adult and Sensitive Appellant Guidance" (Joint Presidential Guidance Note No. 2 of 2010) where relevant."
that it had taken into account the appellant's age where necessary.
13. She submitted that it was important to note that by the time of the hearing before the First-tier Tribunal the appellant was no longer a child.
14. It was her position that the First-tier Tribunal was entitled to make its findings at paragraph 41 that the appellant had misled the French authorities. This was not disputed. The First-tier Tribunal was entitled to consider this fact in relation to the issue of the appellant's overall credibility.
15. It was her position that the First-tier Tribunal had had proper regard to a number of factors which undermined the appellant's credibility and that it was entitled to arrive at the conclusion that his evidence was not capable of being accepted.
16. With respect to the fourth ground of appeal (regarding the First-tier Tribunal's approach to background evidence) she submitted that it stood or fell on the basis of the decision on the first three grounds of appeal and she added nothing further with respect to this matter.
Discussion
17. At paragraph 35 the First-tier Tribunal sets out that it is required to have regard to the fact that at various stages the appellant was a child.
18. From paragraph 41 onwards where the First-tier Tribunal turns to look at the issue of credibility, however we can identify no point at which it applies the guidance regarding children. It gives no weight to the fact that the appellant was a child when he made his journey to this country, arrived here and gave his initial interviews. We believe that this failure has materially affected the adverse findings on the credibility of the appellant made by the First-tier Tribunal. This failure to apply the guidance is most clearly seen in the comparison exercise carried out at paragraph 43 which takes no account of the appellant being a child at the time of certain of the interviews. It has no regard to his vulnerability at that time.
19. Nor at paragraph 41 does the First-tier Tribunal have any regard to the appellant's age and vulnerability at the time when he made the statements referred to therein.
20. We are persuaded that the First-tier Tribunal's failure to have any regard to the guidance regarding how to approach its task when dealing with a child amounts to a material error of law.
21. Turning once more to paragraph 43, we consider that the argument advanced by Counsel for the appellant that there are no inconsistencies in the various versions of events put forward by the appellant is correct. When we asked the respondent's representative to direct our attention to any such inconsistency she was unable to do so. It is our clear impression that the core of the appellant's story remains entirely consistent throughout. There was no basis arising from inconsistency between the various versions of events put forward by the appellant to make any adverse findings regarding his credibility.
22. This exercise carried out by the First-tier Tribunal at paragraph 43 and its decision that it evidenced material inconsistencies clearly forms an important, if not critical, part of its consideration of the credibility of the appellant. We believe that the decision which is reached based upon the analysis contained in paragraph 43 infects the rest of the First-tier Tribunal's consideration of the appellant's case. We are clearly of the view that this is a further material error in law.
23. At paragraph 45 the First-tier Tribunal makes the following finding:
"However, it has never been properly explained how they were able to locate H."
This finding once more forms the basis of an adverse credibility finding relative to the appellant. It is extremely difficult to see how evidence could be produced by the appellant on this issue without his approaching his persecutors. It could perhaps be argued that his family in Iraq could have provided certain information regarding this, however, the First-tier Tribunal at paragraph 44 made a finding that the appellant had no real contact with his family in Iraq, only having minimal contact with a brother. Accordingly, it did not seem that his family would be in a position to give any assistance on this issue. We are satisfied that it was not appropriate to base negative credibility findings on the ground of the foregoing finding.
24. The following further findings were made by the First-tier Tribunal at paragraph 45:
"The current as opposed to historic evidence on the risk to men of honour killing does not suggest that a man involved in a relationship with an unmarried girl who falls pregnant as a result of that relationship is necessarily at risk."
We are persuaded that this was not a finding that was open to the First-tier Tribunal on the basis of the evidence which was before it. First, this appears to have no proper regard to the terms of the expert report before it at paragraphs 5 to 16 and nor does it appear to have proper regard to the whole terms of the Canadian and Danish Reports earlier referred to. In particular it appears to have no regard to the Danish Report at 1.2. It appears that examples cited of such honour killings did relate to the period 2005 to 2007. However, there was no basis in the evidence to hold that these were not continuing to the present day. Rather the evidence points to them continuing to the present day. We believe that this is a further material error of law.
25. For the foregoing reasons we find that there were material errors of law in the First-tier Tribunal's determination and its decision cannot be sustained.
Decision
26. We accordingly set aside the decision of the First-tier Tribunal, which will have to be remade and remit the matter to a differently constituted First-tier Tribunal for that purpose.

Signed Date

Lord Bannatyne
Sitting as a Judge of the Upper Tribunal