Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/05767/2013

THE IMMIGRATION ACTS

Heard at Glasgow
Determination promulgated
on 15 November 2013
on 16 December 2013

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

KAZAL ASSEF FATTAH
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Mr E MacKay, of McGlashan MacKay, Solicitors
For the Respondent: Mr A Mullen, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1) The appellant is a citizen of Iraq, born on 7 November 1983. She appeals against a determination by First-tier Tribunal Judge Quigley, promulgated on 29 July 2013, dismissing on all available grounds her appeal against removal to Iraq.
2) The appellant entered the UK as the spouse of Mr Shoorsh Ahmed Ali. In course of an interview regarding her application for further leave to remain as a spouse it emerged that the birth certificate of her son, born on 21 November 2011, names the father as Ismail Abdullah.
3) These are the grounds of appeal to the Upper Tribunal:
1 The appellant’s appeal against refusal of her claim for asylum and breach of her human rights was rejected by the Immigration Judge (“IJ”) of the First-tier Tribunal (“FTT”) in terms of decision promulgated on 29 July 2013.
2 There are two issues: first, whether the appellant’s account was credible; and second whether there will be any risk on return: The IJ has erred in relation to both issues because:
3 She erred in law in relation to the first issue in holding that the appellant was not a credible witness (see paragraphs 37 to 51) because:
3.1 Speculation: the credibility of a witness is a matter for the judge who heard the evidence, but adequate reasons must be given. The first and principal reason the IJ held against the appellant on the this issue was because she did not accept that the appellant married Shoorsh Ahmed Ali in the first place, but instead was married to Ismail Abdullah, the father of her child. She reaches this conclusion by speculating that (a) the copy Birth Certificate of her child “…does seem to indicate that the appellant and Ismail Abdullah have had some form of marriage ceremony …” (paragraph 44) and (b) there is “… no reason to find that the Assistant Registrar … did not require to see original documents evidencing the marriage of the parents” (paragraph 44). Instead of speculating over whether the appellant married Ismail Abdullah, the IJ should have focussed on whether she accepted that the appellant married Shoorsh Ahmed Ali. The absence of a clear finding on a crucial issue undermines the decision of the IJ in relation to her approach to credibility. Nor is such an approach justified by reference to other material submitted (see paragraph 45) in relation to another application.
3.2 Other: the IJ criticises the appellant for not applying for asylum earlier (paragraph 48), but a period of 3/4 months (from December 2012 to March 2013) is not significant in the circumstances. What is significant is that the appellant did not think until rejection of her application for LTR that she would need to apply for asylum. Personal responsibility for her situation is not relevant paragraph 50).
3.3 Conclusion: the way in which the IJ has dealt with the credibility of the appellant, principally speculating on whether she was married not to Shoorsh but to the father of her child was an error in law.
4 She erred in law in relation to the second issue in holding that there was no risk on return (see paragraphs 52-53 (also at pars 33, 34 when the expert report is also discussed)) because:
4.1 Reason(s): the IJ states at paragraph 37 that she is not prepared to accept the evidence of the appellant on whether her family will wish to take revenge on her by killing her (discussed in the preceding paragraph (36)) because she did not “ … find her to be a credible witness on many aspects of her claim …” (paragraph 37). The IJ then goes on to discuss the matters referred to above. It does not follow from the fact that a witness may by lying about one thing, that she is untruthful about other matters. Therefore no//inadequate reasons(s) are given for disbelieving the appellant on whether her family would wish to harm her.
4.2 Expert: if that is correct, then what remains by way of evidence on risk on return is what the expert says in his detailed Report (particularly at paragraphs 116, 127-130, and 182, 183(). The distinctions he makes in terms of categories//levels of risk to which the appellant may be exposed is (i) as a Sunni and as a Kurd they would be lower paragraph 183 in his Report); while (b) as a woman they would be lower only if the family were not concerned at her activities (paragraph 183). He is firm that general background evidence indicates that there is a real risk of persecution on this ground depending on the attitude of the family (see paragraph 4.1 (supra)).
4) At the outset of the hearing in the Upper Tribunal, the Presenting Officer lodged without objection information from the website of the General Register Office for Scotland about registering a birth. This includes the following:
A father who is not married to the mother can only register the birth and be named in the register as the father if:
He jointly signs the register with the mother;
He and the mother sign declarations … that he is the father; or
A court declares that he is the father and the mother registers the birth.
…
What documents should I take to the Registrar?
You should take with you:
The card issued by the hospital;
The marriage certificate of the child’s parents.
Do not worry if any of these documents are not available as the Registrar can still proceed to register the birth.
5) Mr MacKay submitted that the information from the General Register Office suggested that the appellant might have registered the birth as she claimed, and it was not a reasonable inference that she must have produced a certificate of marriage to Ismail Abdullah. Mr Mullen submitted on the other hand that the information was to be read as to the effect that while a birth might be registered, a father’s particulars would not be included in the certificate without the necessary formalities. That is, I think, the obvious and natural reading.
6) This conclusion is fortified by a full reading of the determination, which gives good reasons for rejecting the appellant’s general credibility, and on reference to the underlying evidence. The respondent had information that the marriage application was based on forged documentation (C1 and C2 of the respondent’s bundle, paragraph 45 of the determination). Page C1 also discloses that at interview the appellant and Mr Shoorsh Ahmed Ali began by contradicting themselves over whether they married in the UK (as they said at first) or prior to entry (as they had said in the previous application, and to which they reverted when their marriage certificate was asked for, although they did not have one with them).
7) The more the matter was examined at the hearing, the clearer it became that the judge’s conclusion was not speculative, but well justified, and that the point taken at ground 3.1 has no substance.
8) The criticism at 3.2 that the judge was not entitled to treat the delay of 3-4 months as adverse to the appellant is on its face a weak one. It is weakened still further when it is seen that the application for leave to remain upon which the appellant was relying during that period of delay was fraudulent. To delay in the hope that a fraudulent application will succeed must be adverse in the analysis of whether an appellant is an honest witness.
9) The point at 4.1 that a witness may be untruthful upon one matter but reliable upon another is correct, as far as it goes; but judges are entitled to find that unreliability in one part of an account reflects adversely on another.
10) It is doubtful whether the expert conclusions, conditional as they were, would have entitled the appellant to succeed; but on adverse credibility conclusions, they did not take her case anywhere, and no more need now be said.
11) The appellant has not shown that the determination of the First-tier Tribunal errs in law, and it shall stand.
12) No anonymity order has been requested or made.

19 November 2013
Judge of the Upper Tribunal