Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA060972014

THE IMMIGRATION ACTS

Heard at: Stoke
Decision Promulgated
On: 17th May 2016
On 16 June 2016

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

MH
(anonymity direction made)
Appellants
and

Secretary of State for the Home Department
Respondent

For the Appellant: Dr Mynott, Counsel instructed by Broudie Jackson & Canter Solicitors
For the Respondent: Mr McVeety, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a national of the Islamic Republic of Iran born in 1986. He appeals with permission the decision of the First-tier Tribunal (Judge Pickup) to dismiss his appeal, on asylum and human rights grounds, against a decision to remove him from the United Kingdom pursuant to s10 of the Immigration and Asylum Act 1999.

Background

2. The Appellant arrived in the United Kingdom in December 2011 in possession of a valid Tier 4 (General) Student Migrant visa. On the 10th November 2012, a few days after that visa expired, he applied for asylum.

3. The basis of the Appellant's claim for international protection was that he had a well-founded fear of persecution in Iran for reasons of his imputed political opinion. Whilst in Iran he had come to the adverse attention of some members of the Baseej, even though at one point he had been a member of that organisation. His real difficulty was however the fact that whilst in the UK he had become involved in a charitable effort to assist victims of the earthquake in the Azeri area of north western Iran. The Appellant claimed that he had been involved in this relief effort, which had been perceived by the Iranian government as an implicit criticism of its own response. A man by the name of Morteza Esmailpour had been arrested and had given the authorities the Appellant's name. The Appellant claimed that a summons had been delivered to his home on the 29th October 2012 and that his family house had been raided the officers looking for him. He now feared that if returned to Iran he would be identified on arrival as someone with an outstanding summons against him. That identification would lead to interrogation and/or transfer to detention, both of which would be reasonably likely to include ill treatment amounting to persecution and a violation of Article 3 ECHR.

4. The Respondent rejected the entire claim for lack of credibility and corroboration.

5. The matter came before the First-tier Tribunal. The Appellant managed to produce a number of documents which he said corroborated his account. These included, for instance, online articles about the arrest and questioning of one Morteza Esmailpour. Whilst these documents were prima facie capable of supporting the Appellant's case, the Tribunal found that what he had actually done was to formulate a false account around real events chronicled in the public domain. The Tribunal did not find the account to be credible or plausible and dismissed the appeal.

Error of Law

6. The Appellant submits that the First-tier Tribunal erred in law in the following material respects:

i) The determination applies the wrong standard of proof;
ii) The Tribunal made findings not supported by the evidence;
iii) The Tribunal impermissibly required corroboration in the context of an asylum claim;
iv) There was a failure to properly apply the country guidance.

7. The grounds are lengthy and detailed, and Mr McVeety vehemently opposed each one. For reasons which will become apparent, it has only been necessary to deal very briefly with grounds (ii)-(iv).

Ground 1: wrong standard of proof

8. At paragraph 43 the determination reads:

"For the reasons set out herein, I find that there is no part of the appellant's account that I can accept as probably true".

At paragraph 65 it states:

"I find the suggest (sic) at Q79 of the appellant's interview the more likely scenario in this case. That is that the information about ME was easily obtainable by the appellant from the public domain and that he has just built his entire story from these different pieces of information and evidence"

[emphasis added]

9. Although the Appellant acknowledges that the determination does contain a direction to the correct, lower standard of proof at paragraph 27, it is submitted that these statements say much about the standard that was actually applied in this determination. Dr Mynott submits that the use of terms such as "probably" and "more likely" do not reflect the lower standard of proof applicable in asylum appeals. If the Tribunal was actually applying the civil standard, all of the findings are vitiated by this error. Mr McVeety accepted that this was so. He further accepted that the words are capable of suggesting that the wrong standard was applied. He submitted however that the phrases cited were "slips" and that a holistic reading of the determination will reveal the correct standard to have been applied. For instance at paragraph 27 the determination refers to the "lower standard of proof", and at paragraph 42 the Tribunal expressly states that in making findings in this appeal it has applied that lower standard.

10. It is arguable that where a determination contains conflicting directions, equal in number, it could be assumed that the correct standard has been applied. In this case however there is good reason not to take that approach. That is because approximately one third of this determination is taken up with what appear to be standard format legal directions, that is to say paragraphs that are held as a precedent and used as the basis for each new decision. Mr McVeety agreed that this must be so. There would for instance appear to be no reason for a direction in this appeal on the merits of fairness arguments raised in PBS cases [15], the correct approach to dealing with foreign criminals [16] nor indeed to Article 8 at all [9-21]. The directions at paragraph 27 and 42 appear to be standard paragraphs 'cut and pasted' into the decision. In contrast the phrases used at 43 and 65 directly arise in the analysis of the Appellant's case. For this reason I am satisfied that ground (i) is made out. To borrow a phrase, the Appellant is justified in his concerns that the "more likely scenario" is that the wrong standard was applied.

11. Mr McVeety quite properly agreed that if this ground was made out the entire determination would have to be set aside to be remade in the First-tier Tribunal.

Ground (ii): Findings not supported by the evidence/ failure to consider the evidenwith anxious scrutiny
Ground (iii): requiring corroboration

12. I take these grounds together since they are argued in that way.

13. On the day of the hearing the Respondent produced two documents found online, both of which address the arrest and imprisonment of Morteza Esmailpour. One of these articles contains a sub-headline "Morteza Esmailpour, an Iranian Shi'ite Muslim, served a six month prison term in Iran for his refusal to implicate Baha'i aid workers he served with after the 2012 Azerbaijan earthquakes". The Tribunal placed considerable weight on this headline to draw negative conclusions about the Appellant's claim that he had been identified by Esmailpour: "it makes no sense for ME to implicate the appellant when refusing to name those he was with" [at 62]. The Appellant takes issue with that logic on two fronts. Firstly, it is submitted that there was nothing inconsistent in Esmailpour refusing to name people still in Iran (and therefore vulnerable to arrest) and him giving his interrogators the name of a person whom he knew to be safe in the United Kingdom. Secondly, it is submitted that the Tribunal has failed to read the document with anxious scrutiny. Had it read the entire article, rather that the headline presumably written by an editor, it would have seen that Esmailpour himself nowhere claims to have been sentenced to six months in prison for a failure to name names. It is clear from the text itself that the issue of his Baha'i co-workers arose "in the middle" of his interrogation, so he was already in detention at that point. Further there was other evidence before the Tribunal which stated that he was sentenced to six months in prison for "assembly and collusion for committing crimes against national security": see the article dated 16th January 2013 from The Eurasia Review. It is submitted that the negative conclusion reached by the Tribunal on this point was therefore vitiated by a failure to consider all of the relevant evidence. I find this ground is made out.

14. Further it was submitted that the Tribunal erred in its approach to the summons. Whilst conducting its Tanveer Ahmed assessment the Tribunal had in effect declined to place weight on this document because of the "not uncommon experience" of the Tribunal being given doctored documents. Dr Mynott protested that this was an inappropriate basis upon which to reject the document. Were that a sustainable reason for rejecting documents, there would never be any point in any asylum seeker producing them. Whilst that is correct as statement of fact, it does not assist in this case. That is because the Tribunal had another reason for declining to place weight on the summons. It had never been produced in the original and there was no explanation why not. All the Tribunal had was a scanned copy of uncertain provenance. It was entitled to attach only limited weight to that document.

15. Finally, the Appellant complains that the Tribunal erred in requiring corroboration from the Appellant's father about how that summons was received. It is submitted that this was nonsensical, particularly since a corroborative statement from the Appellant's sister was rejected without any reason other than that she was his sister, and it was therefore "very easy" to get her to send an email backing him up. I agree that had that been the only ground for rejecting the summons, there would have been an error. It is trite asylum law that asylum seekers should not be required to produce corroboration and I agree that it would be perverse to draw adverse inference from the absence of evidence that would in any event have attracted no weight. However for the reasons given above, in this instance there was no discrete error arising from the Tanveer Ahmed assessment. Nevertheless as a result of my findings on Ground (i) in the re-making the First-tier Tribunal will have to conduct that assessment afresh.

Ground (iv): failure to apply country guidance

16. Dr Mynott submitted that the Tribunal had apparently ignored the guidance given in SB (risk on return -illegal exit) Iran CG [2009] UKAIT 00053 (IAC). At paragraph 57 of the present determination the Tribunal finds that the Appellant would have a "perfect defence" to any accusations of involvement in any covert opposition activity in the period following the Azeribaijan earthquake. Dr Mynott submits that in making this finding the Tribunal has overlooked the "clear guidance" in SB that return from the UK is in itself a risk factor and that risk had to be assessed taking that, as well as other matters, into account. The difficulty with that submission is that this was not the clear guidance in SB at all. Whilst the expert witness in that case, Dr Kakhki, offered an opinion to that effect, this was expressly rejected by the Tribunal:

"Whilst we have no difficulty accepting that as a result of recent events the Iranian government has sought to blame the UK (and US) governments for inciting the anti-regime protests, we are unable to accept that this has led to any significant change in the treatment of returnees?we do not think it would be justifiable to describe "being a returnee from the UK" or some such category even as a risk factor" [at 51].

This ground is therefore without merit.

Decisions

17. The determination of the First-tier Tribunal contains an error of law and it is set aside.

18. The decision is to be re-made in the First-tier Tribunal.

19. Having regard to the nature of the evidence I make the following direction for anonymity, pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 and the Presidential Guidance Note No 1 of 2013: Anonymity Orders.

"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 to amongst others, the parties. Failure to comply with this direction could lead to contempt of court proceedings".

Upper Tribunal Judge Bruce
12th June 2016