Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/07307/2015

THE IMMIGRATION ACTS

Heard in Liverpool
Determination Promulgated
On Monday 16 January 2017
On Tuesday 7 February 2017

Before

UPPER TRIBUNAL JUDGE SMITH

Between

MRS I A
(ANONYMITY DIRECTION MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Sadiq, Legal Representative, Adam solicitors
For the Respondent: Mrs Aboni, Senior Home Office Presenting Officer

Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
Although anonymity was not granted by the First-tier Tribunal, the case involves protection issues and it is therefore appropriate to make an order. Unless and until a tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of her 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.

DECISION AND REASONS

Background

1. The Appellant appeals against a decision of First-Tier Tribunal Judge L.A.L. Paul promulgated on 27 June 2016 ("the Decision") dismissing the Appellant's appeal against the Secretary of State's decision dated 27 February 2015 refusing to vary her leave to remain and directing her removal under section 47 Immigration, Asylum and Nationality Act 2006; also refusing her asylum and human rights claims. The appeal against the Decision relates only to dismissal of the asylum claim.

2. The Appellant is a national of Iran. The basis of the Appellant's claim is that she says she is a Muslim who has converted to Christianity and will be at risk on that account. She says that she converted when visiting her son in Sweden in January 2012. She returned to Iran thereafter and says that she then joined a Christian group and evangelised with them. She and her husband came to the UK in August 2013 as visitors. The Appellant says that whilst she was in the UK, her daughter contacted her from Iran and informed her that the authorities had raided the house church to which she belonged and had seized incriminating documents and photographs. It is said that others from the house church had been detained and the Appellant's house had been sealed off. She then claimed asylum. Her husband has also been baptised as a Christian in the UK.

3. This is a slightly unusual case. The Respondent accepted that the Appellant is a Christian but does not accept that she was originally a Muslim. The Respondent did not accept therefore that she would be at risk generally for having renounced her religion and it was not accepted that the Appellant would come to the attention of the authorities on that account. Her account of the events on which she relied as the trigger for her claim was disbelieved.

4. The Judge dismissed the appeal on the basis that she did not find the Appellant credible. Permission to appeal was refused by First-tier Tribunal Judge Davidge on 29 July 2016. Permission to appeal was granted by Upper Tribunal Judge Gleeson principally on the basis that the Judge had failed to explain why she had not given weight to the evidence of the Appellant's son, whose evidence it is said was not challenged.

5. The matter comes before me to decide whether the Decision contains a material error of law and, if so, to re-make the decision or remit the appeal for rehearing to the First-Tier Tribunal.

The grounds and submissions

6. The Appellant's first ground concerns the evidence of two witnesses whose evidence was said to be key to the Appellant's case. They were the Appellant's husband and son. It is noted at [16] of the Decision that some questions were put to the Appellant's husband but it is there reported that no questions were asked of the Appellant's son. His statement confirmed that his mother had converted to Christianity. There are no findings made in relation to the evidence of either witness. Mr Sadiq submitted that it was incumbent on the Judge to make findings whether they were or were not believed. I drew his attention to what the Judge says at [37] of the Decision concerning the husband's evidence. Mr Sadiq submitted that this was not a direct finding that the Appellant's husband is not a credible witness. In any event, the fact remained that no findings were made in relation to the son's evidence.

7. The second ground concerned a continuation of the Appellant's challenge to the finding of the Respondent that the Appellant has never been a Muslim based on what it is said is a fundamental misunderstanding of the central tenets of the Muslim faith and an improper focus on the history and background to the Muslim faith rather than an investigation as to the practices of the religion. This submission is recorded in the Decision at [23]. Mr Sadiq developed this submission by giving as an example the Respondent's failure to appreciate that there is a distinction between the pillars of the Muslim faith for a Shia Muslim and for a Sunni Muslim. The Respondent has, he says, focussed on those in the Sunni Muslim religion rather than the Shia faith which is what the Appellant claims to have practised. The Respondent had therefore misunderstood in what she says at [14] of the reasons for refusal letter that the Appellant had in fact answered the question correctly. The Judge has compounded that error. He referred also to [15], [18] and [19] of the reasons for refusal letter.

8. In relation to this ground Mr Sadiq also directed my attention to the questions asked of the Appellant at interview from question [141] to [162]. He pointed out that those are largely directed at the Appellant's knowledge of what is said about Jesus Christ in the Muslim religion rather than focussing on what a practising Muslim would know about his or her faith. He submitted (or more accurately gave evidence) that Jesus Christ is mentioned in only twenty places in over six thousand verses in the Qur'an. He said that the Respondent's focus on the Appellant's inability to answer certain questions, for example, about Mohammad's dates of birth and death, are not contained in the Qur'an but are matters of historic fact which the Appellant could not be expected to know. He referred also to the letter from the Appellant's representatives following the interview which explained the difficulties with the line of questioning which the Respondent pursued and why that could not lead to a conclusion that the Appellant had never been a Muslim.

9. Mr Sadiq accepted that the Judge had recorded his submission in the Decision about the distinction between a Shia and Sunni at [29] but said that the issue continued to be explored in an inadequate way, with the Presenting Officer continuing to misunderstand the difference between the pillars. As a result, he said, the Judge had similarly misunderstood the Appellant's case.

10. The third ground concerns the documentary evidence. That is to be found at pages [19] to [40] of the Appellant's bundle. Mr Sadiq accepted that the grounds wrongly referred to birth certificates when there were none. However, he directed my attention to the marriage certificates which, as the Judge notes at [41] of the Decision purport to show that the Appellant, her husband and son (AR) are Shia Muslims. He submitted that the Judge failed to take those into account when reaching his adverse credibility findings. Instead, the Judge had reached the finding that the Appellant was not credible at [40] of the Decision before dealing with the documents at [41]. Mr Sadiq also submitted that the Judge was not entitled to reach the conclusion she did, since these documents also go to the credibility of the Appellant's son and he had not been asked about them.

11. In response, Mrs Aboni submitted that the grounds are simply a disagreement with the findings and an attempt to re-argue the appeal. She submitted in summary that the Judge had directed herself appropriately and considered all the evidence.

12. In relation to ground one, she noted that the Judge had referred to having received evidence from both the Appellant's husband and son at [16] of the Decision. She also there noted that the Appellant's son was not cross-examined. Credibility issues were raised in relation to the husband's evidence at [37] of the Decision. However, having found that the Appellant's own evidence was not credible for cogent reasons, the Judge did not need to refer to that evidence. The finding that the Appellant was not credible was open to the Judge.

13. In relation to ground two, she referred to [29] of the Decision and pointed out that the Judge in that paragraph and what followed was not satisfied as to the Appellant's answers for reasons which are there given (see in particular [29] to [32] of the Decision). The Appellant was given every opportunity to explain discrepancies arising from the interview record.

14. Mrs Aboni accepted that it would have been preferable if the Judge had dealt with the documentary evidence before making final findings on credibility. However, she submitted that any error in this regard was not material because the overall findings on the oral evidence were fatal to the Appellant's case. The documents were considered in the overall context of the background evidence in relation to forged and fraudulent documents. The findings were made also in the context of the Appellant having practised deception in the past.

15. Following discussions, both parties agreed that, if I found an error of law, it would be appropriate to remit the appeal as the challenge is to adverse credibility findings.

Discussion and conclusions

16. I deal first with the second of the Appellant's grounds, in part since this was the main thrust of the submissions and in part because it is the starting point for the adverse credibility findings in the Decision. I have considered carefully the line of questioning in the interview record, the letter from the Appellant's representatives and the relevant paragraphs in the reasons for refusal letter.

17. The Judge dealt with this element of the Appellant's case at [29] to [33] of the Decision. Given the importance of this aspect both to the Appellant's case and her challenge to the Decision, I set this out in full below:-

"[29] The RFRL gives reasons at paragraphs 11 to 26 as to why the Respondent does not accept that the Appellant was a Muslim. I do not intend to repeat here all of the arguments and points raised in the RFRL, but I entirely agree with the Respondent's conclusions. At the hearing, Mr Sadiq made the point that the Appellant is a Shia Muslim and not a Sunni Muslim, and that she had been asked questions in the AIR that she would not have been able to answer, either because she would not have known the answer as a Shia Muslim, or because they were technical/historical questions about Islam, rather than questions about her day to day life as a Muslim. I do not accept this. The Appellant is a 65-year-old woman who, on her evidence has been a Shia Muslim up until 2012, when she suddenly converted to Christianity at the age of 61 years old. She makes no mention in her AIR of the difficulties she has in answering the interviewer's questions, on the basis of the differences between the Shia and Sunni faiths. She reports that she read the Qur'an weekly in her Farsi language, and yet she can only name 4 of the 5 pillars of the Shia Islamic faith (F16, qu 69).
[30] At the hearing, the Appellant again struggled to give this information and then the meaning of the 5 pillars of the Shia faith. She was hesitant and it took her a very long time. She had to be asked repeatedly to give the information and in the end she said that she could not remember. It was put to the Appellant that it is unbelievable that any Muslim who has studied the Qur'an and done Hajj would not know the 5 pillars, to which the Appellant responded by saying "you're right but I've forgotten it".
[31] The Appellant has produced a witness statement which rebuts some of the points made by the RFRL, but I find that this was prepared in the main by the Appellant's representatives as it contains many details of the Islamic faith, which the Appellant simply could not comment upon at the hearing. Similarly, at the hearing, it was Mr Sadiq who provided the information regarding the Appellant's Shia faith, and the type of information that she would be expected to know. At no point did the Appellant herself say that she was unable to answer certain questions because of the differences in being a Sunni Muslim to a Shia Muslim. I find that the Appellant was being vague and evasive at the hearing, and this damages her credibility.
[32] In his summing up, Mr Sadiq said that the Appellant should have been asked general questions regarding her faith. In her evidence in chief, Mr Sadiq asked the Appellant if she knew about certain aspects of her faith, such as could she explain the meaning of Ramadan. All of the questions required "yes" or "no" answers and obviously the Appellant said that she could do the 3 things asked of her, but was not actually asked to do so to prove her knowledge. This issue was pursued further in cross-examination, and Mr Dillon extensively explored the issue of the 5 pillars as set out above, and this cross examination proved that the Appellant did not in fact know the answers.
[33] I find that the Appellant had been a practising Muslim for 61 years, she would have been able to answer the questions in the AIR or at the hearing, or, at the very least explain that the Shia Islamic faith differs from the Sunni Islamic faith. I find that this damages the Appellant's credibility."

18. I readily accept based on the evidence at page [47] of the Appellant's bundle the point which is made about the difference between the five pillars of the Shia Islamic faith as opposed to the Sunni faith. The Respondent does appear therefore to have relied in error on the Appellant's inability to answer that question correctly. The difficulty for the Appellant though is that the Judge too appears to have accepted this. Her reasons are, first, that the Appellant named only four of the five pillars in interview ([29]; see question [69] of the interview record). Secondly, the Appellant struggled to answer the question also at the hearing ([30]). Thirdly, the Appellant conceded that she ought to know but had forgotten ([30]). There is therefore no misunderstanding of that issue by the Judge.

19. Dealing with this ground more widely, I see nothing inappropriate about the way in which the questioning proceeded at interview. It appears, for example, that the reason why the interviewer focussed on how Jesus is dealt with in the Islamic faith emerged because of the Appellant's answer that her interest in Christianity arose from her interest in Jesus when reading the Qur'an (see answer to question [85] of the interview). It would therefore be expected that she would be asked more about how that interest had developed and how Jesus was portrayed in the Qur'an.

20. In any event, my main concern is the line of questioning at the hearing and not in the course of the interview. It is evident from what is said at [32] of the Decision in particular that the Appellant was unable to answer even straightforward questions about practice of the Islamic faith. The Judge was entitled to rely on that inability not least because the questions which were put emerged from evidence in chief which were followed up in cross-examination. Those were clearly therefore questions which Mr Sadiq (who also appeared below) considered that the Appellant ought to be able to answer.

21. For those reasons, ground two is not made out. I turn then to consider ground one. I have read the statements of the Appellant's husband and son. The statement of the Appellant's husband confirms that he and his wife were both Muslim before they both converted to Christianity. He confirms that his wife converted whilst in Sweden. That latter point is dealt with by the Judge at [37] of the Decision and disbelieved for the reasons there given. The Judge there does not accept the husband's account.

22. The position in relation to the Appellant's son though is less clear. True it is as Mrs Aboni submitted, that the Judge has recorded that he has received evidence. It is also the case that it is recorded that the Appellant's son was not cross-examined. There are certainly issues and discrepancies arising from the son's successful asylum claim. Although the appeal decision in that claim could not be found, it appears from the papers which were produced, in particular the son's statement, that he obtained asylum on the basis that his father was detained and his mother had escaped Iran four months previously. That statement is dated 21 December 2011. The Appellant's husband says that he has never been arrested or detained and whilst it is true that the Appellant was in Sweden at the time, that was by way of a visit to her other son and not because she had fled Iran. That much is recited at [41] of the Decision and may well give cause to doubt the evidence of the Appellant's son. He had however provided a statement to the effect that, notwithstanding the conversion of his mother, father, sister and brother, he remained a Muslim. It is curious that this was not explored in cross-examination. In any event, the Decision is silent as to whether his evidence is believed.

23. That then brings me on to the documentary evidence which is the focus of ground three. The Judge's findings about the documents are set out at [41] of the Decision. I would not find an error of law simply on account of this paragraph following the Judge's finding that the Appellant has always been a Christian which appears in the preceding paragraph. As Mrs Aboni accepted, it might have been better if the Judge had recorded that evidence prior to the finding at [40] of the Decision. However, the Judge there says that she has considered all the evidence in the round and I also accept that if the remaining findings on credibility are sustainable, the Judge may well have been entitled to reach the conclusion which she did about the documents, particularly since the documentary evidence is limited.

24. The Judge's conclusions about the documents produced also have to be read in the context of what is reported at [34] to [36] of the Decision concerning baptism certificates. On this aspect, the Appellant's evidence was highly unsatisfactory. It was inconsistent as to the existence of those certificates and there were a number of internal discrepancies in that evidence.

25. The only documentary evidence of significance in relation to the Appellant's claim appears at pages [19] and [22] of the Appellant's bundle, being the translations of the Appellant's own marriage certificate and that of her son, AR. The particulars of the dates of birth, marriage, names etc appear consistent with the other evidence. I accept however that the Judge was entitled to take into account the background evidence as to the ease of obtaining forged or fraudulent documents and quite obviously if the forgery was one which was intended to withstand scrutiny, it would be expected that the particulars would be correct. I accept also that it is quite legitimate for the Judge to take into account her views about the credibility of the person or persons producing the documents when considering whether they are genuine.

26. However, I find that the Judge has erred in law when reaching her findings on these documents for the following reasons. First, although the Judge does take into account the background evidence when reaching her conclusion whether the documents are genuine, her only reason for finding that they are not genuine is based on the Appellant's credibility. That reasoning process undermines what is said at [40] about the evidence having been considered in the round and tends to the view that the Judge has reached her finding about credibility without taking the documentary evidence into account.

27. Second, the documentary evidence if not genuine undermines the evidence not only of the Appellant but also of her son to whom one of the documents relates. Whilst, as I have noted at [22] above, there may be some issues about his credibility (or that of the Appellant's husband or both) based on what is said by the Judge at [41] of the Decision, if a sustainable finding was to be reached about the document which relates to the Appellant's son he should at least have been asked about it and given the opportunity to explain. There ought at the very least to have been a finding about the credibility of his evidence and reasons given for disbelieving him.

28. For those reasons, I am satisfied that the Decision discloses an error of law on grounds two and three. I set aside the Decision. Since the sole focus of this appeal is the adverse credibility findings, it is appropriate to remit this appeal to the First-tier Tribunal for redetermination. Although I have found that there is no error in relation to ground one, I do not consider it appropriate to preserve any findings particularly in light of my finding that the documentary evidence has not been taken into account when considering whether the Appellant and her witnesses are credible.

DECISION

I am satisfied that the Decision contains material errors of law. The decision of First-tier Tribunal Judge L.A.L. Paul promulgated on 27 June 2016 is set aside. The appeal is remitted to the First-tier Tribunal for re-hearing before a different Judge.
Signed Dated: 7 February 2017

Upper Tribunal Judge Smith