Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/07433/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Decision & Reasons Promulgated
on 25 January 2017
on 10 February 2017

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

CHALAK PIROT MEHMUDI
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant Mr J Bryce, Advocate, instructed by Latta & Co, Solicitors
For the Respondent Mr J Komorowski, Advocate, instructed by the Office of the Advocate General

DETERMINATION AND REASONS
1. The appellant claimed asylum, identifying himself as a Kurdish citizen of Iran. He said that he made his living for several years by smuggling alcohol over the border from Iraq. The Iranian authorities attacked his smuggling group at night near the border. He escaped (eventually making his way to the UK). The authorities searched his home. He suspects they had been tipped off by an informer. Some years previously, a friend had taken his photograph with American soldiers. He kept a print of this photograph at home with his identification documents. The authorities found the photograph during their search, and told his father that the appellant was therefore suspected of being an American spy.
2. The appellant has accepted that any proceedings against him for smuggling would amount to prosecution and not to persecution. His claim turns on the assertion that the Iranian authorities believe him to be a spy for the Americans.
3. As part of the asylum process, the appellant took part in a telephone interview leading to a language analysis and a report by Sprakab.
4. The respondent refused the claim for reasons explained in a letter dated 17 April 2015. The letter examines the appellant's claimed nationality and says that based on "several inconsistencies" in his answers taken together with the "overwhelmingly conclusive summary made during your language analysis" he is considered to be a national of Iraq not Iran (paragraphs 10 - 19).
5. The appellant's account was found vague, self-contradictory and less than credible for further reasons: he declined at several points of his interview to name the persons with whom he dealt when smuggling, although he was reassured that such information would not be divulged; he said the authorities found out about his smuggling activities from a former colleague who made a deal with them, claiming 100% certainty, but then gave a vague and unsubstantiated account of how this came about; he contradicted himself over whether the attack took place in Iraq or in Iran, and over whether the attackers were unknown, or were the authorities; he gave an incoherent account of the incident itself; he claimed that his father was detained for 2 to 3 days, but gave vague and inconsistent details; he said that a family member would be detained until the wanted person surrendered, which was inconsistent with a 2 to 3 day detention; he claimed that his father was released on disowning the appellant and agreeing to provide details of his whereabouts, and was still in regular contact with his father, but gave no evidence of the authorities having done anything to him; he was unable to explain the circumstances under which the photograph was taken, or why he been in the area at that time, before he began smuggling; and his travel through several other countries before seeking asylum was damaging to his credibility under section 8 (4) of the 2004 Act.
6. The appellant appealed to the First-tier Tribunal. Designated Judge Murray dismissed his appeal by a decision promulgated on 19 November 2015.
7. The FTT and the Upper Tribunal refused permission to appeal.
8. The appellant raised a petition to the Court of Session, seeking to reduce the UT's refusal of permission.
The grounds of appeal to the UT.
9. Parties by joint minute in the Court accepted that the grounds arguably disclosed material errors of law, as follows: -
1: the FTT erred in law by failing to have regard to relevant matters, specifically (a) an expert report of Prof Patrick and (b) the appellant's own comments on the Sprakab report.
2: the FTT erred in law by failing critically to examine the Sprakab report for itself.
3: no weight should have been attached to the Sprakab report, in respect that no relevant expertise was demonstrated.
4: no weight should have been attached to the Sprakab report, in respect that it was inadequately supported by reasoning, both in general and specifically in relation to the geographical range of the dialect or usage in question.
10. On 19 September 2016 the Vice President of the UT granted permission, in light of the contents of the joint minute.
11. On 2 November 2016 representatives agreed to provide notes of their updated position on the resolution of the case.
Note of appellant's position.
12. The appellant adopts the critique of the Sprakab report detailed in the extended grounds of appeal [on which the UT initially refused permission]. The note then examines the tribunal's "non-Sprakab reasons for rejecting the appellant's credibility", and submits that on analysis these all "melt away", so that it cannot be said that the Sprakab report played no significant part in the judge's reasoning.
Note of SSHD's position.
13. Ground 1: the FTT should be presumed to have considered all evidence led before it, and the decision demonstrates on its face consideration of the report by Professor Patrick; a detailed summary of the author's views is at paragraphs 33 and 34.
14. Ground 2: there is no basis on which to conclude that the tribunal did not critically examine the Sprakab report for itself, or presume it to be reliable; rather, having considered all material, including both reports, the judge decided that she was "giving some weight to the Sprakab report".
15. Grounds 3 and 4 are in substance irrationality challenges, "if indeed they raise a point of law at all", and could only succeed if no reasonable tribunal could have regard the authors of the Sprakab report as having relevant expertise, or if no reasonable tribunal could have attributed any weight to the report. The criticisms made by Prof Patrick of the expertise of those involved in the Sprakab report did not differ materially from criticisms rejected by the Court of Appeal in RM (Sierra Leone) v SSHD [2015] EWCA Civ 41, paragraphs 50 - 56. The judge was entitled to give the Sprakab report "some weight", alongside substantial problems found with the credibility of the appellant's account, and there was nothing irrational in her using the report to this limited extent.
16. Materiality: the tribunal gave separate consideration to the appellant's account and disbelieved various aspects, finding discrepancies and credibility issues going to the core of the account, separately from the Sprakab report, such that the same conclusion would have been reached in any event. The grounds of appeal did not attack these findings.
Submissions for appellant.
17. Ground 3 was not insisted upon (although the appellant's position was reserved, as to submitting that no weight could be given to the Sprakab report, if there were to be a rehearing or any other further proceedings).
18. In respect of the Sprakab and Patrick reports, there were three failures to engage with particular aspects of conflicting opinion, which demonstrated error of law.
19. As to materiality, the arguments in the note show that there was nothing in the rest of the judge's reasoning. It appeared that having taken the Sprakab report to be of near-decisive significance she had fallen into a sense of "false security", so that there was no rigorous analysis of the other evidence.
Submissions for SSHD.
20. An appeal lies only on points of law and was not open by way of re-analysis of the detailed merits of the two reports. The appellant stopped short of the allegation that it was irrational to give the Sprakab report any weight, and failed to demonstrate that the judge had not dealt appropriately with all relevant aspects of the evidence. The Sprakab report did not lead the judge into a false sense of security in respect of the rest of the evidence, as she plainly gave it only some weight. That submission for the appellant read into the decision an approach which was not there. The nature and extent of reasoning required of a judge depends on the context of the appeal. There is no need to set out and analyse every detail of any item of evidence. There was significant examination of the evidence, not only of the report. The much plainer reading was that the report played only a subsidiary role in the outcome. The appellant complained that the judge did not deal with his "bull point", derived from the report by Prof Patrick, that he speaks a dialect common to both sides of a border which is national but not linguistic; however, that was clearly noted, in particular at paragraphs 33 to 35, before the judge turned to her reasons. The first reason she gave went to the core of the account, the photograph, and had nothing to do with Sprakab. There then followed several other points, all valid, and only thereafter did she turn to the linguistic reports. At paragraph 48, the judge returned to her core reason, the photograph. Thus the judge began with the central point, noted some lesser issues, interposed some weight to the Sprakab report, and returned to the central point. In that context, there was no need for her to have dealt with every specific criticism raised of the Sprakab report, and no error of law.
21. Even if the tribunal did consider that there had been an error, it had not been shown to be material. The same points were relevant in that context. The judge's analysis was sufficient to justify the failure of the appeal, eliminating any issue over Sprakab.
Discussion and conclusions.
22. The outcome depends on the resolution of the competing submissions on the degree of importance given to the Sprakab report, and the strength of the rest of the reasoning, so I turn to the specific arguments on each point.
23. The Sprakab report says that with a very high degree of certainty the appellant's background is Iraq, and very unlikely to be Iran.
24. The refusal letter reaches a conclusion on nationality based on that report, but it also evaluates the appellant's claims as less than credible for other reasons. The presenting officer in the FtT took a similar line on the report and on other issues, and attacked the account about the photograph, in particular, as a key matter (paragraphs 25-27).
25. The appellant's solicitor in the FtT relied upon the report by Professor Patrick, which is scathing towards the Sprakab report, especially on the border aspect. The appellant was said to have given a "reasonable explanation" about the photograph, and it was emphasised that the Iranians do accuse people of spying for the Americans, the penalty being execution.
26. The judge states at paragraph 42 that there are credibility issues with the appellant's evidence, and turns immediately to the photograph. She accepts that he might have wanted a photograph with American soldiers but does not find it credible that the friend who took the photograph (on a phone) would have gone to the effort of printing it out and giving it to the appellant, or that the appellant would keep such a photograph at home. Not only did the appellant say that was so, he then said that although his original evidence was that his friend could not get another copy because it had been wiped from his phone, his friend then found the photograph on a photo-card and emailed it to another friend in the UK, who printed it out again. The appellant said he was present but was unable to give the tribunal any description of how that was done.
27. The appellant's position on this is that the judge gives no reason for the perception of implausibility, and the danger of rejection on such grounds is "well-trodden in the case law".
28. Mr Komorowski submitted that the implausibility was clear. The appellant said he was an active cross-border smuggler, making his living from an activity which put him at risk of searches and of imprisonment. If he were Iranian he would know of the strong antipathy of the Iranian authorities towards the USA, yet allegedly he engaged in the folly of having such a photograph printed and kept for years at his home, beside his identity documents. It was patent why the judge would think that episode implausible, and by itself that might been sufficient to justify dismissing the appeal.
29. On this issue, I prefer the submissions for the SSHD.
30. A bald statement that an account is implausible is of course usually insufficient; the need for caution is well known; the highly unlikely may nevertheless be true; other cultures behave in different ways; and repressive and authoritarian regimes are unpredictable. But the judge's reasoning in this case is more than a bald statement; there is no obligation to accept what is inherently unlikely; and it has not been advanced that a smuggler in the border area between Iraq and Iran does not usually act with ordinary caution, or is for cultural or any other reasons likely to place himself at foolish and unnecessary risk. The general truisms of approach do not show any error here.
31. Issues regarding at the photograph were raised in the refusal letter, and were explored further through evidence and submissions at the hearing. The judge does not just say the account is implausible, she details a series of unlikely explanations and the appellant's less than impressive performance when giving evidence. An area of difficulty for the appellant became even worse.
32. Caution should be exercised over supporting conclusions by reasons not explicitly stated in a decision; but the submissions for the SSHD in this respect were not probing for new reasons, they were statements of the obvious.
33. The judge turned at paragraph 43 to agreeing with the respondent that details of the people from whom he purchased alcohol were provided "only to bolster this case". The appellant says that is the only reason evidence is provided, and that the appellant offered an explanation. However, the explanation added little or no value to the appellant's case, because he was reassured in the first place that information would not be divulged. I uphold the submission that the judge was entitled to take this as a point which hindered rather than helped the appellant.
34. Also at paragraph 43, the judge says that she does not accept the story of the smugglers, including the appellant, being exposed by an informant, because it was supposition. The appellant's criticism is that it was unreasonable to hold it against the appellant that he made any more of his supposition than he did. That is correct as far as it goes, but it does not show that the judge might not sensibly see this as a weak point in the appellant's account.
35. Similar considerations apply to the doubts over the attack on the appellant and other smugglers; this is a stronger point against the appellant, because there were apparent weaknesses and contradictions arising from the interview. The evolution of the story might reasonably be taken to suggest embellishment rather than recall.
36. The judge noted a discrepancy over the appellant saying that his father was detained, and being in telephone contact with him. The appellant says that on scrutiny of the evidence there is no discrepancy, and the judge misread the evidence. However, Mr Komorowski identified that by the appellant's account at the time of one of the alleged telephone calls his father must have been in detention. Again, this was a point tending to help rather than hinder the appellant's account.
37. At paragraph 44 the judge returned to the photograph, on another aspect, noting a change in the appellant's evidence to say that it was taken after he started smuggling, in order to deal with his inability to explain otherwise why he had been in the area at the time. There is nothing in the appellant's submissions which detracts from this reasoning.
38. The judge is also criticised for finding it implausible, without saying why, that the appellant could raise $8000 in cash to pay his agent; but this is another point which required no further specific explanation. The judge was unimpressed by the answer, "I had been working and I had money"; that was a detail, or lack of detail, which she was entitled to find an indication that she was being told less than the truth.
39. When she comes to deal with the Sprakab report the judge again notes its conclusion expressed to a very high degree of certainty, but notes also the criticisms made and that an expert says that little weight should be given to the report. She does not go into the minutiae of those criticisms but she has found some substance in them, because she does not share the certainty of the report itself or its outright acceptance by the respondent: she says only that she is giving it some weight. I cannot uphold the argument that she thought the Sprakab report in effect decisive and gave no proper attention to other issues. It does not reflect the structure or the wording of the decision. As noted above, the judge records the respective submissions on the report, begins her reasoning explicitly before taking it into account, and finds discrepancies on credibility issues which go to the core (paragraph 43-44). She turns to other issues, of lesser weight but adverse to the appellant. She then goes to the report, notes the very high degree of certainty claimed, notes also that the countervailing expert says it merits little weight, and gives it "some weight" (paragraph 48). She thereafter explicitly dismisses the appeal because she rejects the finding of a photograph in the house by the Iranian authorities (paragraphs 49 and 50). Even although the report has been found to bear "some weight", the same conclusion would have been reached, based on reasons which have nothing to do with it, and which have not been skimped through over-reliance upon it.
40. For these reasons, I find that the judge made no error through her approach to the Sprakab report; and that even if there was any error, it was not material.
41. The determination of the First-tier Tribunal shall stand.
42. No anonymity direction has been requested or made.

9 February 2017
Upper Tribunal Judge Macleman