Tribunal decisions

The decision

IAC-AH-CJ-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/08423/2014

THE IMMIGRATION ACTS

Heard at Liverpool
Decision & Reasons Promulgated
On 22 December 2016
On 30 January 2017

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

Soheib Yaroliahi
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Miss Patel, instructed by Greater Manchester Immigration
For the Respondent: Mr Harrison, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant, Soheib Yaroliahi, was born on 17 August 1986 and is a male citizen of Iran. By a decision dated 3 October 2014 he was refused asylum when a decision also was made to remove the appellant from the United Kingdom. The appellant appealed against the latter decision to the First-tier Tribunal (Judge Heynes) which, in a decision promulgated on 14 July 2016 dismissed the appeal. The appellant now appeals, with permission, to the Upper Tribunal.
2. The appellant claimed to fear persecution in Iran because he was a follower of Erfan-e-Halgeh (hereafter Erfan) a form of faith healing. Both parties accepted that, if the appellant were a genuine follower of Erfan, he would be at risk in Iran. The judge's findings of fact are contained at [20-42]. The judge considered the various items of evidence produced by the appellant indicating the weight which he attached to each item. At [41] he then wrote this:
Taking all the above into account, I make the following findings of fact. The appellant was qualified and employed as he claimed. Because I do not find the circumstances of his release and the appellant's ignorance of any conditions of bail credible, I find the appellant has not proved to the requisite low standard that he was arrested in 2013 in consequence of his involvement with Erfan. Whilst he may well have broken his wrist, this had not occurred as a result of torture by the Iranian authorities. The length of time between his alleged release on bail and his departure and absence of any other evidence on the matter does not suggest that the Iranian authorities or his employers were seeking or had any further interest in the appellant. I found no basis for concluding that the appellant's evidence of his arrest in 2009 is anymore reliable but, in any event, even if it did occur it did not cause him any further difficulties. I do not accept the appellant left Iran illegally because he has had no need to do so. Given that I have not found the appellant to be credible as to the core of his claim, I reject his evidence that his mother and any other relative was an adherent of Erfan. I have taken full account of the documents described above but I find their reliability is undermined by these credibility issues.
3. It is not clear to me what exactly Judge Heynes considered to be the "core" of this appellant's claim. The judge has considered the evidence concerning the appellant's account of having been arrested in 2009 and 2013 and has given reasons for finding that he had not been arrested as he claimed. However, it is apparent that at least part of the "core" of this appellant's claim is that he is a genuine follower of Erfan. The judge has made no clear and unequivocal finding regarding that crucial and central aspect of the claim. Instead, the judge has moved from a rejection of the appellant's account of past events (his arrests) to a rejection of the evidence that the appellant's mother was a follower of Erfan "given that I have not found the appellant to be credible as to the core of his claim ?" It could perhaps be argued that, because the judge had found the appellant was not a reliable witness regarding past events, his claim to be a follower of Erfan could not be accepted in consequence. The problem is the judge does not actually say that. He has not addressed the possibility that the appellant may not have been arrested but is yet a genuine follower of Erfan. It is not enough to infer from the findings that that would inevitably be the judge's belief; the judge needed to make a clear and unequivocal finding on the issue.
4. Further, I understand that a Mr Lucas Bridge gave evidence for the appellant at the hearing before the First-tier Tribunal. I can find no Record of Proceedings in the court file but Mr Harrison, for the respondent, confirmed from his colleague's note that Mr Bridge did attend. The judge did not refer to Mr Bridge in his decision. If the judge did not attach any weight to Mr Bridge's evidence then he should have so indicated and given reasons. I understand that Mr Bridge's evidence may have been relevant to the appellant's claimed sur place activities. Those activities are dismissed by Judge Heynes in a single sentence at [42]: "Whilst the appellant has attended various demonstrations, there is no evidence to suggest that he has put himself at risk by so doing". I am generally reluctant to interfere with a robust fact-finding exercise by a First-tier Tribunal Judge but, given that the appellant had given evidence that his activities "suggest that he had put himself at risk" (and it seems possible that Mr Bridge had done likewise) the judge's analysis is plainly incomplete.
5. It is unfortunate that this matter will once again need to be remitted to the First-tier Tribunal for that Tribunal to carry out a proper fact-finding exercise.
Notice of Decision

The decision of the First-tier Tribunal promulgated on 14 July 2016 is set aside. None of the findings of fact shall stand. The appeal is remitted to the First-tier Tribunal (not Judge Heynes, Judge McClure, Judge Mulvenna) for that Tribunal to remake the decision.

No anonymity direction is made.

Signed Date 20 January 2017

Upper Tribunal Judge Clive Lane

No fee is paid or payable and therefore there can be no fee award.

Signed Date 20 January 2017

Upper Tribunal Judge Clive Lane