Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/08781/2014

THE IMMIGRATION ACTS

Heard at City Centre Tower, Birmingham
Decision & Reasons Promulgated
On 9th January 2017
On 25th January 2017

Before

DEPUTY upper tribunal JUDGE RENTON

Between

NAJIBULLAH WALIKHEIL
(ANONYMITY DIRECTION NOT MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr M Sarwar of the Birmingham Law Practice
For the Respondent: Mr D Mills, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction
1. The Appellant is a male citizen of Afghanistan born on 13th May 1994. The Appellant entered the UK illegally on 25th March 2009 and applied for asylum that day. That application was refused but the Appellant was granted a period of discretionary leave on the basis of his then age. He made a subsequent application for leave to remain and that application was refused on 10th October 2014 for the reasons given in the Respondent's Notice of Decision of that date. The Appellant appealed, and his appeal was heard by Judge of the First-tier Tribunal Ford (the Judge) sitting at Birmingham on 16th August 2016. She decided to dismiss the appeal for the reasons given in her Decision dated 30th August 2016. The Appellant sought leave to appeal that decision, and on 27th September 2016 such permission was granted.
2. Error of Law
I must first decide if the decision of the Judge contained an error on a point of law so that it should be set aside.
The Judge dismissed the appeal because she found the Appellant to be lacking in credibility and did not believe most of his account of his experiences in Afghanistan. One of a number of reasons for that conclusion given by the Judge was that the Appellant was inconsistent in stating in his most recent statement that his father was dead, whereas earlier the Appellant had only claimed that his father had been kidnapped by the Taliban. At the hearing, Mr Sarwar argued that the Judge had erred in law in this respect. Permission to appeal had been granted on a single ground being that there had been an error by the Appellant's then representatives in preparing his most recent statement as the Appellant had never claimed that his father was dead.
Mr Sarwar submitted that the Judge had erred in law by relying upon this apparent discrepancy in order to find the Appellant lacking in credibility. This was clear from what the Judge wrote at paragraph 34 of her Decision. The Judge had not been aware of the mistake by the representatives, but it was explained in the documents annexed to the grounds of application. The Appellant had assumed that his statement would be corrected by his representatives when he had brought the mistake to their attention prior to the hearing. At paragraph 46 of the Decision, the Judge had described the mistake as an embellishment to the Appellant's evidence and it was apparent that the mistake had infected the Judge's view of the Appellant's credibility. The error was material because this factor could not be viewed in isolation.
In response, Mr Mills referred to the Rule 24 response and acknowledged that there may have been a mistake of fact in the Appellant's statement which he had tried to correct. However, it was accepted that the Judge had not been made aware of the mistake, and therefore her reliance upon it could not amount to an error of law. The Judge had to decide the appeal on the evidence before her taken at its face value. Further, there was nothing from the Appellant's previous representatives, a reputable firm of solicitors, that such a mistake had been made. In any event, any such error of law was not material as the Judge had given a number of other significant reasons for finding the Appellant and his witness lacking in credibility.
I find no error of law in the decision of the Judge which therefore I do not set aside. Even if it is the case that the Judge relied to some extent on an error of fact in the statement of the Appellant drawn by his previous representatives, it is common ground that the Judge was not made aware of the error and therefore it cannot be an error of law for the Judge to rely in part on the mistake when making her finding as to credibility. As Mr Mills argued, the Judge had to decide the appeal upon the evidence before her and it was not for her to go behind any written statement made by the Appellant. It is to be noted that the Appellant was represented at the hearing by Counsel and therefore had ample opportunity then to correct any errors in his statement. In any event, if there was a mistake of fact in the way claimed, it did not amount to a material error of law as the Judge gave examples of a number of other inconsistencies in the Appellant's evidence and also that of his witness Mr Ferozi. The Judge's finding as to credibility cannot be impeached because of one unintentional error of fact relied upon by the Judge.

Notice of Decision
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
I do not set aside that decision.
The appeal to the Upper Tribunal is dismissed.

Anonymity

The First-tier Tribunal did not make an order for anonymity. I was not asked to do so, and indeed find no reason to do so.

Signed Date 25/01/2017

Deputy Upper Tribunal Judge Renton