Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/08907/2013

THE IMMIGRATION ACTS

Heard at Field House
Decision an Promulgated
On 17th November 2014
On 30th December 2014

Before

DEPUTY UPPER TRIBUNAL JUDGE RIMINGTON

Between

SH
(Anonymity Direction Made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr K Gayle instructed by Elder Rahimi Solicitors.
For the Respondent: Mr E Tufan, Home Office Presenting Officer

DECISION AND REASONS

The Appellant
1. The appellant is a citizen of Iran born on 8th March 1983. She appealed against a decision dated 18th September 2013 to remove her from the United Kingdom following a refusal to grant her asylum, humanitarian protection and protection under the European Convention.
2. On 17th July 2014 Judge of the First Tier Tribunal Herbert OBE refused the appellant's appeal on all grounds. He made an adverse credibility finding against her in particular that she was detained briefly in 2009 at the same time as the journalist and anti government activist Fariba Pajooh. The appellant first came to the UK as a student in 2009 and returned to Iran in 2011, 2012 and 2013. On her last visit to Iran on 2nd June 2013, to see her family, she claims she encountered serious problems and was forced to leave Iran on 2nd September 2013 and travelled to the UK via Turkey. She claimed asylum upon her arrival in the UK because she stated she is perceived by the Iranian authorities as a political activist.
Application for Permission to Appeal
3. The application for permission made by the appellant stated that the judge did not take into account the evidence presented and in particular did not take into account the evidence produced by the appellant to show that she was in detention at the same time as Fariba Pajooh in 2009. The judge had also based his credibility findings on a variety of misconceptions. It was not implausible that the appellant might forget an email address as a computer would repeatedly remember an email address with auto fill. The appellant did not claim to be a serious political activist and the Green Movement was not a formal political movement with a defined structure. The return in August 2013 was the first opportunity the authorities had to arrest her after discovering the link between her and Ms Pajooh despite the fact that she had travelled to Iran before, and the reference to the appellant claiming for the first time in oral evidence that she was blindfolded was erroneous. The appellant had also provided a consistent account with international reports on the conditions of detention. The appellant stated that her uncle, a high ranking official, had assisted her exit from Iran through using bribes. This had not been addressed by the judge. The judge criticised the appellant on the basis that her parents were able to send her a summons despite having attracted the unwarranted attention of the authorities which he did not think was credible. However corroboration was often expected and this was why the parents, despite the risk, sent the material. The judge placed an unreasonable burden on the appellant expecting her to produce material from Yahoo.
4. An initial application for permission to appeal was presented to the First Tier Tribunal and dismissed as merely a disagreement with the determination. A renewed application for permission to appeal was granted by Upper Tribunal Judge Chalkley on the ground that the judge's negative credibility findings were arguably inadequately reasoned. The renewed application submitted that there was a failure to apply the appropriate standard of proof in his reference to 'plausibility'.
5. At the hearing, Mr Tufan submitted that the Judge had dealt with the documentation and that there was no error of law save that he acknowledged that there was force in the argument that the judge had missed the references to being blindfolded in the prison. The appellant's claimed stay in prison was a total fabrication. The judge did not merely adopt the previous findings of Judge Brenells whose determination had also been set aside for an error of law.
6. I find that Judge Herbert did not appear to engage with the documentation fully. He cites at the start of the determination the objective reports which document the widespread use of torture, arbitrary arrest and false imprisonment particularly for those suspected of being a threat to national security in 'any shape or form'. He also recorded that the government was increasingly targeting journalists, academics, opposition politicians and activists including women's right activists.
7. The judge, however, proceeded to reject the appellant's claim on the basis that she could not have met the celebrated journalist Fariba Pajooh in 2009 because the journalist was not detained until August of that year. This is central to her account. The judge does not address the evidence produced by the appellant in relation to claimed earlier detention of Fariba Pajooh and relies only on the objective material. He makes no reference to the appellant's evidence. (Judge Brenells did give reasons for rejecting her evidence in this regard but his determination was previously set aside). It was incumbent upon the judge, bearing in mind he considered this to be a 'compelling discrepancy' and central to the rejection of the claim, to deal with the evidence the appellant produced. In assessing her credibility the judge also did not accept that the appellant would forget the email address of Fariba Pajooh but did not take into account the concept of automatic refill.
8. The judge based his rejection on the appellant's account that she was of interest on the fact that she had travelled to and from Iran without problem since 2009. At submitted by Mr Gayle the judge makes no mention of the fact that the appellant claims, as recorded in her asylum interview to have met Fariba Pajooh in 2013 and claimed to have emailed her in June 2013 [AIR 21]. Nor did the judge address the issue of the uncle who bribed and facilitated her exit from Iran.
9. The judge, although he referred to the issue, did not deal with the appellant's account of why the parental house was not searched, that is that she had lived elsewhere. He further placed emphasis on her inability to describe Evin Prison stating that 'she mentioned in the first time in oral evidence that she was blindfolded and makes no mention of this quite important details when during her asylum interview'. In fact at AIR 168 the appellant does make reference when in Evin Prison to moving with her 'eyes closed'. It was also pointed out that the reports indicate that prison conditions do not necessarily breach Article 3 and therefore it was not a foregone conclusion that the appellant would have been ill treated in prison.
10. The judge acknowledged that the appellant was depressed but rejected her account that it simply had not crossed her mind to obtain evidence from Yahoo in relation to her account. Finally the witness who did give evidence at court was simply dismissed as he did not witness any of the appellant's account directly. Their evidence was not assessed.
11. I find that there were errors of law in the determination, which affected the credibility findings with respect to the appellant and these in turn run to the heart of the appeal. I preserve none of the findings.
12. Bearing in mind that the appellant has now been put on notice to obtain information from Yahoo, the details and exchanges on her email account dating back to the start of 2013 should be obtained.
13. The Judge erred materially for the reasons identified. I set aside the decision pursuant to Section 12(2)(a) of the Tribunals Courts and Enforcement Act 2007 (TCE 2007). Bearing in mind the nature and extent of the findings to be made the matter should be remitted to the First-tier Tribunal under section 12(2) (b) (i) of the TCE 2007 and further to 7.2 (b) of the Presidential Practice Statement.

Signed Date 30th December 2014

Deputy Upper Tribunal Judge Rimington