Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/09210/2015

THE IMMIGRATION ACTS

Heard in Liverpool
Determination Promulgated
On Tuesday 17 January 2017
On Friday 20 January 2017

Before

UPPER TRIBUNAL JUDGE SMITH

Between

E H K
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Miss Evans, Counsel instructed by Waddell, Taylor Bryan solicitors
For the Respondent: Mr Harrison, Senior Home Office Presenting Officer

Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
An anonymity order was made by the First-tier Tribunal. As this is a protection claim, it is appropriate to make an anonymity direction in this case.

ERROR OF LAW DECISION AND REASONS

Background

1. The Appellant appeals against a decision of First-Tier Tribunal Judge M A Khan promulgated on 19 July 2016 ("the Decision") dismissing the Appellant's appeal against the Secretary of State's decision dated 13 May 2015 refusing his protection claim.

2. The Appellant is a citizen of Iran. He arrived in the UK via Turkey, he claims on 28 November 2014. His protection claim centres around events which he says occurred on 17 November 2014 when he was working as a taxi driver in Iran. He says that one of his passengers was stabbed to death in his cab. He says that he fears that the authorities will blame him for the crime.

3. The Appellant's appeal was dismissed on the basis that the Judge found his claim to be entirely fabricated. The Appellant challenges the Decision on two grounds. The first concerns the inconsistencies relied upon for the credibility finding. The second concerns the application of section 8 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 ("section 8"). Permission was granted by Upper Tribunal Judge Kopieczek on 1 September 2016, principally on ground two but also because the findings in relation to section 8 may arguably have infected the remainder of the credibility findings. 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.

Discussion

Ground one

4. The first of the Appellant's grounds concerns the Judge's findings at [28] to [30] of the Decision. Miss Evans explained that this ground was not simply based on the application of section 8 and the potential impact on the credibility findings of what is said at [27] of the Decision but rather is a self-standing ground based on what she said is a misunderstanding of the Appellant's evidence in relation to the inconsistencies alleged.

5. Miss Evans first directed my attention to [28] of the Decision where the Judge sets out what he understands to be the inconsistencies and the explanation which the Appellant gives for those. That reads as follows:-

"[28] In evidence before me, the appellant was extremely vague and evasive as to the event of 17/11/2014. He has made contradictory and inconsistent statement in his screening interview, the substantive asylum interview, his previous solicitors two letters seeking to amend his answers in the interview. The appellant seeks now to distance himself from what was stated in the solicitor's letters of 07/04/2015 and 0/05/2015. In their letter of 07/04/2015, the appellant's previous solicitors, Broudie Jackson Canter stated that in reply to question 4.2 in the screening interview, the appellant seeks to state that 'three people armed with knives came out, one of them sat in the front of the car and took the car keys from him and they pulled the passenger ut and told the second passenger to flee'. In his evidence, the appellant said that he did not know if this letter was going to be sent to the Home Office. He said that his passenger who got out of his car was chased by the two men and he was not told to flee."

6. Miss Evans readily accepted that the Judge was entitled to take into account the inconsistency. She also readily accepted that there was an inconsistency as recorded between the content of the solicitor's letter dated 7 April 2015 and the Appellant's evidence elsewhere. However, she drew my attention to [19] to [23] of the Appellant's witness statement which explains the background to the writing of that letter. In essence, the Appellant says that he considered that what was recorded in his screening interview was misunderstood and he had wished to correct that. However, he says that at the meeting he had to discuss this misunderstanding, his legal representative was not present. He met only with the interpreter and a lady who he had not met before who typed as he was asked questions. He says that he did not know that what she was writing was a letter to be sent to the Home Office, that the letter was not read back to him and he could not read it himself. He had not therefore checked the content.

7. The Appellant's version of events in relation to that letter is borne out at least to some extent by the following evidence. Firstly, in the course of his substantive asylum interview, the Appellant was asked about an assertion in the letter of 7 April that PJAK (referred to in the letter as "Pejak") are Turkish Freedom Fighters with whom the Appellant or his family were involved. The Appellant denied those assertions. The interviewer continued:-

"[Q103] One would expect your legal reps to take more care if they are sending alterations and different details about your account, I suggest you complain to them strongly. So to be clear, you never told your legal reps that Pejak are Turkish Freedom Fighters?"

Secondly, and of more importance is the concession in the letter from the Appellant's previous solicitors dated 8 May 2015 as follows:-

"We confirm that there were some difficulty in reading the Screening interview back to our client in his language. As a result some confusion occurred that were reflected in our previous letter of further representation. For instance, our client did suggest that PEJAK was an Iranian and not Turkish opposition group that had agents and members on the Iranian borders to both Turkey and Iraq. This was not covered completely. We apologise for the confusion."

In response to a question from me, Miss Evans confirmed (so far as she was able without breaching legal professional privilege) that a complaint had been made against the Appellant's previous solicitors and that those instructing her had received a referral on the basis that the previous solicitors were conflicted.

8. Miss Evans pointed out that none of the above evidence in relation to the inconsistency was taken into account. All that is recorded is that the Appellant did not know that the letter was to be sent. In fact, his evidence was that he did not know it was a letter at all nor what it contained. Further, the evidence that this particular inconsistency arose as the Appellant says needed to be taken into account. It was not. The impression was also given at [28] that the Appellant had changed his position at the hearing in relation to the solicitor's letters. In fact, he had asserted from the time of his substantive interview that the information in the 7 April letter was incorrect and he had never sought to distance himself from the 8 May letter.

9. I am satisfied for those reasons that the Judge has made an error of law in misunderstanding and/or failing to give reasons for disbelieving the Appellant's account as to the inconsistency. That inconsistency is the foundation for the adverse credibility findings in relation to the Appellant's account.

Ground two

10. Ground two concerns the Judge's application of section 8 to the Appellant's case. Miss Evans drew my attention first to what is said in the Respondent's reasons for refusal letter about section 8. That reads as follows:-

"In determining your asylum and human rights claim, consideration has been given to section 8 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 and the Court of Appeal case of JT Cameroon v Secretary of State for the Home Department [2008] EWCA Civ 878 (28 July 2008) which provided that a deciding authority shall take account of the following behaviour, as potentially damaging to your credibility.
It is noted that your claims to the incident in November 2014 and the police wanting you in connection to this have been rejected. Your claim that the police believe you are a member of PJAK have also been rejected. It is considered that those were fabricated in order to mislead or conceal information, and to obstruct or delay the handling and resolution of your case. This engages Section 8(2)(a)-(c) of the Act."

11. Miss Evans criticised that passage as failing to set out in the first paragraph what behaviour was said to be damaging. That, it seems to me, is clear from what follows. Of more substance is her challenge to the reason given for applying section 8. The argument that the claim is disbelieved and that therefore section 8 is applied is a circular one.

12. This though is not an appeal directly against the Respondent's decision. The question for me is what the Judge made of that part of the Respondent's decision. That leads on then to a consideration of what is said at [27] of the Decision which was the principal reason for the grant of permission to appeal. The Judge there deals with section 8 as follows:-

"The respondent raises a number of credibility issues against the appellant including Section 8 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004. The appellant claim is related to the incident in November 2014 and the police in Iran wanting him in connection with is rejected by the respondent. The respondent considers that the appellant has fabricated his claim in order to mislead or conceal information, and obstruct or delay the handling and resolution of his case. I do not accept this as a credible or a consistent statement. The respondent states that Section 8(2) of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 is engaged in this case. The appellant's credibility is seriously damaged."

13. Miss Evans submitted that the Judge's finding and reasoning is there unclear. I accept her submission that it is ambiguous. It is not clear whether the Judge is there recording the Respondent's decision but rejecting the application of section 8 or accepting that section 8 applies and damages the Appellant's credibility in which case his reasons for doing so are lacking. Mr Harrison was prepared to go one step further and described this paragraph as "incoherent". He indicated that on this basis alone he was prepared to concede that there is an error of law in the Decision. That is material because, on one reading, the Judge has found against the Appellant by applying section 8 and this infects the remainder of the credibility findings. I have already, in any event, found at [9] above that there is a separate error in relation to those findings.

14. Both representatives were agreed that, if I found a material error of law, I should remit the appeal to the First-tier Tribunal. The challenge is to the Judge's adverse credibility findings.

DECISION
I am satisfied that the Decision contains a material error of law for the reasons given above. The decision of Judge M A Khan promulgated on 19 July 2016 is set aside. I remit the appeal to the First-tier Tribunal for re-hearing before a Judge other than Judge M A Khan. I do not preserve any findings.

Signed Dated: 19 January 2017

Upper Tribunal Judge Smith