Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10041/2014

THE IMMIGRATION ACTS

Heard at Bennett House, Stoke
Decision Promulgated
On 6th September 2016
On 13th October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE GARRATT

Between

SG
(ANONYMITY DIRECTION MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr B Bedford of Counsel instructed by Freedom Solicitors
For the Respondent: Mr C Bates, Senior Home Office Presenting Officer

DECISION AND DIRECTIONS

1. In a renewed application for leave to appeal, Upper Tribunal Judge Bruce gave permission to the appellant to appeal against the decision of Judge of the First-tier Tribunal Ransley in which she dismissed the appeal on all grounds against the decision of the respondent to refuse asylum, humanitarian and human rights protection to the appellant, a female citizen of Iran.
2. Upper Tribunal Judge Bruce gave permission stating that it was arguable that the First-tier Tribunal had failed to consider post-country guidance evidence on risk on return to Iran for failed asylum seekers. Permission was, however, granted on all grounds.
3. The original grounds of application, which were relied upon before the Upper Tribunal, contended that the judge had not considered all the evidence before her in relation to the appellant's fear of severe punishment for not conforming to Islamic standards of female dress, that the judge failed to consider the appellant's vulnerability and mental health when considering credibility and failed to adequately analyse and give reasons for the conclusion that the appellant had not shown that she had committed herself to Christianity. It was also contended that the judge had failed to consider risk on return for the appellant as a failed asylum seeker who had left Iran illegally.
4. Mr Bedford indicated to me that reliance was no longer placed upon the alleged failure to consider post-country guidance evidence on risk on return. On the basis that permission had been granted on all grounds, he relied upon an alleged failure by the judge to consider the credibility of the appellant adequately taking account of medical evidence. He also contended that the appellant's claimed failure to follow Islamic modes of dress pointed to a restriction on conscience which would require consideration following the guidance set out in HJ (Iran) [2010] UKSC 31.
5. Mr Bedford thought that the conclusion that the appellant had not told the truth about her claim to have been ill-treated and raped by two male police officers, did not take into consideration the background material which is referred to in paragraph 8 of the original grounds about the strict enforcement of the Islamic dress code for women. He drew my attention to the medical evidence commencing on page 21 of the appellant's original trial bundle (marked App Bundle A1) which had referred to the appellant's complaint of sexual assault or rape and attempted suicide and diagnosed PTSD. He fairly conceded that one of the medical documents he was referring to was simply a patient record, and the evidence had not been incorporated into a medical report by an expert. He then referred me to the other medical records asserting that the judge should have been alert to all the matters raised in those documents. He then made reference to cases before the ECHR which, he contended, suggested that the respondent should have obtained further evidence of her own volition to displace the appellant's prima facie case of suffering harm and medical problems.
6. The first case to which I was referred is JK and Others v Sweden (Application Number 59166/12) at paragraphs 51 and 52 which suggests a requirement for a contracting state to assess asylum claims adequately and with sufficient supporting evidence and objective sources. He also referred to the case of M.A. v Switzerland (Application Number 52589/13) at paragraph 55 which indicates that, owing to the special situation in which asylum seekers often find themselves, it is frequently necessary to give them the benefit of the doubt when it comes to assessing credibility. The same paragraph goes on to say that, when information is presented which gives strong reasons to question the veracity of an asylum seeker's submissions, the individual must provide a satisfactory explanation for the alleged discrepancies. Mr Bedford emphasised that the decision also suggests that where the asylum seeker adduces evidence capable of showing there are substantial grounds for believing that they would be exposed to real risk on return it is for the "government" to dispel any doubts about it.
7. Finally, in relation to credibility issues, Mr Bedford submitted that the judge had failed to take into consideration that the discrepancies in evidence relating to the sex of the police officers who arrested the appellant wrongly drew upon information given in screening interview and so should not have counted against her.
8. Mr Bates drew my attention to paragraph 24, where the judge refers to background evidence relating to the Islamic dress code for women, and the judge's adoption of this information as a further reason for rejecting the appellant's claim to have suffered any sanctions for her breaches of the dress code whilst at university. He pointed out that the appellant may have suffered harassment but that would not have amounted to persecution.
9. As to the appellant's claims about her conversion to Christianity, my attention was drawn to paragraphs 40 and 41 of the decision setting out the respondent's views on this additional ground of appeal. He submitted that the judge's conclusions in paragraph 47 meant that she was not satisfied that the appellant had, actually, changed her faith.
10. Mr Bates also commented on the judge's consideration of the medical evidence. He emphasised that no expert medical report had been submitted. In paragraphs 52 to 60 the judge had given adequate reasons for concluding that there was no qualified diagnosis of PTSD for the appellant. He considered the judge's approach to the limited medical evidence as reasonable.
11. In relation to the argument that the judge should not have taken into consideration the appellant's responses in screening interview, Mr Bates pointed out that the judge had given good reasons for her action reaching findings which were open to her. He also reminded me that there were other inconsistencies found in the evidence such as those identified in paragraphs 32 and 33 relating to the alleged sexual assault upon her.
12. In conclusion Mr Bedford argued that there was country guidance in the appellant's main bundle to show that wearing of the hijab was mandatory and evidence to suggest the use of sexual torture by the authorities. This supported the appellant's claims. In relation to the appellant's faith he contended that the appellant was no longer a Muslim and so would display her lack of faith on return.
Conclusions
13. It is unnecessary for me to consider, as a discrete issue, the contention, found in the Upper Tribunal grant of permission, that the judge failed to address post-country guidance evidence on risk on return to Iran for failed asylum seekers. That point is not pursued by Mr Bedford. However, as I indicate below, such consideration may be necessary when this appeal is re-made for the reasons I give, below.
14. The criticisms of the judge's credibility findings on the basis that they are inadequately reasoned appears without foundation. The decision, as a whole, is comprehensive, thoughtful and carefully reasoned in its rejection of the claims to have been arrested, ill-treated and to have converted to Christianity in this country. But the decision does not show that the judge considered the claims in the light of the limited medical evidence made available. This evidence suggested (in correspondence from Gail Ashton) that the appellant had presented with symptoms of Post-traumatic Stress Disorder and stated she had been referred for cognitive behaviour therapy. Whilst the medical evidence is not in the form of a medical report and is considered by the judge in conjunction with the Article 8 claim, that was an inadequate approach to consideration of the credibility of the claims. It was incumbent upon the judge to consider and reach conclusions about that medical evidence when examining the credibility of the main claims. The fact that the limited medical evidence did not persuade the judge to conclude that the appellant's Article 8 rights would be infringed if she were to be returned did not mean that such evidence would have no relevance to the appellant's other claims. Guidance such as that set out in JL (Medical reports - credibility) China [2013] UKUT 00145 (IAC) needed to be followed. This was clearly not done and it cannot be said that if the judge had done so, the appellant's claimed mental condition would not have influenced the credibility findings.
15. Additionally, the judge's conclusion that the appellant was "still searching for a faith" should have prompted the judge to consider risk on return, not only as a failed asylum seeker but also a person who, if questioned, might not be able to indicate that she was a follower of Islam.
16. The above matters amount to material errors on points of law and mean that the decision as a whole cannot stand. As it will be necessary for the appeal to be heard again with the taking of fresh evidence and an examination of relevant objective material, it is appropriate that the matter should be remitted to the First-tier Tribunal for hearing afresh. This accords with the Practice Statement of the Senior President of Tribunals of 25th September 2012 at paragraph 7.2(b).
Anonymity
I make the following anonymity direction:
DIRECTION REGARDING ANONYMITY - RULE 14 OF THE TRIBUNAL PROCEDURE (UPPER TRIBUNAL) RULES 2008

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original appellant. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.
DIRECTIONS
1. The appeal is remitted to the First-tier Tier Tribunal sitting at Manchester for hearing afresh.
2. The hearing should not be before Judge Ransley.
3. The time estimate for the hearing is three hours.
4. The hearing will take place on a date to be given by the Resident Judge.
5. A Farsi interpreter will be required for the hearing.

Signed Date

Deputy Upper Tribunal Judge Garratt 13th October 2016