Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10909/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 6th April 2017
On 18th April 2017

Before

DEPUTY upper tribunal judge ROBERTS

Between

M.M.
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Bundock, Counsel
For the Respondent: Mr Tufan, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of Iran born on 26th December 1980. He arrived in the UK on 15th January 2015 and made an asylum/human rights claim shortly thereafter.
2. On 28th July 2015 the Respondent made a decision to reject his claims and his appeal against that decision came initially before the First-tier Tribunal (Judge Malins) on 23rd November 2015 following which his appeal was dismissed on all grounds.
3. The Appellant appealed against Judge Malins’ decision and suffice to say that the matter was remitted to the First-tier Tribunal for a fresh hearing. On the second occasion the matter came before First-tier Tribunal Judge Chamberlain.
4. In a decision promulgated on 1st December 2016, Judge Chamberlain also dismissed the Appellant’s appeal on all grounds.
5. The Appellant’s case in essence centres on a claim that he has converted from Islam to Christianity. It is part of his claim that his mother and sisters left Iran and came to the UK where they claimed asylum in 2002, on account of their having converted to Christianity.
6. When the Appellant’s mother and sisters left Iran both he and his brother with whom he lived in Iran were questioned by the authorities. Although his brother was detained for a short period, the Appellant was not. It is however central to the Appellant’s case that he had first been introduced to Christianity by his family.
7. The Appellant’s own conversion came about through a Christian woman whom he met in the course of his work as a builder in Iran. She was employed in what I understand to be a local council department dealing with building regulation work. He started attending meetings at the houses of other Christian members. In December 2014 a meeting was held at his house. This is the house that he shared with his brother and his brother’s family. His brother was away at the time visiting his in-laws in the north of the country. The Appellant’s claim is that the house was raided by the Iranian security forces. The Appellant escaped and shortly afterwards left the country for the UK. His brother was once more detained and questioned this time about the Appellant. He was detained overnight but later released.
8. The Appellant now lives with his mother and sisters in the UK. He attends his sister’s church and has now been baptised in the Christian faith.
The FtT Hearing
9. The First-tier Tribunal rejected the central core of the Appellant’s claim in all material accounts. Firstly the judge found that the Appellant’s various accounts of his meetings with other Christians contained inconsistencies over how many people attended and where and when the meetings were held.
10. So far as the raid on his house was concerned the judge disbelieved the Appellant’s account, finding at [28] that the Appellant had given inconsistent accounts when his evidence at the hearing relating to where and when the raid occurred was compared with his asylum interview.
11. The judge also disbelieved the genuineness of the Appellant’s conversion, finding that there were concerns over his church attendance and subsequent baptism in the UK.
12. There was also available to the judge a letter from the Appellant’s brother in Iran, which was consistent with the Appellant’s account of the raid. The judge disregarded the letter as not being of any weight because she disbelieved the veracity of the Appellant’s account of these events. Additionally she disbelieved evidence given by the Appellant’s mother concerning the position of the Appellant’s brother in relation to the Iranian authorities. The judge accordingly dismissed the Appellant’s appeal.
Onward Appeal
13. The grounds seeking permission raise several issues in relation to the FtT’s decision. They are summarised here below:
The judge’s assessment of the evidence concerning the raid on the Appellant’s house was fundamentally flawed because it was based on a material error of fact. The FtT found that the Appellant had given inconsistent accounts which in turn led the judge to doubt that the raid had taken place. In fact the Appellant’s evidence was wholly consistent on this point.
The judge had erred in giving no weight to the Appellant’s brother’s letter, which in itself was consistent with the Appellant’s account set out in the first bullet point above.
The judge had erred in dismissively brushing aside the evidence of a central part of the Appellant’s case which revolved around the fact that the Appellant had first been introduced to Christianity by his family as far back as 2002.
14. Permission was granted in the following terms by DJ Macdonald:
“The judge found there was no reasonable likelihood that the Appellant’s account of converting from Islam to Christianity was true (paragraph 53). It seems to me that there may be arguable merit in the grounds. It is arguable that the Appellant’s account in terms of Ground 1 was consistent. The judge considered that whether the rest of the family are Christian had no bearing on the matter but as the grounds say that is arguably going too far.”
The UT Hearing
15. Before me Mr Bundock appeared for the Appellant and Mr Tufan for the Respondent. Before I heard submissions a preliminary point arose. Application was made by Mr Bundock to submit further evidence. This was in the form of a witness statement from Mr T Hodson who had been the advocate on behalf of the Appellant at the FtT hearing. The statement was in the form of a transcript of the questions asked at that hearing. Regrettably this evidence had not been served in advance of the UT hearing. I stood the hearing down to allow Mr Tufan the opportunity to read this evidence. Following this, he indicated he was content to proceed and this evidence, which was central to Mr Bundock’s submissions, was admitted under Rule 15 (2A) Tribunal Procedure (Upper Tribunal) Rules 2008.
16. Mr Bundock’s submissions kept to the lines of the grounds seeking permission, supported by the transcript evidence of the questions asked at the First-tier hearing.
17. Mr Tufan’s response relied upon the Rule 24 response which had been served by the Respondent. He reiterated that the judge had considered all the evidence in the round and in particular had made findings concerning the real inconsistencies in the Appellant’s evidence about how many meetings had taken place at the Appellant’s house and how many people were present at the said meetings.
18. He also highlighted that despite the terms of the permission grant it was the Respondent’s view that the judge was correct to assess the Appellant as an individual, rather than someone relying on the fact that other family members had converted to Christianity.
19. At the end of submissions I announced that I was satisfied that the FtT’s decision disclosed material errors requiring it to be set aside. I now give my reasons for this.
Consideration
20. I consider there is merit in the complaint that the FtT was wrong to find that the Appellant’s credibility was adversely affected because of inconsistent evidence concerning the raid on his house by the authorities. If one looks at the interview record [175 to 184] together with his account at the hearing [questions 53 to 71] of the transcript I find no inconsistency there. The FtT states at [28]:
“His evidence at the hearing was unclear about where he had been when he saw the men and how he escaped from them by going up the stairs onto the roof. At the hearing he claimed he was not in his home at all when they arrived, but was on the communal staircase. This is not consistent with his asylum interview. It was unclear from his evidence whether he was claiming that he was inside his home or on the communal staircase, having gone to prepare tea.”
21. However having looked at the interview record and the evidence of the transcript of the hearing I find that there is no lack of consistency or clarity in what the Appellant said. Since this evidence forms a central part of the Appellant’s case, I find that this error in turn could be said to be capable of infecting the other findings made by the FtT.
22. I say this because the evidence of the Appellant’s brother, which is also consistent with the Appellant’s account, has not been given any weight. The judge effectively disregarded the letter because, having found against the Appellant on the point set out above, she found she could place no weight on this letter. There needs to be a proper evaluation of the contents of the Appellant’s brother’s letter.
23. Equally I find that given the Appellant’s circumstances of belonging to a family in which his mother and two sisters converted to Christianity, then it is necessary that findings are made on whether this has any impact on the Appellant himself converting to Christianity. It cannot be said that the situation of the Appellant’s family has no bearing on this matter, because it has always been one of the central themes of the Appellant’s case that it does. Therefore there needs to be a proper fact-finding assessment of this issue, with proper reasoned findings made.
24. For these reasons I find that the decision of the FtT is unsafe and must be set aside to be reheard.
25. Mr Bundock was of the view that because the factual matrix of the decision was tainted and on account of the necessary fact-finding which must be carried out, the matter should be remitted to the FtT for a fresh decision to be made. Mr Tufan asked that it be retained in the Upper Tribunal.
26. After consideration, it is my decision that on account of the amount of fact-finding and credibility issues which must be resolved, it is proper that this matter be remitted to the FtT for a fresh hearing.
27. Accordingly the appeal is remitted to the FtT for a hearing de novo before a judge other than First-tier Tribunal Judges Malins and Chamberlain. No findings of fact are to be preserved.

Notice of Decision

The decision of the First-tier Tribunal involved the making of an error on a point of law. Its decision on all grounds is set aside and the appeal is remitted to the First-tier Tribunal for a hearing de novo before a judge other than First-tier Tribunal Judge Chamberlain or First-tier Tribunal Judge Malins.

Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed C E Roberts Date 12 April 2017

Deputy Upper Tribunal Judge Roberts