Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11509/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 17th January 2017
On 27th January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE M A HALL

Between

MH
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Hussain of Lei Dat and Baig Solicitors
For the Respondent: Mr M Diwnycz, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction and Background
1. The Appellant appeals against the decision of Judge Robson of the First-tier Tribunal (the FTT) promulgated on 10th May 2016.
2. The Appellant is an Iranian citizen born 27th May 1979 who claimed asylum on 10th March 2015, having arrived in the UK the previous day. The Appellant's claim was based upon his fear of the Iranian authorities because of his involvement with the Democratic Party of Kurdistan (KDPI).
3. The Appellant is of Kurdish ethnicity. He claimed that he had been arrested in February 1999 because of his attendance at a demonstration in 1998. The Appellant was tortured while in detention and sentenced to imprisonment of three years and three months. He was released in April 2001 and had to report to the authorities for a year after his release. He also had to undertake military service.
4. After his release from imprisonment, prior to leaving Iran, the Appellant had been helping Kurdish activists belonging to the KDPI. In July 2014 the Appellant was visited by two KDPI members, and his house was raided by the authorities, but he managed to escape and leave Iran.
5. The application was refused on 6th August 2015.
6. The Appellant's appeal was heard by the FTT on 19th April 2016. The FTT took the view (paragraph 51) that the appeal revolved around the credibility of the Appellant and found that the Appellant had not served a sentence of imprisonment, and there was no objective evidence to confirm the abuse that he claimed to have suffered.
7. The FTT did not find it credible that the Appellant was able to conduct clandestine activities following his release, without coming to the attention of Etelaat. It was not credible that if Etelaat were watching the Appellant's house, they would have allowed him to escape. The FTT therefore concluded that the Appellant had not been active on behalf of the KDPI in Iran. As to the Appellant's activities in the UK, the FTT did not accept that the Appellant had undertaken any activity for the KDPI in this country, because the Appellant claimed that his involvement arose because of the mistreatment he suffered in prison, and the FTT did not find that he had been imprisoned as claimed.
8. The FTT found that the Appellant would not be at risk simply because he had left Iran illegally.
9. The Appellant applied for permission to appeal. In summary it was contended that the Respondent had misunderstood the Appellant's account regarding his release from prison. The Respondent believed that the Appellant had claimed that he was released because he was a wrestler, but the Appellant's case was that he was released following completion of his sentence. It was contended that the FTT erred by failing to take into account the Appellant's explanation. It was submitted that paragraph 52 of the FTT decision is "disjointed and incomprehensible." The FTT had not given adequate reasons for finding that the Appellant had not been imprisoned.
10. Further, the FTT had erred at paragraph 52 by failing to take into account material objective evidence, when making a finding there was no objective evidence to confirm the abuse that the Appellant claimed he had suffered.
11. It was submitted that the FTT had made an illogical finding in concluding that the Appellant had not been imprisoned and tortured, and this had infected the consideration of the whole claim.
12. Permission to appeal was granted by Upper Tribunal Judge Canavan in the following terms;
"2. Given that the judge's credibility findings relied largely on his own view of the plausibility of the Appellant's account it is at least arguable that the judge failed to assess the credibility of the account in light of the relevant background evidence. It is also arguable that in other places the judge may have failed to give sufficiently clear reasons for his findings and for rejecting evidence that was supportive of the Appellant's account. The grounds are sufficiently arguable to warrant further consideration at a hearing.
3. Permission to appeal is granted."
13. Following the grant of permission the Respondent lodged a response dated 6th September 2016 pursuant to rule 24 of The Tribunal Procedure (Upper Tribunal) Rules 2008 contending in summary that the FTT had not erred in law, and had given adequate reasons for the findings that had been made. It was contended that the grounds amounted to a disagreement with findings made by the FTT, but did not disclose a material error of law.
14. Directions were subsequently issued that there should be an oral hearing before the Upper Tribunal to ascertain whether the FTT had erred in law such that the decision must be set aside.
The Appellant's Oral Submissions
15. Mr Hussain relied upon the grounds contained within the application for permission to appeal. I was asked to find that no adequate reasons had been given by the FTT for not accepting the Appellant's claim to have been imprisoned. I was also asked to find that the FTT failed to take into account material objective evidence regarding treatment of detained people in Iran.
16. If the FTT at paragraph 52 was referring to the absence of objective evidence in relation to the Appellant's injuries, it was contended that the FTT had erred by failing to take into account that the injuries suffered while being tortured, had occurred approximately seventeen years previously.
17. Mr Hussain submitted that the FTT had not given reasons for concluding at paragraphs 54 and 55 that it was not credible that the Appellant was able to conduct clandestine activities without coming to the attention of Etelaat.

The Respondent's Oral Submissions
18. Mr Diwnycz relied upon the rule 24 response. I was asked to find that the FTT was entitled to conclude that the Appellant was not credible, and that adequate reasons had been given for that conclusion.
My Conclusions and Reasons
19. The FTT correctly identified at paragraph 51 that the central and core issue in this appeal is the credibility of the Appellant.
20. When findings are made, the FTT must provide adequate reasons for those findings, and the duty to give reasons is set out in the head note to Budhathoki (Reasons for Decisions) [2014] UKUT 00341 (IAC) which I set out below;
"It is generally unnecessary and unhelpful for First-tier Tribunal judgments to rehearse every detail or issue raised in a case. This leads to judgments becoming overly long and confused and is not a proportionate approach to deciding cases. It is, however, necessary for judges to identify and resolve key conflicts in the evidence and explain in clear and brief terms their reasons, so that the parties can understand why they have won or lost."
21. I do not find that the FTT has provided adequate reasons for the conclusion at paragraph 52 that the Appellant had not been imprisoned as claimed. I set out below the final three sentences of that paragraph;
"I do not find that the circumstances in relation to his release are credible. The Appellant had simply served a sentence imprisonment in full imposed upon him, if that had occurred. This, therefore, casts doubt on the actual fact of imprisonment and the abuse that he said he suffered of which there is no objective evidence."
22. The Appellant's case according to paragraph 77 of his witness statement was that he did not claim to have been released from imprisonment because he was a wrestler. He was given a specific sentence and released on completing that sentence. The Wrestling Federation tried to help him, with his parents' involvement, but ultimately he had to serve the sentence that was imposed.
23. The FTT does not adequately explain why the circumstances in relation to his release are not credible. There is no adequate explanation as to why doubt is cast on the Appellant's claim to have been imprisoned.
24. The reference to objective evidence is not clear. If the FTT is stating that there is no objective evidence as to the treatment that Kurdish opponents of the Iranian regime receive, that is an error of law. This is because there was contained within the Appellant's bundle material evidence relating to the treatment of Kurdish dissidents. There is reference to this in a Human Rights Watch Report at pages 25 and 26 which makes reference to torture and threats of sexual violence. There is further reference at page 35 of the Appellant's bundle which is the Home Office country information and guidance on Iran: Kurds [August 2015] which at 2.2.5 makes reference to those involved with Kurdish political parties being targeted for arbitrary arrest, prolonged detention and physical abuse. At 2.2.6 there is reference to those arrested by the Iranian regime for political activities being at real risk of being subjected to serious human rights violations including torture and the death penalty.
25. There is reference at page 47 of the Appellant's bundle which is the same Home Office report, to KDPI members being tortured during pre-trial detention.
26. I do not find that the FTT has provided adequate reasons for the conclusion at paragraphs 54 and 55 that it was not credible that the Appellant would be able to conduct any clandestine activities without coming to the attention of Etelaat.
27. I do not find that adequate reasons have been given for the conclusion at paragraph 58, that the Appellant was able to escape from his home if Etelaat had been watching him.
28. The FTT rejects the Appellant's account to have undertaken activities on behalf of the KDPI in the UK, because the Appellant claimed that he entered into these activities because of his mistreatment in prison in Iran. Because the FTT rejected his account of being in prison, his account of being involved in KDPI activities in the UK was also rejected.
29. I conclude that the FTT has erred by failing to consider material evidence, and failing to give adequate reasons for findings. In particular, the lack of adequate reasons for rejecting the Appellant's account of imprisonment, is an error, and has infected consideration of the whole claim.
30. I therefore set aside the decision of the FTT and find having considered paragraph 7 of the Senior President's Practice Statements that it is appropriate to remit the appeal back to the FTT because of the nature and extent of judicial fact-finding that will be necessary in order for this decision to be re-made.
31. The appeal will be heard at the Manchester Hearing Centre and the parties will be advised of the time and date in due course. The appeal is to be heard by an FTT Judge other than Judge Robson. The parties should note the asylum interview record in the tribunal file is incomplete.

Notice of Decision

The decision of the FTT involved the making of an error of law such that it is set aside. The appeal is allowed to the extent that it is remitted to the FTT with no findings of fact preserved.

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. I make this direction of my own volition as the Appellant has made a claim for international protection.

Signed Date 20th January 2017

Deputy Upper Tribunal Judge M A Hall

TO THE RESPONDENT
FEE AWARD

The issue of any fee award will need to be considered by the FTT.

Signed Date 20th January 2017

Deputy Upper Tribunal Judge M A Hall