Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/12717/2015

THE IMMIGRATION ACTS

Heard at : Field House
Decision & Reasons Promulgated
On : 11 August 2016
On : 15 August 2016

Before

UPPER TRIBUNAL JUDGE KEBEDE

Between

[h m]
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr D Chirico, instructed by Elder Rahimi Solicitors
For the Respondent: Mr E Tufan, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a national of Iran born on [ ] 1987. He arrived in the United Kingdom on 31 July 2014 and was detained by the police getting out of the back of a lorry. He was served with removal papers and claimed asylum. His claim was refused on 24 September 2015. He appealed against that decision and his appeal was heard before the First-tier Tribunal and was dismissed in a determination promulgated on 25 May 2016. Permission to appeal to the Upper Tribunal was granted on 11 July 2016.

2. The appellant claims to have been arrested, imprisoned and ill-treated in Iran after attending an anti-government demonstration in December 2009, on the Ashura holy day, and to have been released after six months. He claims to be wanted by the authorities following his failure to attend court on two occasions after his release. He claims to have left Iran in 2011 (or 2012) and to have travelled to Iraq and then Turkey, where he spent two years, before travelling to Italy, France and then the UK. He was interviewed about his claim twice, the second time after admitting to have been issued with a passport and obtaining a Schengen Visa from the Italian Embassy in Tehran in July 2014, after the Home Office discovered his passport, and after initially failing to mention having returned to Iran and claiming that his passport had expired.

3. The respondent, in refusing the appellant's claim, considered that the appellant had deliberately withheld information and that the information he had provided contained inconsistencies, all of which undermined his credibility. The respondent did not accept that the appellant had been detained and considered that he had created that account to bolster his claim for asylum. It was not accepted that he had left Iran illegally and neither was it accepted that he was politically involved in Iran. It was considered that he would be at no risk on return to Iran.

4. The appellant appealed that decision to the First-tier Tribunal and his appeal was heard before First-tier Tribunal Judge R Hussain on 20 January 2016 and dismissed in a decision promulgated on 25 May 2016.

5. Permission to appeal was sought by the appellant on the grounds that the judge had failed to give adequate reasons for his adverse credibility findings and made confusing and contradictory findings in regard to the appellant's account of his detention and release on bail.

6. Permission to appeal was initially refused, but was subsequently granted on 11 July 2015.

7. At the hearing I heard submissions from both parties on the error of law. Mr Chirico sought, and was granted, permission to amend the appellant's grounds to include a challenge to the sustainability of the judge's credibility findings in light of the substantial delay between hearing the appeal and making the decision. Mr Chirico submitted that the judge's findings were focussed on the appellant's travel arrangements rather than the core issue and that his adverse credibility findings were problematic and lacked adequate reasoning. Mr Tufan submitted that there was no nexus between the delay in deciding the appeal and the decision made and that the judge was entitled to make the findings that he did, given the appellant's failure to tell the truth about his passport and journey.

8. I advised the parties that in my view the judge had erred in law such that his decision could not stand and had to be set aside. My reasons for so concluding are as follows.

9. Whilst it is the case that there were significant credibility issues in the appellant's claim, in particular in regard to his account of his journey from Iran and his passport, that was not a sufficient basis in itself to reject the appellant's entire account without findings being made on core issues. At no point did the judge make any findings on the appellant's account of his detention. It is not clear from his brief and rather confused findings at [17] to [19] whether or not he accepted that the appellant had been detained and bailed. At [18] he considered that any further interest in the appellant was as a result of having failed to attend court, but did not explain why the conclusion arising from that was that he was at no risk on return to Iran. Accordingly his findings are simply unsustainable. The issue of delay in making a decision in the appeal is therefore immaterial.

10. It may well be that on a detailed assessment of all the evidence, properly considered and weighed up, the same adverse conclusion is reached on the appellant's claim. However that is not necessarily the case and it seems to me that such an assessment has yet to be made.

11. Accordingly, the decision has to be set aside in its entirety for full and properly reasoned findings to be made on the evidence. The appropriate course is for the case to be remitted to the First-tier Tribunal to be heard de novo, with none of the findings made by the judge being preserved.

DECISION

12. The making of the decision of the First-tier Tribunal involved the making of an error on a point of law. The decision is set aside. The appeal is remitted to the First-tier Tribunal, to be dealt with afresh, pursuant to section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007 and Practice Statement 7.2(b), before any judge aside from Judge R Hussain.

Signed Date: 15/08/2016

Upper Tribunal Judge Kebede