Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/13354/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 9th November 2016
On 7 December 2016
Before

DEPUTY UPPER TRIBUNAL JUDGE I A M MURRAY

Between

m m
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr Gayle, Elder Rahimi Solicitors (London)
For the Respondent: Mr Jarvis, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of Iran born on 26th June 1974. She appealed against the decision of the Respondent dated 16th November 2015 refusing her application for asylum, for humanitarian protection and on human rights grounds. Her appeal was heard by Judge of the First-tier Tribunal Trevaskis on 29th June 2016 and dismissed in a decision promulgated on 12th July 2016.
2. An application for permission to appeal was made and permission to appeal was granted by Upper Tribunal Judge Plimmer on 5th September 2016. The permission states that the judge may have erred in law in drawing adverse inferences from the absence of corroborating evidence, in particular a claimed arrest warrant and this may have played a material role in the negative credibility findings of the judge. The permission goes on to state that it is arguable that the First-tier Tribunal failed to reach any clear findings on the risk of interrogation/detention on return to Iran as a single woman with a child.
3. There is a Rule 24 response which states that the judge found the appellant's claim to be wholly incredible. The judge refers to the lack of evidence to support her claim and the inability of the Appellant to explain discrepancies between her screening interview and her asylum interview. The response states that these matters clearly and properly went to the judge's overall credibility assessment and the judge was entitled to his decision. The judge considered the relevant country guidance when deciding whether the Appellant would be at risk on return and took account of the Appellant's evidence, that her ex-husband is the father of her son and since the child was conceived after her divorce, found it not to be plausible that the authorities would suspect the child to be the result of an adulterous relationship. The response goes on to state that the Appellant has family in Iran and states that it was open to the judge to conclude that the Appellant's son's best interests will be served by returning to Iran with the Appellant where she has family.
The Hearing
4. The Presenting Officer submitted that he accepts that the judge should have made a decision on whether he accepted that the appellant is divorced. He submitted that the judge seems not to have considered properly the difficulty for the Appellant returning to Iran with a child outside marriage, if she is divorced. He submitted that the only mention in the decision about the divorce is at paragraph 53 when the judge states that the Appellant has been able to obtain a document which she claims is evidence of her divorce. The Presenting Officer submitted that this could be an error on the part of the judge.
5. The Appellant's representative made his submissions relying on the grounds of application. He referred to the grounds, in particular number 4, which states there is a significant factual inaccuracy at paragraph 9 of the decision when the First-tier Judge incorrectly states that the Appellant's ex-father-in-law threatened to have the Appellant arrested for adultery after her marriage as in fact this threat was made after the Appellant's divorce. He submitted that this is a core aspect of the decision and this error indicates that the judge failed to properly understand the sequence of events in this Appellant's life.
6. The representative submitted that at paragraph 21 of the refusal letter the Respondent states that the fourth document refers to a khula but there is no mention of the talaq. He submitted that that is not the case. The talaq is mentioned in the divorce document. He submitted that this was a misunderstanding by the Respondent.
7. The representative submitted that the judge makes no findings about the child of the Appellant and fails to consider the risk to the appellant on return with the child. He submitted that this Appellant is likely to be interrogated on return and at that point she will be at risk of being found guilty of anti-Islamic behaviour by having a child out of wedlock. He submitted that this is the particular social group the Appellant is in - female adulteress returning to Iran with a child born out of wedlock. I was referred to the case of ME Iran CG [2003] UKIAT 00166.
8. The representative then referred to paragraph 51 of the decision in which the judge states that it is unclear why the Appellant has not been able to provide evidence from her ex-husband to corroborate her claims. When the Appellant first made her claim her husband was her dependant. The representative submitted that her ex-husband is now back in Iran after being accused of domestic abuse by the Appellant. He submitted that it is not surprising that there is no evidence from him and I was referred to the Respondent's bundle at D1 which is a letter from Simone James an independent domestic violence advocate dated 27th October 2015 which refers to the Appellant's statement that she has been a victim of domestic violence. I was also referred to the reference at G13 to 15 of the Respondent's bundle, about the injuries sustained by the Appellant.
9. The representative submitted that the reason there is no arrest warrant is that normally in Iran, arrest warrants are not served in the absence of the accused.
10. The representative submitted that the Appellant's claim of apostasy is not strong but there is a letter from the church which baptised her and she has given a reasonable explanation of why she has not been attending church in Swindon. Her reasons are the language barrier and child care. She was dispersed to Swindon and had been attending church where she was staying before that. I was referred to paragraph 57 of the decision in which the case of SB (Iran) [2009] UK AIT 00053 is quoted. The judge states that she does not accept that anti-Islamic conduct will be ascribed to the Appellant on return.
11. I was asked to find that there is a material error of law in the judge's decision.
12. The Presenting Officer made his submissions stating that the judge's findings at paragraph 9 of the decision are not unlawful.
13. The Presenting Officer submitted that from paragraph 46 on in the decision the judge has given detailed reasons for dismissing the appeal and for finding a lack of credibility throughout the Appellant's evidence. The judge refers to discrepancies in the evidence and rejects the Appellant's explanations. At paragraph 54 the judge does not find her claim to be credible. She refers to the lack of medical evidence and at paragraph 50 suggests that the surgery the Appellant had carried out may have been for cosmetic enhancement and not because of abuse. He submitted that the judge's findings at paragraph 9 do not have any bearing on the judge finding the claim to be unreliable.
14. The Presenting Officer submitted that the Appellant as a woman does not form part of a particular social group on return to Iran. She will not be at risk as a woman. He submitted that as the judge finds the appellant to be lacking in credibility, her claim as a member of a particular social group, being a woman guilty of anti-Islamic behaviour, also falls away. He submitted that the judge correctly finds that the appellant will not be at risk on return as a woman and will not be at risk on return as a failed asylum seeker in the UK.
15. The Presenting Officer submitted that everything hinges on whether this Appellant is divorced or not. What has to be decided is whether the child is the result of a relationship outside marriage. At paragraph 51 of the decision the judge refers to the Appellant's husband originally being a dependant on her claim and the fact that at that point there was no statement and no evidence from him. The Presenting Officer submitted that the judge was entitled to make this finding. He obviously felt that at that point her husband would have given evidence but there is none on the file.
16. The Presenting Officer referred to paragraph 52 of the decision in which the judge disposes of the domestic violence accusation. There was no evidence before the judge of a police investigation. All there is is a letter from a domestic violence advocate who simply repeats the Appellant's account. The judge finds that this part of the Appellant's evidence lacks credibility. The judge refers to the letter from the domestic violence advocate and the Presenting Officer submitted that the judge has come to a lawful conclusion.
17. With regard to the arrest warrant the Presenting Officer submitted that there was no evidence before the judge that arrest warrants are not handed out if the accused is not present. He accepted that this may not be normal but the judge was entitled to take into account the absence of that document. At paragraph 53 the judge refers to "a document which she claims is evidence of her divorce". It is not clear whether the judge believed she is divorced.
18. With regard to the Appellant's evidence that she has become a Christian the Presenting Officer submitted that this was a new issue and due to a lack of evidence the judge was entitled to find that this did not ring true. When a Muslim becomes a Christian convert corroborative evidence is required from the church, in person, if possible.
19. The Presenting Officer submitted that the only error there can be in this decision is that the judge did not make a finding on whether the Appellant is divorced or not, whether she has a child born out of wedlock and if she has, what the consequences of this are. He suggested that this claim could be returned to the judge in question to make a decision on these matters but that the judge's other findings should stand.
20. I asked the Presenting Officer if he accepts that on return the Appellant is likely to be interrogated and he stated that she probably will be and she will be asked questions about her background and what she did in the United Kingdom. He stated that there needs to be a resolution on the position of the child in this case.
21. The Appellant's representative submitted that the divorce certificate makes mention of there being a talaq. He submitted that the judge's analyses at paragraphs 46 onwards have been infected by her failure to understand the core of the account. He submitted that paragraph 9 is significant in this connection. It is not being argued that women form their own particular social group, this Appellant's circumstances make her part of a particular social group.
22. With regard to the Appellant's ex-husband not providing any evidence the representative submitted that it is not clear what evidence he could have provided that would help the Appellant's claim. He submitted that the domestic violence occurred before the Appellant was interviewed and it is not normal for statements etc. to be provided before the interview. He submitted that the judge requiring evidence from the Appellant's ex-husband is an unreasonable evidential burden on the Appellant. He accepted that the appellant's husband was a dependant on her claim at the beginning.
23. With regard to the arrest warrant the representative submitted that he cannot recall what was presented to the judge about this but it would be unusual, based on the objective evidence, for an arrest warrant to be served when the accused was absent.
24. He submitted that it would not be appropriate for this claim to be returned to the original judge based on the errors in her decision and that if I find there to be an error of law then the whole claim should be reconsidered in all its terms.
Decision and Reasons
25. I do not find that paragraph 9 of the decision goes to the core of the claim. I find that the judge has understood the sequence of events and the relevant points in issue. The wording of this paragraph is poor.
26. The issue in this case is whether the judge finds that the Appellant is divorced as stated by her. The judge has made no decision on this and no decision on risk on return as a result of this or the situation relating to the child of the Appellant.
27. The judge has found there to be a lack of credibility throughout this Appellant's evidence. He does not believe the Appellant's account of her being beaten and abducted and of her fleeing from Iran with her ex-husband and he does not believe the Appellant has renounced her Muslim faith. The judge refers to inconsistencies in the Appellant's account in her two interviews and the judge does not accept the Appellant's explanation of why there are these discrepancies. The judge refers to there being a lack of medical evidence relating to the lashes given to the Appellant and the facial surgery she undertook and the judge notes that originally there was no mention of this surgery being anything to do with an attack by her husband's family. With regard to her ex-husband corroborating her evidence I do not find it to be unreasonable for the judge to find it strange that there is nothing from her ex-husband when he was originally a dependant on her claim. The judge was also not satisfied that the Appellant had to seek protection from domestic violence by her partner. He has clearly seen the letter produced but this letter merely repeats what the Appellant told the writer of the letter and again the judge finds that credibility has not been established about this.
28. I am not giving much weight to the judge's comments on the arrest warrant as the objective evidence indicates that normally arrest warrants are not served in the absence of the accused. I find there are no errors in the judge's findings about the appellant's conversion to Christianity.
29. I find that the judge's credibility findings are unarguable. His findings on credibility must stand but I find that there is an error in this judge's decision in that he has made no finding on whether he believes the Appellant is divorced and if she is what her risk on return to Iran will be with a child born out of wedlock, and what the child's position will be if returned.
30. In these circumstances I am referring this appeal back to First-tier Tribunal Judge Trevaskis for findings to be made upon these matters and based on these findings he may leave the decision as it presently stands or overturn the decision based on these new findings.
Notice of Decision

The First-tier decision has to be returned to First-tier Tribunal Judge Trevaskis for him to make findings on whether he finds the Appellant is divorced and whether, if she is divorced and if the child has been born out of wedlock, she will be at risk on return to Iran and what the situation will be relating to her child if she has to return to Iran.

Anonymity has been directed.

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 their 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 Date

Deputy Upper Tribunal Judge I A M Murray 7 December 2016