Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: UI-2021-001268
IA/00092/2020 (PA/50691/2020)

THE IMMIGRATION ACTS

Heard at Cardiff Civil Justice Centre
Decision & Reasons Promulgated
On the 7 April 2022
On the 16 June 2022

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

S H
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr M Puar, instructed by NLS Solicitors
For the Respondent: Ms S Cunha, Senior Home Office Presenting Officer

DECISION AND REASONS
1. Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) I make an anonymity order. Unless the Upper Tribunal or court directs otherwise, no report of these proceedings shall directly or indirectly identify the appellant. This direction applies to both the appellant and to the respondent and a failure to comply with this direction could lead to contempt of court proceedings.
Introduction
2. The appellant is a citizen of Iraq. He was born on 1 January 1984 and is of Kurdish ethnicity coming from Kalar in the Sulaimani governorate. He belongs to the Jaf tribe.
3. The appellant claims that he left Iraq on 9 January 2018. On 25 June 2018, the appellant entered the United Kingdom and claimed asylum.
4. The basis of the appellant’s claim was that his family (in particular his brothers) wished his three daughters to undergo Female Genital Mutilation (“FGM”) and also that his eldest daughter would be forced to marry the son of his eldest brother. The appellant claimed that his wife had been assaulted by his brothers for resisting his daughters undergoing FGM and his eldest daughter being forced to marry her cousin.
5. On 7 July 2020, the Secretary of State refused the appellant’s claims for asylum, humanitarian protection and under the ECHR.
The Appeal to the First-tier Tribunal
6. The appellant appealed to the First-tier Tribunal. In a decision dated 26 August 2021, Judge L Murray dismissed the appellant’s appeal on all grounds. Although she accepted that the appellant’s wife had been assaulted by the appellant’s brothers as was claimed, the judge did not accept that it was established that the appellant’s three daughters would be forced to undergo FGM on return to Iraq. Further, the judge found that the appellant, who it was accepted could obtain a replacement CSID, could internally relocate in the IKR.
The Appeal to the Upper Tribunal
7. The appellant appealed to the Upper Tribunal on a number of grounds. On 24 October 2021, the First-tier Tribunal (DJ Shaerf) granted the appellant permission to appeal.
8. The appeal was listed at the Cardiff Civil Justice Centre on 7 April 2022. The appellant was represented by Mr Puar and the respondent by Ms Cunha.
The Submissions
9. On behalf of the appellant, Mr Puar made essentially four submissions.
10. First, Mr Puar submitted that the judge made no factual finding in respect of the risk to the appellant’s eldest daughter of being required to undergo a forced marriage with her cousin. He submitted that the judge referred to that as being an aspect of the appellant’s claim at para 3 of her decision. Further at para 32 the judge recounted that in her decision letter, the respondent had not accepted that the appellant’s eldest daughter was at risk of forced marriage. However, Mr Puar submitted that the judge then failed to go on to make any findings in relation to that aspect of the appellant’s claim. The judge’s findings at paras 35-37 concerned only the risk of FGM. Mr Puar submitted that this aspect of the appellant’s claim was an important factor in the general narrative which the judge was required to make findings upon.
11. Secondly, Mr Puar submitted that the judge failed to make any finding in relation to the evidence of the appellant’s wife and whether she accept her credibility. Mr Puar pointed out that there were two statements from the appellant’s wife dated 26 August 2020 (at pp.120-122 of the digital bundle) and 3 August 2021 (at pp.188-190 of the digital bundle). In addition, the appellant’s wife gave oral evidence. Mr Puar linked this submission to his third submission.
12. Thirdly, Mr Puar submitted that the judge gave no reasons for finding in para 37 of her decision that the appellant’s wife had not gone to the police and reported the attacks by the appellant’s brothers. Mr Puar submitted that the appellant’s wife, in her second statement, had said that she had “reported him”, i.e. the appellant’s brother. Mr Puar submitted that the judge’s finding was unreasoned and had been made in the absence of any credibility finding in relation to the appellant’s wife.
13. Fourthly, Mr Puar submitted that the judge erred in reaching her finding in relation to internal relocation as the judge could not make a proper assessment of relocation without having reached sustainable findings on what, if any, risk there was to the appellant through his daughters.
14. Ms Cunha, on behalf of the respondent, accepted that the judge made a factual error in para 37 of her decision when she said that the appellant’s wife had not gone to the police which was contrary to the wife’s statement. However, Ms Cunha submitted that any mistake of fact by the judge or failure to reach any credibility assessment in relation to the appellant’s wife or in relation to the forced marriage issue was not material. In reality, she submitted, the appellant’s claim turned on whether his daughters would be subject to FGM or forced marriage and the judge had found in paras 35-36 that in effect, there was no future risk as the appellant’s brothers, if they intended to subject the appellant’s daughters to FGM, would have done so in the four year period between 2014 and 2018. She submitted that the judge had given adequate reasons for her finding and her conclusion was not one which no reasonable judge could have reached.
Discussion
15. This is not a case in which the appellant faced a personal risk of serious ill-treatment or persecution. Mr Puar accepted that the appellant’s claim arose through the risk to his daughters, if his claim is accepted, of forced marriage (in relation to the eldest daughter) and FGM in relation to all three daughters. The appellant’s claim is, in effect, reliant upon the substance of the claims of the dependents on his claim who are, if effect, also claiming international protection (see G v G [2021] UKSC 9 at [117] and [121]). Neither representative suggested that the judge was wrong to determine the appeal on this basis.
16. The judge accepted some aspects of the appellant’s claim. In particular, she accepted that the appellant’s wife had been assaulted by the appellant’s brothers at their home between 2014 and 2018 (at para 37). That was because the appellant’s wife was resisting the appellant’s brother’s attempts to allow her daughters to be subjected to FGM. The judge made that finding on the basis of the medical evidence which was consistent with the appellant’s claim of the physical attacks upon his wife (at para 36).
17. It is unclear whether the judge accepted the appellant’s evidence more generally and his credibility. At para 34, the judge found aspects of the appellant’s explanation, in particular why he was unable to escape from his family earlier, to be implausible. Further, at para 35 the judge found that the appellant had changed his evidence as to whether he had been physically assaulted (rather than only his wife) and that this “detracts from his credibility”. At para 36, the judge did not accept that the appellant was subject to physical assaults by his brothers “as his evidence has been contradictory”. Although the judge made no explicit adverse credibility finding, her reasoning which I have set out is, on its face, consistent with her not accepting the appellant‘s evidence as not being credible on significant aspects of the claim.
18. The appellant’s evidence was supported by the evidence of his wife. Yet, the judge made no specific finding whether the appellant’s wife was credible and whether she accepted any or all aspects of her evidence. That was an error of law.
19. The point is well stated in the IAT’s decision in AK (Failure to assess witnesses’ evidence) Turkey [2004] UKIAT 00230. In that case, the judge (an adjudicator) had failed to set out the evidence of five supporting witnesses and, in addition, to make any findings on their credibility. At [9], the IAT noted that it was an error not to set out at least a summary, or the gist of, relevant evidence when reaching findings on issues in dispute:
“At no stage has the adjudicator given any further indications to the nature or content of the evidence given by the five witnesses. Whilst there is of course no general requirement for an adjudicator to set out at length the oral evidence given before him, and in many cases no useful purpose would be served by doing so, nevertheless he ought as a matter of good practice to summarise at least the material parts of the evidence which he has heard so as to enable an informed reader to ascertain the nature and content of that evidence, and also to enable him to be satisfied that the adjudicator has directed his mind properly to the material aspects of the evidence. In general, it is not sufficient for an adjudicator merely to record that a witness has relied on his or her witness statement, although there may be particular circumstances in which that would suffice, e.g. where the evidence in question relates to facts which are not in dispute between the parties, or which are irrelevant to the issues on which the outcome of the appeal will turn.”
20. Then at [10], the IAT identified a principle applicable in this appeal:
“In addition to his failure to summarise properly the evidence given by the five witnesses called on the appellant's behalf, the adjudicator has also failed to make any assessment as to the credibility or otherwise of that evidence, or to give any reasons for arriving at his assessment. Save in those exceptional cases where the material facts are not in issue between the parties, it is an essential part of an adjudicator's responsibility to make clear findings of fact on the material issues, and to give proper, intelligible and adequate reasons for arriving at those findings. An adjudicator who fails to do so is liable to find that his determination is vulnerable to challenge on appeal at the suit of the losing party. That is the position here.”
21. I would add: it is also the position in this appeal.
22. The IAT, emphasising the important point of principle, concluded (at [12]):
“The necessity to make proper findings of fact in relation to all the oral evidence, and not merely that given by the appellant, is one which is being overlooked by adjudicators with unfortunate frequency. For that reason, it is intended that this determination should be reported for the guidance of adjudicators as to the necessity to make proper findings on the evidence of all the witnesses called before them.”
23. In order to reach findings on the evidence as a whole, it was incumbent upon the judge not only to consider the appellant’s evidence but also that of his wife. That they were mutually supporting was, at least to some extent, a factor consistent with, and supportive of, their evidence (including the appellant’s which the judge rejected) being truthful. Of course, the judge might have given valid reasons why she did not accept the credibility of the appellant or his wife but, in the absence of any finding in relation to the appellant’s wife, the judge erred in law in assessing the evidence as a whole and in reaching her findings as to whether or not she accepted the appellant’s claim.
24. That error is exemplified by what the judge said in para 37. There, the judge set out that the appellant’s wife “did not go to the police”. That is set out not on the basis of the rejection of the appellant’s evidence (or that of his wife) that she did in fact report the appellant’s brothers, and the only reasonable inference is that that was to the police, but rather as an asserted fact without engaging with the evidence of the appellant’s wife. That, in itself, is an error either because it is an unreasoned finding or it is an assertion of a mistaken fact which ignores the evidence of the appellant’s wife.
25. In my judgment, these matters amounted to errors of law.
26. In addition, Mr Puar relied upon the fact that the judge had failed to make any finding in relation to the other aspect of the appellant’s claim, namely that his eldest daughter was at risk of forced marriage.
27. I accept Mr Puar’s submission that, although the judge recognised at paras 3 and 32, this aspect of the appellant’s claim, she made no explicit finding in relation to it. It may be, however, that as the events and context involved both the threat of FGM and forced marriage that the judge simply treated them as cumulatively being established or cumulatively not being established. In my judgment, that is a reasonable reading of the judge’s decision. I do not, therefore, accept Mr Puar’s submission that the judge’s failure to make any explicit finding in relation to the claim that the appellant’s eldest daughter was or was not at risk of forced marriage, in itself, amounted to an error of law.
28. Nevertheless, as I have already said, the other matters relied upon by Mr Puar do give rise to errors of law in reaching findings on significant issues in the appeal.
29. Ms Cunha submitted that any error was not material as the judge had, in effect, rejected the appellant’s claim on the basis that it was implausible that, if the appellant’s brothers intended to subject the appellant’s daughters to FGM by force, they would not have done anything about it between 2014 and 2018. At para 36 the judge said this:
“However, in view of the fact that it would have been easy for them to overpower [the appellant’s wife] and take her daughters and this took place over a four year period, I conclude, that had they intended to subject them to FGM by force, they would have done so. I do not accept that the appellant was subjected to physical assault by his brothers as his evidence has been contradictory.”
30. Whilst this passage undoubtedly played a significant part in Judge Murray’s reasoning that led to her adverse findings, I am not satisfied that her decision would necessarily have been the same had she not fallen into error by failing properly to reach a finding on the appellant’s credibility and in respect of his wife’s evidence.
31. Part and parcel of the assessment of the evidence required the judge to reach findings on the evidence as to whether or not the appellant’s wife did in fact report what had happened to the police. The appellant’s wife, in particular in her second statement dated 3 August 2021, set out her evidence why it was that her husband’s brothers desisted their attacks, as she put it, “stop[ped] his brothers hurting our daughters”. She gave evidence that the appellant came home and intervened and that sometimes her mother-in-law intervened, including pleading with her sons to stop. In my judgment, this evidence, upon which the judge made no findings, was relevant in assessing the veracity of both the appellant’s and his wife’s accounts, including their explanations as to why, despite the multiple beatings of the appellant’s wife by his brothers, the claimed threat of FGM (and also forced marriage) was not carried out between 2014 and 2018. I am not persuaded that the judge’s errors were not material to her findings that led to the dismissal of the appeal.
32. For these reasons, the judge materially erred in reaching her findings and decision to dismiss the appeal on international protection grounds.
33. I also accept that the internal relocation finding cannot stand in the absence of sustainable findings in relation to the risk arising from the appellant’s brothers of forced FGM and marriage.
Decision
34. The decision of the First-tier Tribunal to dismiss the appellant’s appeal involved the making of an error of law. That decision cannot stand and is set aside. None of the judge’s findings can be preserved.
35. In the light of the nature and extent of fact-finding required, and having regard to para 7.2 of the Senior President’s Practice Statement, the proper disposal of this appeal is to remit it to the First-tier Tribunal for a de novo rehearing before a judge, other than Judge L Murray. No findings are preserved.

Signed

Andrew Grubb

Judge of the Upper Tribunal
14 April 2022