Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/00214/2020
PA/50678/2020

THE IMMIGRATION ACTS

Heard at Birmingham CJC
Decision & Reasons Promulgated
On the 30 June 2022.
On the 21 July 2022

Before

UPPER TRIBUNAL JUDGE HANSON

Between

MOA
(Anonymity direction made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr Azmi instructed by Halliday Reeves, Solicitors.
For the Respondent: Mr Williamson, a Senior Home Office Presenting Officer.

DECISION AND REASONS

1. The appellant appeals with permission a decision of First-tier Tribunal Judge Chohan (‘the Judge’), promulgated following a hearing at Birmingham on 25 January 2021, in which the Judge dismissed the appellant’s appeal on all grounds.
2. The appellant is a citizen of Iraq born on 1 January 2001. His claim was summarised by the Judge at [2 – 4] of his decision in the following terms:

2. The appellant’s claim can be summarised as follows. The appellant is from Erbil, in the Kurdistan region of Iraq. The appellant worked in a shop. The appellant and his family are Muslims. However, the appellant claims that from the age of approximately 12 years, he refused to go to the mosque with his father and older brother. As a result, the appellant claims that he was repeatedly beaten by them. It is the appellant’s claim that, in effect, he has renounced his Islamic faith. However, the appellant has a belief in God but does not follow any established religion. The appellant claims that he is an agnostic. On one occasion, the appellant claims that due to a beating he received from his father and older brother, following that incident, the appellant left his home and went to live with a friend. The appellant was then informed by his mother that his father and brother had obtained an arrest warrant from the police. The appellant claims that his father and brother were members of the KDP and therefore, were influential. Fearing for his safety, the appellant made the decision to leave Iraq. The appellant travelled through Turkey, Romania, Germany and France. It appears that the appellant travelled back-and-forth between Romania and Germany. The appellant arrived in the United Kingdom on 17 July 2019 and claimed asylum the next day.

3. The appellant now fears returning to Iraq because he believes he is at risk from his father and brother, and the police. In the reasons for refusal letter, the respondent accepts the appellant’s nationality but otherwise, reject his claim. For reasons as set out in the refusal decision, the contents of which I note. The respondent’s position was confirmed by Mr Corden.

4. At the commencement of the hearing, Mr Azmi submitted that the appellant had no religion, but he was not an atheist. Mr Azmi stated that the appellant was an agnostic and that the Refugee Convention reason was one of religion. Mr Azmi went on to state that reliance would also be placed in articles 2, 3 and 8; the latter being in relation to private life only….

3. The Judge sets out his findings from [7] of the decision under challenge. Having analysed the evidence the Judge sets out his conclusions in relation to protection claim in the following terms:

14 In short, I do not find credible, for the reasons set out above, the appellant refused to go to the mosque. I do not find credible that the appellant is an agnostic. It follows from that that I do not find credible that the appellant had any difficulties with his father and brother, or that an arrest warrant had been issued in his name. Mr Azmi stressed the point that at the time these events occurred, the appellant was under the age of 18. However, according to the appellant’s own account, he had been experiencing problems with his father and brother since the age of 12 and, as Mr Corden submitted, his account is somewhat vague and lacking in substance.

15. I concluded that the appellant, in the past has not faced any persecution or ill-treatment, whether at the hands of his father and brother, all the authorities. I find that the appellant has simply put forward an account to remain in the United Kingdom and nothing more. Irrespective of my adverse credibility findings, the issue of risk on return to Iraq must be considered.

4. The Judge refers in the decision to the previous country guidance case decided in 2019 which has now been replaced by the more recent country guidance case of SMO & KSP [2022] UKUT 00110. There has also been a further public policy change by the Secretary of State in that enforced returns are now to any airport within Iraq.
5. The appellant sought permission to appeal asserting:

1. The Appellant now aged 19y is a Kurdish, Iraqi national from Erbil who came to the UK on the 17th July 2019. He claimed, (i) protection in account of his religious views ( namely turning away from Islam), general security ( religion, and race) and (ii) removal would breach his Article 8 private life. His claim was refused on 18th June 2020. The Appellant's appeal against the refusal of his protection and human rights claim was dismissed by Immigration Judge Chohan on 27th January 2021.
2. The IJ has made material errors of law, principally in finding the Appellant not to be credible as follows;

I. Lacking knowledge as to what sect of Islam his family practised,
II. Inconsistency as to whether he called his mother or his mother called him, and
III. The Appellant not having initially stated the arrest warrant was taken from him in Romania

Lacking knowledge as to what sect of Islam

3. The IJ placed little or no weight upon the expert report, reasoning that the expert; (i) had not interviewed the Appellant, and (ii) had assumed the Appellant was a Suni Muslim. In respect of the first point, the IJ had not considered the material the expert was provided, or provided any reasoning why ( especially under the pandemic circumstances) not interviewing the Appellant minimised the experts opinion.
4. In respect of the second point the IJ has erred in finding the expert had assumed the Appellant to be a Suni Muslim. The expert states, 'He does not know what denomination of Islam they follow and before his asylum interview, it was the first time he had heard of terms 'Suni' or 'Shia'. He was raised as a Muslim growing up as his family are Muslim . . . ' (paragraph 3.4, page A8, Appellant's bundle). The Expert was very clear as to the Appellant's claim.
5. The IJ proceeded to highlight where he believes the expert has assumed the Appellant is a Suni Muslim. He does so by reference to three paragraphs; 5.3, 71 and 7.5 of the expert report;

(a) Paragraph 5.3 (page A12, Appellant's bundle);Despite the new country guidance, it does not account for the violence that Suni Kurdish Muslims face from the clashes between popular mobilisation forces. For example, some Shia Militia May persecute Suni Muslims for their perceived links with ISIL ( an admission within the case itself) whilst Suni militia persecute the Shia for particular beliefs they hold. Reports suggest that Kurdish Muslims are caught in the violence between Shia and Suni militias and Mr Assad is a plausible target for such violence if he will be moved to Iraq – either indiscriminately or for the fact that he is an apostate. . .
(b) Paragraph 7.1 (page A23, Appellant's bundle);Firstly, as a Kurdish Muslim, it is plausible that he is at risk of persecution from Shia militia groups. . . Therefore, Mr Assad could be a plausible target as someone who is Kurdish as per the reports below:
(c) Paragraph 7.5 (page A28 and 29, Appellant's bundle); The expert gives an example of a Suni Kurdish Muslim whose case was dealt with at the upper tribunal. The expert goes on to say;‘ The relevant sections of the decision are below to show some similarity with Mr Assad‘s case – in particular, the fact that he could be targeted by Shia malicious for his Kurdish ethnicity, perceived westernisation as a returnees, his young age and humanitarian concerns as to how he would be supported without a family network:’

6. The above paragraphs do not show the expert has assumed the Appellant to be a Suni Muslim. With respect, the IJ has misread the expert report with the consequence of not applying any weight to the experts opinion, particularly on the plausibility of the Appellants claim and the wider risk he faces;

a. The treatment by the Appellant's family is consistent with other examples ( Expert report ,6.3 page 15,Appellant's bundle).
b. Risk from family for the sake of honour, ( Expert report ,6.4, page 17,Appellant's bundle).
c. Risk from a wider community, even the police, ( Expert report ,6.6, page 19,Appellant's bundle).
d. The Appellant could be viewed as agnostic or atheist or apostate, ( Expert report ,6.10, page 21, Appellant's bundle).
e. The Appellant's account is plausible, ( Expert report ,Section 9, from page 35, Appellant's bundle).

7. In rejecting the Appellant's account that he did not know what sect of Islam his family followed, the IJ has failed to provide adequate reasoning, has misread the experts report, and not considered the objective evidence giving light to the Appellant's account. The Court of Appeal has guided upon the assistance of objective evidence and expert opinion, for example in HK v Secretary of State for the Home Department [2006] EWCA Civ 1037, the CA set out some guidance for assessing the plausibility of a claim;

28. Further, in many asylum cases, some, even most, of the appellant's story may seem inherently unlikely but that does not mean that it is untrue. The ingredients of the story, and the story as a whole, have to be considered against the available country evidence and reliable expert evidence, and other familiar factors, such as consistency with what the appellant has said before, and with other factual evidence (where there is any).

Inconsistency as to the Appellant's call with his mother

8. The second point on credibility, the inconsistency as to who called, whether he called his mother or his mother called him, was never put to the Appellant. It is evident that the IJ failed to take into account the Appellant was recalling a relative trivial part of his circumstances prior to leaving Iraq three years ago. The notion of 'benefit of the doubt', should have been applied more generously when dealing with a young adult, particularly where they are unable to exactly recall a particular minor element of their claim.

Arrest warrant and it being taken from the Appellant in Romania

9. At paragraph 12 the IJ finds the Appellant has only now in his statement mentioned the arrest warrant being given to him and then taken away in Romania. With respect the Appellant at interview questions 68,69 and 77 does speak of an arrest warrant (although he did not mention his mother gave it to him). However in his screening interview at 6.2, under the section; Do you have any other documents or evidence relevant to your claim, the Appellant answered, 'There is a complaint document in Romania about me'. The IJ has erroneously failed to consider relevant evidence.

In Summary

10. The IJ's rejection of the Appellant's credibility has directly impacted upon all his other findings, including the Appellant's ability to obtain a CSID. The above errors of law are material and permission should be granted.

6. The application was considered by a Designated Judge who granted permission stating:

“It is an arguable error of law to base an adverse credibility finding in whole or in part on an apparent discrepancy in relation to a particular conversation whether the Appellant telephoned his mother or she telephoned him, particularly given the evidence was given through an interpreter.

The Judge did not take into account the reference the Appellant made to a “complaint document” left in Romania in his screening at page 11 of the Respondent’s bundle and which is repeated at paragraph 10 of his statement at page 4 of the Appellant’s bundle.

The grounds for appeal disclose the Judge’s treatment of the documents before her did not adequately reflect their contents which led to arguable errors of law in her reasoning to support her conclusions. Permission to appeal on all grounds is granted.

Discussion

7. It was not disputed before me that the finding by the Judge that the appellant had not mentioned the arrest warrant before his witness statement, which is held against the appellant, is incorrect, when there is reference to the same in the asylum interview.
8. It was not disputed before me that this raised the issue of whether the Judge had considered all the evidence relied upon by the appellant in support of his claim before arriving at the conclusions set out in the decision.
9. It was not disputed before me that this gave rise to a fairness issue and that in the circumstances the only available outcome was for the decision to be set aside and remitted to the First-tier Tribunal to be heard afresh by another judge.

Decision

10. The Judge materially erred in law. I set the decision aside. This appeal shall be remitted to the First-tier Tribunal sitting at Birmingham to be heard afresh by a judge other then Judge Chohan.

Anonymity.

11. The First-tier Tribunal made an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

I make such order pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008. No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

Signed……………………………………………….
Upper Tribunal Judge Hanson
Dated 30 June 2022