Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers:
UI-2021-001383
(IA/01648/2021) PA/52147/2020

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 25th March 2022
On the 20 June 2022

Before

UPPER TRIBUNAL JUDGE KEITH
DEPUTY UPPER TRIBUNAL JUDGE THOMAS QC

Between

‘EI’
(ANONYMITY DIRECTION MADE)
Appellant
and

The secretary of State for the Home department
Respondent

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 her or any member of her family. Failure to comply with this direction could lead to contempt of court proceedings.

Representation:
For the appellant: Ms N Nnamani, Counsel, instructed by Howe & Co Solicitors
For the respondent: Mr T Melvin, Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. These are the approved record of the decision and reasons which were given orally at the end of the hearing on 25th March 2022.
2. This is an appeal by the appellant against the decision of First-tier Tribunal Judge Kudhail (the ‘FtT’), promulgated on an unknown date, by which she dismissed the appellant’s appeal against the respondent’s refusal on 19th October 2020 of her protection and human rights claims.
3. In essence, the appellant’s claims involved the following issues. The appellant, whom the respondent accepts is a Turkish citizen of Kurdish ethnicity and of Alevi faith, claimed to have suffered persecution in Turkey, specifically that she had been arrested by the Turkish authorities, tortured and her home had been raided, because of her support for, or activities in relation to, the People’s Democratic party or ‘HDP’, or imputed support for the Kurdistan workers party or ‘PKK’.
4. The appellant claimed to have been arrested at a demonstration on 5th November 2016 and released shortly thereafter but was beaten during detention. She had relied upon a medical report in relation to scarring from Dr Hajioff. She further claimed that her home was raided on 8th September 2018, following which she fled to Turkey later that month and her home has since been raided after her departure.
5. In refusing the appellant’s claim, the respondent noted that the medical report of scarring was consistent with the appellant’s account and while this attracted some weight, the effect was one of not negating the claim. The respondent regarded the appellant’s account of when she ceased activities with the HDP as internally inconsistent, as were her claims as to when her home had been raided, which she had failed to mention in her asylum screening interview. The respondent did not accept the appellant’s account of adverse interest; activity within the HDP; or that she had a well-founded fear of persecution on her return.
The FtT’s decision
6. The FtT noted at §14 that the appellant was a vulnerable witness as a result of mental health issues and her young age (her date of birth is 12th March 2000, so she claimed ill-treatment when a child). During the FtT hearing, the appellant was permitted to take breaks where she needed and FtT judge explained her role.
7. In relation to the substantive findings, the FtT stated at §24 that she regarded the appellant’s account of how she became involved in the HDP as lacking in detail.
8. At §25, the FtT stated that she did not accept as credible that the appellant would have concealed her activities as an HDP member from her parents, when aged only 15. She also did not accept that the appellant would leave it until the day of her arrest at a demonstration to tell her parents of her activities. The FtT also did not accept that the appellant would be such a committed activist at such a young age (§27). At §30, the FtT referred to the appellant’s claim to have attended the rally in question on 5th November 2016 where she was detained. The judge concluded:
“There is nothing to suggest that the appellant was specifically detained because she was an HDP supporter.”
9. Whilst the facts of the demonstration and the appellant’s arrest were consistent with objective evidence (§32 of the FtT’s decision) this did not mean that the appellant was a person who had come to the adverse interest of the authorities. The FtT then went on to consider whether the appellant had been detained as claimed. The FtT regarded the appellant’s account as lacking in detail (§35) and the fact that she was released after only two days did not suggest she was of any interest to the authorities.
10. The FtT then went on to make findings about the appellant’s resumption of political activities in 2018. The FtT drew adverse inferences from the appellant’s delay in leaving Turkey (§40) and from the lack of detail about the raid on her home after the appellant had left (41).
11. Having considered the evidence as a whole, the FtT rejected the appellant’s account and dismissed her appellant’s appeal.
The grounds of appeal and grant of permission
12. The appellant lodged grounds of appeal which are lengthy, but essentially are as follows.
12.1. Ground (1) - when referring to the vagueness in the appellant’s evidence, the FtT had failed to apply the Joint Presidential Guidance Note No.2 of 2010: Child, vulnerable adult and sensitive appellant guidance (the ‘Guidance Note’).
12.2. Ground (2) - the FtT had failed to apply country guidance when considering whether somebody who had been detained previously could face adverse interest on return: IK (Returnees – records IFA) Turkey CG [2004] UKIAT 00312;
12.3. Ground (3) - the FtT’s conclusions that the appellant would not face adverse interest were unsustainable, bearing in mind that the FtT had concluded that her account of attending a demonstration and adverse interest was consistent with objective evidence.
12.4. Ground (4) - the FtT’s reasoning was arguably unclear as to whether the FtT had accepted that the appellant had attended demonstrations.
12.5. Ground (5) - the FtT, when attaching some weight to Dr Hajioff’s report, had failed to consider it in context with the other objective evidence of the detention and ill-treatment of those attending HDP demonstrations. The FtT had fallen into a “Mibanga” error (see Mibanga v SSHD [2005] EWCA Civ 367).
12.6. Ground (6) - the FtT had erred when describing the appellant’s account of sexual abuse and torture as lacking in detail. The FtT had failed to consider the appellant’s detail of her treatment in her asylum interview and the medical evidence.
12.7. Ground (7) - the FtT erred in relying upon the brevity of the appellant’s detention as meaning that she was unlikely to be of interest. This account was consistent with objective evidence as to short periods of detention and associated risk of further adverse interest.
12.8. Ground (8) - the FtT had erred in placing weight on the appellant’s inability identify the founders of the HDP, as opposed to their current leaders.
12.9. Ground (9) the FtT failed to consider the appellant’s age and vulnerability in assessing her ability to describe in detail her activities with the HDP.
12.10. Ground (10) the FtT had erred in drawing inferences from the “convenience” of the fact that the appellant had been visiting an aunt when her family home was raided on one occasion before her departure from Turkey. The FtT ought to have asked the appellant the reason for her visit. The FtT’s reasoning that the authorities would have raided the appellant’s home earlier ignored the illogical actions of repressive regimes.
13. First-tier Tribunal Judge Gibbs granted permission on 28th December 2021. The grant of permission was not limited in its scope. The respondent filed, and we have considered, a Rule 24 response, and skeleton arguments by both parties’ representatives.
The hearing before us
14. We very briefly summarise the parties’ submissions.
The appellant’s submissions
15. The FtT had accepted that the appellant was a vulnerable witness. Where the FtT had had an opportunity to ask further questions and was concerned that the evidence was lacking in detail, it was incumbent on these issues to be identified.
16. In any event, the FtT’s assessment that the appellant’s evidence lacked detail was not accurate. By way of example, while at §27, the FtT had referred to the lack of detail about attendance at demonstrations and rallies and the appellant’s activities for the HDP, she had provided such detail in answer to questions 76 to 78, at page [D18], and 84 to 85 at page [D20] of the respondent’s bundle. She had not only discussed her role in distributing leaflets but even given details of the dates that she had attended demonstrations. Even if she had not been able to provide that level of detail, the FtT had failed to consider that the appellant’s vulnerability and relative youth when the events took place, i.e., between the ages of 15 to 18, might have explained any lack of detail.
17. In terms of the appellant’s vulnerability, she had health issues at the time of giving evidence, as set out in the expert report and she was still taking medication at the time of the FtT hearing. The fundamental point, however, was that the appellant’s evidence had not lacked detail.
18. In relation to the submission on IK (Returnees), the FtT had failed to consider that if the appellant had been involved with the HDP and had attended a demonstration, if she were detained, there was a risk of adverse interest on return. The appellant’s skeleton argument before the FtT, at §4, had cited IK. §16 of IK had expressly stated that the large majority of detentions, sometimes put as high as 90%, were relatively brief. In contrast, the FtT had instead concluded that the brevity of the detention in question, namely for two days, meant that the appellant was not of interest to the Turkish authorities.
19. The FtT had referred to the Country Policy and Information Note - Turkey: Peoples’ Democratic Party (HDP), dated March 2020 (‘CPIN’) and even expressly emboldened a passage of the CPIN, para 2.4.15, at §30 of the decision, where it stated:
“when ordinary members of the HDP have come to the adverse attention of the authorities, this has generally been whilst participating in demonstrations and rallies”
and at §31, had noted that this lent weight to the appellant’s account as consistent.
20. At §32, the FtT had gone on to say that the timeframe for the rally and the appellant’s arrest were consistent with the objective evidence, but this did not mean that the appellant was a person who had come to adverse interest in the authorities. “The appellant [sic] account is that many at the rally were arrested and detained.” This begged the question of what the FtT had concluded at §32. Did it, for example, mean that the appellant was found to have attended the demonstration and then been detained because she was an HDP member, or merely detained, but not because she was an HDP member and therefore would face no risk? If, as contended by Mr Melvin, the FtT had clearly rejected the accounts both of HDP membership and also having been detained, it begged the question of why that conclusion was reached, when the appellant’s account was consistent with the objective evidence, both as to the fact of the rally and the likelihood of arrest.
21. Whilst the FtT had referred at §34 to causation being a matter for the Tribunal in relation to the medical evidence, the FtT critically had failed to consider, bearing in mind that the claim of ill-treatment was also consistent with objective evidence, the evidence as a whole.
22. Ms Nnamani did not suggest that the challenge to the FtT’s comment that the appellant’s absence from her family home when it was raided was “convenient” (§39) was the focus of the appeal, but it begged the question why the FtT made that comment and what it meant.
The respondent’s submissions
23. Mr Melvin referred to his skeleton argument, the gist of which was that the appeal was a mere disagreement with the FtT’s findings, open to the FtT to make on the evidence before her. Dr Hajioff’s report was not probative and was assessed in a holistic way. It was clear what the FtT had accepted and what she had not. The FtT did not accept the evidence on the core of the claim, and it was up to the appellant to have proven her case.
24. The FtT’s findings adequately dealt with the appellant’s claimed involvement, both her attendance at the demonstration and also by reference to the objective evidence and the CPIN at §30 to 32. The FtT was not obliged to probe the appellant’s evidence and it was not incumbent on her to carry out further questioning. It was also entirely open to the FtT to have considered, in the context of a lack of detail, why she was at her aunt’s home when a raid took place; the absence of any request to attend a police station; her father’s claim of threats but no detail; no dates given for further raids; and an inconsistency on the number of claimed raids on the family home.
Discussion and Conclusions
25. We regarded it as unnecessary to structure our discussions by reference to each of the grounds of appeal. Instead, we focus on the central thrust of the appellant’s challenge that the FtT’s criticism of her evidence as lacking in detail was inaccurate and insufficiently reasoned; that the FtT compartmentalised the appellant’s evidence from Dr Hajioff’s evidence and the objective evidence; the FtT had failed to consider the impact of the appellant’s acknowledged vulnerability on any lack of detail in her evidence; and the FtT had failed to engage in country guidance.
26. We are mindful that we must not substitute our view for what we would have decided. We are also very conscious that we do not have the evidence before us to analyse in the same way as the FtT and that any assessment of credibility is a nuanced one. There is also no need for a judge to rehearse each and every piece of evidence, which they can be expected to have been considered.
27. However, we accept the force of Ms Nnamani’s submission that the FtT erred in explaining how the appellant’s evidence lacked detail, in relation to the core issues of her attendance at demonstrations and rallies, how she distributed leaflets (§27) and in relation to her detention and alleged torture (§35). The appellant had specifically confirmed during her asylum interview the dates of her attendance at demonstrations, (her relevant answers to the questions are cited earlier in these reasons). She had provided detail on what had occurred at the demonstration at which she was detained. She mentioned her role in distributing leaflets. She had referred in her interview about her sexual assault and had expanded in her witness statement about her other physical ill-treatment, on which Dr Hajioff commented. The FtT’s criticism that the appellant had not explained “how” she distributed leaflets is not explained further. The FtT does not explain how the appellant’s specific evidence on dates and descriptions of demonstrations are flawed, other than to conclude that they lack detail.
28. The FtT focussed at §35 on the appellant’s evidence in her witness statement and the record of her asylum interview, in assessing her claims of detention and torture, concluding that the “detail overall is lacking.” The FtT based this on the vagueness of the appellant’s evidence on the questions she was asked during interrogation; why she was detained; and how her relatives secured her release. The analysis does not explain how the appellant’s evidence in her witness statement (§17, page [C3] of the respondent’s bundle), which referred to being asked about her family; friends; the HDP and what kind of political activities she was involved in, was deficient in detail. The FtT’s analysis does not consider whether any lack of detail might be explained by the appellant’s claim of sexual assault during the same interrogation, while a minor, as detailed in answer to question 24, page [D8] of the respondent’s bundle. The FtT ought at least to have considered whether a child, who claimed to have suffered traumatic experiences and whom, it was accepted, suffers from PTSD, may be reluctant to recount her experiences, or the trauma may have affected her ability to recite further detail of interview questions, during the events when she claimed to have been sexually assaulted.
29. We do not suggest that a judge must recite or deal with each point of evidence. However, where evidence has been given, and the FtT seeks, in general terms, to criticise that evidence, the FtT risks erring in failing to explain in what way that specific evidence was not sufficient, or whether such deficiencies might be because of vulnerability. That was what happened in this case. This is a material error of law.
30. We accept the proposition that the causation of scarring or PTSD remains a matter for the Tribunal. However, we reject Mr Melvin’s submission that the FtT considered the evidence as a whole. We conclude that the FtT considered Dr Hajioff’s evidence in isolation, particularly in relation to the diagnosis of PTSD. The FtT’s analysis of Dr Hajioff’s evidence was limited to §34, in which she accepted his evidence that the appellant had scarring and PTSD, for which there could be causes other than ill-treatment.
31. We also accept Ms Nnamani’s submission that the FtT erred in considering Dr Hajioff’s evidence in isolation from the appellant’s personal evidence and the wider objective evidence on the fact of demonstrations and detentions (§30). The FtT’s conclusion that the CPIN was consistent with the appellant’s account “does not mean that the appellant was a person who had come to the attention of the authorities” (§32) ignores Dr Hajioff’s evidence, also consistent with the appellant’s account. The clear implication from the FtT’s decision is that the CPIN and Dr Hajioff’s evidence have been discounted because the appellant’s personal account has been rejected. We accept that the FtT also materially erred for this reason.
32. We further accept Ms Nnamani’s submission that the FtT’s findings were unclear, and she materially erred, on a crucial point, namely whether the appellant had in fact attended the demonstration in November 2016, at which she claimed to have been detained. At §32, the FtT stated:
“Therefore the timeframe for the rally and arrest are consistent with the objective evidence. This does not mean that the appellant was a person who had come to the adverse interest of the authorities. The appellant’s account is that many at the rally were arrested and detained.”
33. Mr Melvin suggested it is clear that because the FtT had rejected the appellant’s claim of HDP membership, it followed that she did not attend the demonstration and was not detained. We do not accept that this follows. The FtT had stated earlier in §30 that:
“There is nothing to suggest that the appellant was specifically detained because she was an HDP supporter.”
34. It is far from clear whether the FtT specifically found that the appellant had not attended the demonstration in November 2016. This is at the core of the claim as the FtT cited, at §30, para 2.4.15 of the CPIN, which had stated that where ordinary members of the HDP have come to the adverse attention of the authorities, this has generally been whilst participating in demonstrations and rallies. A finding on attendance at the demonstration was potentially relevant as to the appellant’s motives for doing so, which in turn feeds in to the disputed question of HDP membership. In this context, the absence of any clear finding on attendance is therefore a critical part of the analysis of the appellant’s credibility and its absence is material.
35. We also accept as a material error the FtT’s finding that because her claimed detention was only for a brief period, this did not suggest that she was of any interest to the authorities. This ignores §16 of IK:
“….there is well established objective evidence that the large majority of detentions (sometimes put as high as 90%) are relatively brief and end in release without charge or court appearance…”
36. It further ignores the guidance in IK, about considering relevant risk factors in A (Turkey) CG [2003] UKIAT 00034, which in the appellant’s case included that she is of Kurdish ethnicity, of Alevi faith, and claimed to have been detained, and the circumstances of that detention. To focus on the brevity of detention, when, as IK makes clear, brief detentions are the norm, as the basis for concluding that the appellant was not of any interest to the Turkish authorities, was impermissibly narrow.
37. We note Ms Nnamani’s acceptance that the FtT’s comment at §39 that the appellant’s absence from her family home during a raid was “convenient” was not central to the FtT’s analysis. That said, its meaning is unclear. If it were intended to mean that the account is implausible, which was one weakness in the narrative of events in 2018, then the FtT needed to say this. The FtT also went to on criticise the lack of explanation for why the appellant was at her aunt’s home. It begs the question of whether the appellant was ever asked for an explanation. While not central to the appeal, we accept that the FtT’s findings on this issue were not adequately clear.
38. In summary, the assessment of the appellant’s credibility was finely balanced. Each of the material errors that we have identified, were capable of undermining that assessment of credibility. It was crucial to the analysis for the FtT to consider the evidence as a whole. We accept the central thrust of the appellant’s challenge that the FtT compartmentalised evidence; failed to the consider the impact on the evidence of the appellant’s vulnerability; provided inadequate reasons for assessing the appellant’s evidence as lacking detail; failed to make clear findings on the appellant’s attendance at the demonstration in November 2016; and failed to address relevant country guidance. We regard the FtT’s decision as unsafe, and we set it aside without preserved findings of fact.
Decision on error of law
39. We conclude that there are material errors of law in the FtT’s decision, and we must set the FtT’s decision aside, without any preserved findings of fact.
Disposal
40. With reference to §7.2 of the Senior President’s Practice Statement and the necessary fact-finding, this is clearly a case that has to be remitted to the First-tier Tribunal for a complete rehearing.
41. The remittal shall involve a complete rehearing of the appeal. All aspects of the claims must be addressed.
Notice of Decision
The decision of the First-tier Tribunal contains material errors of law and we set it aside.
We remit this appeal to the First-tier Tribunal for a complete rehearing.
Directions to the First-tier Tribunal
This appeal is remitted to the First-tier Tribunal for a complete rehearing with no preserved findings of fact.
The remitted appeal shall not be heard by First-tier Tribunal Judge Kudhail.
The anonymity directions continue to apply.

Signed J Keith Date: 21st April 2022
Upper Tribunal Judge Keith