Tribunal decisions

The decision

IAC-AH-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/51439/2020
UI-2022-000130 [LP/00339/2021]

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On the 20 May 2022
On the 11 July 2022

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

MZK
(ANONYMITY DIRECTION madE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Ms C Philps, counsel instructed by Duncan Lewis Solicitors
For the Respondent: Mr T Melvin, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction
1. This is an appeal against the decision of First-tier Tribunal Judge Nixon, heard on 22 December 2021. Permission to appeal was granted by Designated Judge Shaerf on 16 February 2022.
Anonymity
2. An anonymity direction was made previously and is reiterated below owing to the appellant’s mental state.
Background
3. The appellant is a national of Iraq and of Kurdish ethnicity. He arrived in the United Kingdom during November 2018 when aged seventeen. His protection claim is based on his fear of MS, who is a brigadier in the Kurdish army and a member of the PUK. The reason for that fear is that the appellant was in relationship with H, who is the daughter of MS. The appellant was assaulted by MS in public and on another occasion at his home. The appellant’s brother was shot by MS. The appellant’s father, who is also a brigadier in the Kurdish army and KDP member, disowned the appellant, who fled Iraq clandestinely.
4. The Secretary of State refused the appellant’s protection claim in a decision made on 4 September 2020. In short, the appellant’s claim was rejected on credibility grounds for a series of reasons. In addition, the respondent did not accept that the appellant’s claimed fear of his girlfriend’s father was for a reason defined in the Refugee Convention. On the viability of removal point, the respondent considered it appropriate to return the appellant to the IKR where he had family support available to him which he could call upon to obtain a CSID.
The decision of the First-tier Tribunal
5. Prior to the hearing before the First-tier Tribunal, the judge declined to treat the appellant, who was diagnosed with mild depression, as a vulnerable witness. The judge accepted that there was a Refugee Convention reason, that of imputed political opinion but rejected the credibility of that account for similar reasons to those given by the respondent. On the issue of return, the judge accepted that the appellant had not seen his CSID since leaving Iraq but found that his relatives could assist him in obtaining the necessary documentation in Iraq, it not being accepted that the appellant was estranged from his family.
The grounds of appeal
6. There are six grounds of appeal. Which can be summarised as follows:
The judge failed to give reasons for making a finding that several assaults do not amount to torture
the judge erred in her assessment of the appellant’s credibility by (i) failing to apply a child sensitive application of the lower standard of proof and (ii) failing to take proper account for the memory difficulties arising from the appellant’s diagnosed mental health difficulties
the judge materially erred in failing to take account of the scarring report when assessing the appellant’s credibility.
the judge erred in fact when summarising an alleged inconsistency in the appellant’s evidence
the judge’s assessment of the plausibility of the appellant’s account of being disowned (i) failed to have sufficient regard to the objective evidence and (ii) failed to take account of case law as to plausibility assessments
The judge failed to have regard to the appellant’s evidence when making the finding that it was not possible for him to have hidden in a public park for 4 days
7. The judge considering the application for permission to appeal extended time for appealing and granted permission on all grounds, on the following basis.
The grounds for appeal are lengthy and I consider Grounds 1 and 2 to be the weakest. In relation to Ground 3, I find that paragraph 32 of the Judge’s decision arguably errs in law in falling into the Mibanga trap. Grounds 4 and 5 (incorrectly numbered 6 in the Grounds) disclose that the Judge arguably erred in law in her approach to the evidence by failing adequately to take account of the background evidence before her and not making sufficient allowance for trans-cultural differences.
8. The respondent did not file a Rule 24 response however, a skeleton argument was received on 19 May 2022, in which the appeal was opposed.
The hearing
9. Both representatives made oral submissions which were wholly in line with their respective written arguments.
10. At the end of the hearing, I announced that the decision of the First-tier Tribunal contained material errors of law such that the decision was unsafe. I set aside that decision in its entirety and remitted the appeal to the First-tier Tribunal for a de novo hearing. I give my reasons below.
Decision on error of law
11. In reaching this decision, I have had regard to the oral and written submissions of the parties as well as all the evidence and background information provided.
12. Starting with the third ground, I find that the judge materially erred in failing to take account of the scarring report when assessing the appellant’s credibility, applying Mibanga [2005] EWCA Civ 367, with reference to {24} of that judgement where the following was said:
‘a fact-finder must not reach his or her conclusion before surveying all the evidence relevant thereto…What the fact-finder does at his peril is to reach a conclusion by reference only to the appellant’s evidence and then, if it be negative, to ask whether the conclusion should be shifted by the expert evidence.’
13. The First-tier Tribunal fell into the error described in the above extract of Mibanga and it is a material error. At [26] of the reasons section of the decision, the judge addressed whether the appellant was a vulnerable witness, at [27] she identified a Refugee Convention reason and at [28] she firmly stated that she did not find the appellant’s account to be credible and proceeded to give a series of detailed reasons for reaching that conclusion, between [28-31]. It was only at [32] that the judge addressed her mind to the medical report regarding the scarring on the appellant’s body, described by the doctor as ‘consistent with’ the account of ill-treatment given. The judge had this to say about that report, “I do not find that this report adds anything to his account, particularly bearing in mind my findings as to his credibility.” I accept the submission made that the judge had already assessed the appellant’s credibility before looking at the medical report as opposed to looking at all the evidence in the round, prior to coming to a global conclusion on credibility.
14. I am satisfied that the fourth ground is made out in that the judge made an error of fact in her understanding of an alleged consistency in the appellant’s account, which she described as ‘striking.’ The judge’s concern was regarding when the appellant became aware of the influence and position of his girlfriend’s father, MS [29]. When the appellant was interviewed substantively about his claim he stated that his girlfriend had told him that her father was ‘very influential with people and the government does not arrest him when he commits crime.’(AIR Q29) He also stated that MS was a brigadier who belonged to the PUK (AIR Q26). At AIR Q57, the appellant explained that he was unaware that his girlfriend’s father “already had a problem” with his own father until after the appellant had been attacked by MS. In his witness statement (AB7), the appellant further explains that while his girlfriend had told him about her father’s influence, he had not appreciated ‘that he could pose a danger to me personally or to my family’ and that he ‘only realised there was a feud between him and my father when MS came to our house.’
15. Unfortunately, the judge did not quote the source of the appellant’s evidence when making the finding at [29] and as such it is unclear whether she is referring to the AIR, the witness statement, or his oral evidence. The grounds state that the appellant said the following during his oral evidence, “she did mention it to me. That he was more powerful. But I wasn’t certain he would behave like that with us.” It is difficult to see where the inconsistency is here, let alone a striking inconsistency. On the contrary, the appellant has given a consistent account from the outset of his girlfriend having told him that MS was powerful and of having learned further details after he spoke to his father. The judge clearly placed a great deal of weight on this erroneous finding and such it amounts to a material error of law.
16. The judge rejects much of the appellant’s account owing to implausibility. The fifth ground explores this in detail, but there are aspects of the fourth and sixth grounds which touch upon this matter. On this point, I have been guided by the judgment of Keene LJ in Y [2006] EWCA Civ 1223 at {25} , noting that a decision-maker ‘should be cautious before finding an account to be inherently incredible, because there is a considerable risk that he will be over influenced by his own view on what is or is not plausible…’
17. Findings made by the judge based on plausibility include at [29] that the appellant ought to have been aware of who MS was at an earlier stage; at [31] the judge says that she would ‘expect his father to set out to avenge his sons and therefore invoke the assistance of the Kurdish army…,’and at [33] that it was not credible that the appellant was able to hide for four days in park. None of these findings are accompanied by adequate reasons and nor did the judge make any reference to the background material or the appellant’s witness statement. In this she erred.
18. The above-mentioned matters show that the judge failed to apply the required anxious scrutiny in this matter and that her findings are unsafe.

Decision

The making of the decision of the First-tier Tribunal did involve the making of an error of on a point of law.

The decision of the First-tier Tribunal is set aside.

Listing Instructions

The appeal is remitted, de novo, to the First-tier Tribunal to be reheard at Birmingham IAC, with a time estimate of 3 hours by any judge except First-tier Tribunal Judge Nixon.

An interpreter in the Kurdish (Sorani) language will be required

Direction Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity. 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: T Kamara Date 23 May 2022
Upper Tribunal Judge Kamara