Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00113/2020

THE IMMIGRATION ACTS

Heard at Priory Courts Birmingham
Decision & Reasons Promulgated
On 18 January 2022
On 17 March 2022

Before

UPPER TRIBUNAL JUDGE HANSON
DEPUTY UPPER TRIBUNAL JUDGE M A HALL

Between

SHM
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr M Mohzam of Burton and Burton Solicitors
For the Respondent: Mr C Bates, Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction and Background
1. The appellant appeals against a decision of Judge Chohan of the First-tier Tribunal (the judge) promulgated on 4 November 2020.
2. The appellant is a citizen of Iraq born in August 2002. He arrived in the UK clandestinely on 17 November 2018 and claimed asylum. The respondent believed him to be an adult and he was interviewed as such. There was a screening interview on 19 December 2018 and a substantive asylum interview on 10 June 2019.
3. An age assessment was carried out on 29 July 2019 and 7 August 2019 which concluded that the appellant was born on 2 August 2002. The respondent accepted the conclusion of the age assessment and therefore accepted that the appellant had been a minor when he entered the UK and when he was interviewed.
4. The appellant’s asylum and human rights claim was refused by the respondent on 15 November 2019 and his appeal was heard on 16 October 2020. The appellant’s claim as considered by the judge was that he is a Kurdish Sunni Muslim from Glabad near Kifri. He claimed that in 2015 his parents and brother had gone to visit relatives in Suleiman Beg, which at that time was controlled by ISIS.
5. The appellant claimed that his parents and brother were killed by ISIS which is why he fears ISIS if returned to Iraq, and he also fears a Shia group called Hashd al Shaabi.
6. The judge accepted the appellant’s nationality and age, noting that this had been accepted by the respondent. The judge accepted that the appellant had been interviewed as an adult when he was in fact a minor but found that due weight should be attached to what the appellant had said in interview.
7. The judge did not accept that the appellant had given a credible account, describing the account as vague and lacking in detail. The judge did not accept that the appellant’s family members were killed by ISIS.
8. The judge found that the appellant would not be at risk in his home area. The appellant would be returned to Baghdad, and the appellant had given evidence, which the judge accepted, that he had a CSID in Iraq but had left it there when he departed. The judge found that the appellant’s family in Iraq would be able to assist him with reference to the CSID. As an alternative to the appellant returning to his home area, the judge found that he had a reasonable internal relocation option to Baghdad, which would not be unduly harsh. The judge dismissed the appeal.
The Application for Permission to Appeal
9. The appellant relied upon four grounds in seeking permission to appeal to the Upper Tribunal.
10. Firstly it was contended that the judge had erred in law in his treatment of the answers given by the appellant in interview. Because the appellant was a minor when interviewed, and had no responsible adult or legal representative present when interviewed, it was contended that little weight should have been given to the interviews.
11. Secondly it was contended that the judge had erred in law by applying the wrong test when assessing the appellant’s claim. It was submitted that the correct test was the lower standard, giving the benefit of doubt to the appellant because he was a minor when the events in Iraq had taken place, and when he entered the UK and when he was interviewed.
12. Thirdly, the judge had erred materially by failing to set out reasons why he found the appellant not to be credible, and the judge had failed to take into account the objective evidence.
13. Fourthly, if it was accepted that the judge had materially erred in finding the appellant’s account incredible, it was contended that the judge had materially erred in law in considering the issue of a CSID card. It was submitted that the appellant would not be able to obtain a replacement CSID in the UK, or in Baghdad to where he would be returned, and without that he would be at real risk in Iraq, and would not be able to travel from Baghdad to his home area.
Permission to Appeal
14. Permission to appeal was granted by Upper Tribunal Judge Martin who found it arguable that the judge erred in attaching significant weight to the screening and asylum interviews when the appellant was a minor, and there was no responsible adult or legal representative present.
15. It was decided that all the grounds of appeal may be argued.
Our Analysis and Conclusions
16. At the oral hearing Mr Mohzam relied upon all the grounds upon which permission to appeal had been granted, arguing that the judge had materially erred in law such that the decision must be set aside.
17. Mr Bates relied upon a written rule 24 response, contending that the judge had not materially erred in law. Mr Bates argued that the credibility findings of the judge did not disclose any error of law, but if it was found that there was a material error in the credibility findings, Mr Bates accepted that this would make the judge’s findings on risk on return unsafe and the decision would need to be set aside.
18. Grounds 1 and 2 can be considered together. The appellant argues that little weight should be attached to the appellant’s answers in interview, and the wrong test was applied by the judge. We conclude that these grounds do not disclose a material error of law for the following reasons.
19. The judge accepted that the appellant was a minor when interviewed, and that he did not have a responsible adult present and he did not have legal representation. The judge found that this did not mean that the interviews should be excluded in entirety, but decided that the issue was what weight should be attached to the answers given by the appellant in interview and in our view the judge adopted the correct approach as set out in JA (Afghanistan) [2014] EWCA Civ 450.
20. The judge correctly noted that there was no specific challenge to the contents of the interview records, and the judge was entitled to place weight upon the answers given by the appellant in interview, as those answers were not in fact challenged on behalf of the appellant. This was not a case where it was alleged that the appellant had any vulnerabilities such as learning difficulties, and the judge was entitled to take into account the comments made by the age assessors about the appellant’s maturity, appearance and demeanour.
21. We do not find that the judge’s decision demonstrate that the judge applied the wrong test when considering the evidence. We do not find that the decision indicates that the judge had not applied the lower standard of proof, that being a reasonable degree of likelihood. The judge was entitled to consider the age assessment as a whole and specific reference to the assessment is made at paragraph 9 of the judge’s decision. The judge sets out an extract from the age assessment report, noting that the assessors believed the appellant’s demeanour throughout their interaction with him might have suggested him to be an adult, and the assessors described the appellant as approaching the age assessment with a high level of maturity, and being extremely independent during placement.
22. At paragraph 12 the judge specifically refers to being prepared, having considered the objective evidence and country guidance case, to give the appellant the benefit of the doubt, and accept the claim that ISIS was in operation in the area of Suleiman Beg.
23. Ground 3 criticises the judge’s credibility findings, claiming that the judge had not given reasons for finding the appellant not to be credible, and the judge had failed to take into account object evidence.
24. Guidance on adequacy of reasons can be found in Budhathoki (reasons for decisions) [2014] UKUT 00341 (IAC). The guidance set out in the headnote to that decision can be summarised as follows. It is generally unnecessary and unhelpful for First-tier Judges to rehearse every detail or issue raised in a case, as this leads to judgements becoming overly long and confused and is not a proportionate approach to deciding cases. It is however necessary for judges to identify and resolve key conflicts in the evidence and explain in clear and brief terms their reasons, so that the parties can understand why they have won or lost.
25. The judge examined the credibility of the appellant’s account and set out his findings at paragraphs 13-15. The judge described at paragraph 13 the appellant’s account as ‘somewhat vague and lacking in detail.’ The judge gave reasons for this finding, pointing out that the appellant was asked when cross examined at the hearing as to how he knew his relatives had been killed by ISIS. The appellant stated that he did not know. This conflicted with his written evidence in which he stated that his relatives had informed his uncle of what had happened to his parents. The judge comments ‘I appreciate that at that time the appellant would have been very young but I do not find credible that he would not have known such basic information.’ We find that the judge was entitled to reach that conclusion, and it is evident to a reader of the decision why he reached that conclusion.
26. At paragraph 14 the judge sets out the appellant’s claim that ISIS attacked the village and killed his uncle, and the appellant claimed that before the villagers fled they managed to take with them the bodies of those who had been killed, including the appellant’s uncle. The judge found that the account did not make sense, on the basis that if ISIS had attacked the village as claimed, it was not credible that the villagers would have had time to remove the dead bodies.
27. At paragraph 15 the judge refers to Hashd al Shaabi who the appellant claims to fear, noting that the appellant did not mention this group during his screening interview. The judge considers that this may have been due to the appellant’s young age at the time, but finds that if the appellant had been in fear of that group, ‘it is difficult to understand how he would have forgotten to mention them.’ The judge notes in answer to questions 85 and 86 of the asylum interview the appellant stated that Hashd al Shaabi were not in his village when he left, but he gave a conflicting answer to question 95, stating that this group were in the village.
28. The findings made by the judge do take into account the appellant’s age when he was in Iraq, and when he was interviewed. The findings are not perverse or irrational, and are findings that the judge was entitled to make and are adequately reasoned.
29. We do not find that it can fairly be said that the judge failed to take into account the objective evidence and country guidance case law. There are frequent references to the country guidance case law in force at the time, SMO Iraq CG [2019] UKUT 00400 and as previously mentioned, the judge at paragraph 12 of his decision made specific reference to the objective evidence and country guidance case, and indicated that he was prepared to give the appellant the benefit of the doubt and accept that ISIS was operating in the area of Suleiman Beg.
30. It was contended in the grounds of appeal that ground 4 would only be relevant if an error of law was found regarding the findings of the judge at paragraphs 11-17 in which the judge found that the appellant was not credible and found that his family members had not been killed by ISIS. We have found no material error of law in the assessment by the judge of the appellant’s credibility and therefore the judge’s finding that the appellant’s family members were not killed by ISIS stands. We therefore conclude that ground 4 discloses no material error of law in relation to the appellant obtaining a CSID card. The judge was entitled to find that the appellant gave evidence to the effect that he had a CSID but left it in Iraq, and the judge could see no reason why the appellant’s family members would not be able to assist him in relation to his CSID card or the information contained within it. The judge was entitled to note that the appellant would be returned to Baghdad but he would not be at risk in his home area. There was therefore no need to consider internal relocation to Baghdad.
31. We find that the grounds upon which permission to appeal was granted, display a disagreement with the findings made by the judge, but we do not find that the grounds disclose a material error of law.
Notice of Decision

There is no material error of law. The appeal is dismissed.

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 his 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 10 February 2022

Deputy Upper Tribunal Judge M A Hall