Tribunal decisions

The decision

IAC-BH-PMP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00345/2016

THE IMMIGRATION ACTS

Heard at Bennett House, Stoke
Decision & Reasons Promulgated
On 5th December 2016
On 10th January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE GARRATT

Between

HOSHYAR KHALID
(ANONYMITY DIRECTION NOT MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mrs M Christopher, Legal Representative of Burton & Burton Solicitors
For the Respondent: Mr C Bates, Senior Home Office Presenting Officer

DECISION AND DIRECTIONS
1. In a renewed application for leave to appeal, Upper Tribunal Judge McGeachy gave permission on all grounds to appeal against the decision of Judge of the First-tier Tribunal Robertson who dismissed the appeal on all grounds against the decision of the respondent taken on 5th January 2016 to refuse asylum, humanitarian and human rights protection to the appellant, an adult citizen of Iraq of Kurdish ethnicity.
2. Judge McGeachy noted that the First-tier Tribunal had granted permission on the basis that the judge had applied the wrong standard of proof in using words such as "compelling" and "more likely than not" when deciding whether the appellant was at risk of serious harm under Article 15(c) of the Qualification Directive. Judge McGeachy thought it appropriate to grant permission on all grounds referred to in the renewed application albeit that they might be dealt with briefly at a hearing.
3. The additional grounds upon which permission was sought contend that the judge had reached inconsistent and contradictory findings in relation to the core of the appellant's claim to have a well-founded fear of persecution from ISIS on return to Iraq. In particular, in paragraph 15(iii) of the decision, the judge accepted that ISIS may have been watching the appellant and may already know his identity and family circumstances but then, in paragraph 17, did not accept that the appellant's identity was known to ISIS. Further, in paragraphs 14 to 17, the judges conclusion did not show that objective material had been taken into consideration which showed that the appellant originated from the contested area where there was indiscriminate violence amounting to serious harm. That objective evidence was acknowledged by the judge in paragraph 18 but apparently not taken into consideration when credibility findings were made.
4. At the hearing Mr Bates handed over a copy of the response of 8th November 2016 and contended that the judge had made findings open to him. He thought the words used in paragraph 20 did not show a material error as the judge had already indicated the lower standard of proof applying in the appeal. He suggested that the words "more likely than not" were a figure of speech and not indicative of a higher standard of proof. The response also comments that the contested area from which the appellant comes has been returned into Iraqi government hands.
5. Mrs Christopher confirmed that the renewed grounds were relied upon. She also added that the appellant would be unable to return to his home town of Erbil in the Kurdish region without the necessary travel documents.
Conclusions
6. After I had considered the matter for a few moments I announced that I was satisfied that the decision showed errors on points of law such that it should be set aside and the appeal heard afresh before the First-tier Tribunal. My reasons for that conclusion follow.
7. Whilst, in normal circumstances, it can be accepted that a judge who correctly sets out the relevant standard and burden of proof in self directions is unlikely to depart from them when reaching subsequent credibility findings, I conclude that this case is an exception to that normal rule. Reference has been made to the judge's use of the words "compelling" and "more likely than not" in paragraph 20 thus inferring that a higher standard of proof has been applied. However, that is not the only location in the decision which shows such a misdirection. In paragraph 14 the judge also states:
"Overall I do not find the appellant's evidence to be convincing".
8. The use of the word convincing also suggests that too high a standard of proof was in the judge's mind at the time he was considering credibility issues. When these misdirections are considered in the light of the apparent contradiction between the findings in paragraph 15(iii) and paragraph 17 where, on the one hand, the judge suggests that ISIS may already know the identity and family circumstances of the appellant but, on the other, that his identity is not known to ISIS, then the decision becomes unsafe in relation to all credibility issues. Further, although paragraph 18 shows that the judge was aware of country guidance in relation to Article 15(c), it is not clear that this guidance was applied to the conclusions about credibility and reasons given for its rejection.
Decision
The decision of the First-tier Tribunal shows errors on points of law and is set aside. The appeal is to be re-made afresh before the First-tier Tribunal. Bearing in mind that the appellant lives in Stoke-on-Trent it is appropriate that the re-making of the appeal should take place at the Stoke Hearing Centre.
Anonymity
Anonymity was not requested before the Upper Tribunal nor do I consider it appropriate.
DIRECTIONS
1. The appeal is remitted to the First-tier Tribunal sitting at Stoke for hearing afresh on all issues.
2. The time estimate is three hours.
3. A Kurdish (Sorani) interpreter will be provided for the hearing unless representatives indicate to the contrary.
4. The re-hearing of the appeal should not take place before Judge J Robertson.

Signed Date

Deputy Upper Tribunal Judge Garratt