Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00403/2018

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 17th May 2019
On 20th May 2019

Before

DEPUTY UPPER TRIBUNAL JUDGE MANDALIA

Between

KN
(anonymity direction made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr S Ell, Counsel instructed by Paragon Law
For the Respondent: Mr Tan, Home Office Presenting Officer

DECISION AND REASONS

1. The First-tier Tribunal ("FtT) has made an anonymity order and for the avoidance of any doubt, that order continues. KN is granted anonymity throughout these proceedings. No report of these proceedings shall directly or indirectly identify him. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to proceedings being brought for contempt of court.
2. This is an appeal against the decision of First-tier Tribunal ("FtT") Judge Clarke promulgated on 15th June 2018. The FtT Judge dismissed the appellant's appeal against the decision of the respondent dated 21st December 2017, to refuse his claim for international protection.
3. The appellant is a national of Iran. It appears that he arrived in the United Kingdom on or about 12th October 2015 and claimed to be a minor. He was interviewed by social workers employed by Derby City Council on 13th October 2015, and following an age assessment, the appellant's date of birth was confirmed to be 5th June 1998.
4. The respondent accepts that the appellant is a citizen of Iran and that he is of Kurdish ethnicity. The account of events relied upon by the appellant leading to the claim for international protection are summarised by the FtT Judge at paragraph [19] of the decision. The Judge's findings and conclusions are set out at paragraphs [21] to [58] of the decision. It is not necessary for me to refer to the particular findings made by the FtT Judge in this decision. It is sufficient to say that the Judge rejected the claim made by the appellant. At paragraph [47] of the decision, the Judge states as follows:
"Even allowing for the fact that the events that brought the appellant to the United Kingdom took place when the appellant was 17 years of age, I am not persuaded even to the low standard of proof applicable, that the appellant has given credible evidence as to the reasons why he fled Iran. His account of events is inconsistent in terms of chronology and detail. He has not satisfactorily explained these inconsistencies."
5. In the preceding paragraphs, the Judge had identified a number of areas where the evidence of the appellant given at various stages, appeared to be inconsistent. The Judge makes a number of valid criticisms of the appellant's evidence particularly where the evidence given by the appellant during his asylum interview was inconsistent with the evidence set out in the appellant's witness statement and the evidence given to the Tribunal. If the Judge's consideration of the evidence had been limited to those inconsistencies, the appellant is unlikely to have had any valid cause for complaint. However, in the analysis of the evidence, the Judge also had regard to information that the appellant had provided to the social workers employed by Derby City Council, who carried out the age assessment. The Judge refers to material discrepancies between information given by the appellant during that age assessment, and the account of events relied upon by the appellant in support of claim for international protection, and at the hearing of the appeal. The inconsistencies identified went to the core of the claim.
6. There are a number of grounds of appeal relied upon by the appellant. He claims that in reaching the decision, the FtT Judge refers throughout, to the Derby City Council age assessment. It is claimed that it is apparent from the age assessment, that the appellant entered the UK under conditions of adversity and presented as nervous to the assessors. The appellant claims that it is understandable that the respondent did not rely upon the information provided as part of that age assessment, at all, when deciding the claim for international protection. As the content of the age assessment was not referred to in the respondent's decision, it was not addressed in the evidence provided by the appellant to the Tribunal. The appellant claims that during the hearing, neither the Judge nor the respondent asked the appellant any questions regarding the content of the age assessment. Furthermore, the respondent did not rely upon the content of the age assessment in the submissions made to the Tribunal.
7. Permission to appeal was granted by FtT Judge O'Callaghan on 13th July 2018. The matter comes before me to consider whether the decision of the FtT involved the making of a material error of law, and if so, to remake the decision.
8. The respondent has filed a rule 24 response dated 13th September 2018 in which the respondent confirms that the appeal is opposed. The respondent submits that the FtT Judge was entitled to consider the account given by the appellant in the age assessment. The age assessment formed part of the respondent's bundle and as such, its content was known to the appellant prior to the hearing. The appellant was on notice that his account of events, in particular his political activities and membership of a political party had not been accepted by the respondent, and they were matters that would need to be determined by the Tribunal. The appellant should have addressed any inconsistencies, between the claims made at various stages, in his evidence.
9. Mr Tan relies upon the respondent's response. Although there is some force to the submissions made by the respondent, I have carefully read the respondent's decision dated 21st December 2017. At paragraph [10] of the decision, the respondent lists the material that was considered in reaching the decision. The age assessment carried out by Derby Social Services is listed. At paragraphs [42] to [55] of the decision, the respondent addresses the appellant's claim to have been involved in political activity. The respondent does not in any of those paragraphs make reference to any inconsistencies between the information provided to the social workers, and the claim made to the respondent.
10. Mt Tan confirmed that he was unable to establish from the notes of the Presenting Officer that appeared on behalf of the respondent at the hearing of the appeal, whether there was any reference to that age assessment during the hearing of the appeal. I have carefully checked the record of proceedings, and it appears, as the appellant claims in the grounds of appeal, that neither the Judge nor the respondent asked the appellant any questions regarding the content of the age assessment. It also appears that the respondent did not refer to anything set out in the age assessment, in the submissions made to the Tribunal.
11. I remind myself that in MM (unfairness; E & R) Sudan [2014] UKUT 00105 (IAC) the Upper Tribunal held that where there is a defect or impropriety of a procedural nature in the proceedings at first instance, this may amount to a material error of law requiring the decision of the First-Tier Tribunal (the "FtT") to be set aside. The authorities referred to by the Upper Tribunal in MM (unfairness; E & R) Sudan [2014] UKUT 00105 (IAC) make it clear that upon an appeal such as this, the criterion to be applied is fairness and not reasonableness.
12. Having carefully considered the record of proceedings, I am satisfied that the appellant was given no opportunity to address the matters that might have been of concern to the Tribunal. I am satisfied that the inconsistencies referred to by the Judge between the claims made as part of the age assessment, and the claim made to the respondent, had not been referred to in the respondent's decision. The appellant was not cross-examined about those inconsistencies during the hearing of the appeal. The appellant was not given any opportunity to provide any explanation for the material inconsistencies in his account, that go to the core of his claim. In my judgment, the decision of the FtT contains a material error of law and should be set aside.
13. I must then consider whether to remit the case to the FtT, or to re-make the decision myself. It is to be noted that there is now more recent country guidance set out in HB (Kurds) Iran CG [2018] UKUT 00430 (IAC). That country guidance post-dated the decision of the FtT Judge but is plainly capable of having an impact upon the outcome of the appeal. As the Upper Tribunal did in MM (unfairness; E & R) Sudan [2014] UKUT 00105 (IAC), I consider that where a first instance decision is set aside on the basis of an error of law involving the deprivation of the appellant's right to a fair hearing, the appropriate course will be to remit the matter to a newly constituted FtT for a fresh hearing.
14. The decision of the FtT has identified what may be significant discrepancies in the account of the appellant, particularly when considered against the claims that he made shortly after his arrival in the UK, during the age assessment. For the avoidance of doubt, the appellant must at any future hearing, be ready to deal with such inconsistencies, notwithstanding the lack of reference to any inconsistencies in the respondent's decision.
Notice of Decision
15. The appellant's appeal against the decision of FtT Judge Clarke is allowed and the decision of the FtT Judge is set aside.
16. The appeal is remitted to the FtT for rehearing afresh with no findings preserved.
Signed Date 17th May 2019

Deputy Upper Tribunal Judge Mandalia

TO THE RESPONDENT
FEE AWARD
I have allowed the appeal but as no fee is payable, there can be no fee award.

Signed 17th May 2019

Deputy Upper Tribunal Judge Mandalia