Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00409/2016

THE IMMIGRATION ACTS

Heard at Newport
Decision & Reasons Promulgated
On 8 December 2016
On 16 March 2017
Prepared 8 December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE DAVEY

Between

Hemin [A]
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms S Caseley of Counsel instructed by Migrant Legal Project (Cardiff)
For the Respondent: Mr I Richards, Senior Presenting Officer

DECISION AND REASONS

1. The Appellant, a national of Iraq, appealed against the Respondent’s decision, dated 14 December 2015, to refuse his asylum claim and other claims. The appeal against that decision came before First-tier Tribunal Judge Clemes who, on 17 August 2016 dismissed the appeal. Permission to appeal was given on 20 September 2016 and the Secretary of State made a Rule 24 response on 1 October 2016.

2. A number of points are taken by the Appellant against the judge’s decision but the principal core issue is that the judge rejected the credibility of the Appellant on the basis that the story was essentially concocted and that the Appellant was not a credible witness who had given inconsistent accounts which had materially differed from others and other given: He was not a reliable witness of fact.

3. The judge also received evidence from a qualified expert called Mrs Guest whose particulars are given in her report. She addressed the plausibility of the claims made by the Appellant both as to events that occurred to him and historically those arising through the claimed link of his father with the Ba’ath Party in Iraq at the material time.

4. The judge in the findings at paragraphs 32 and 33 set out why he rejected the Appellant’s credibility. At paragraph 34 he said:

“The report of Ms Guest is supportive of the Appellant but – for the reasons I have set out above – I do not take it into account in my credibility assessment of him or his wife. For the other reasons set out above, I attach little weight to the report.”

5. It is plain that all decisions have to be written at least in some form of sequence but what is apparent from the way that is expressed by the judge and by his subsequent assessment of the expert opinion he had formed the view that the Appellant’s case was, as I have said, concocted not to be believed. Therefore he rejected the expert evidence without any further analysis of how the evidence read as a whole appeared to be. This was a problem originally identified as long ago as in Mbanga [2005] EWCA Civ 367 where medical evidence was excluded on the basis that the assessment of injuries faced were not to be believed because the Appellant’s account was not to be believed.

6. The further criticism of the way the judge has dealt with the expert evidence is partly a matter of asserting that there were misstatements of it but more importantly that the judge, not having looked at it in the round, therefore felt fortified in concluding that his adverse credibility findings were really the end of the matter.

7. I am satisfied that the Judge’s approach was wrong and that the evidence needed to be looked at as a whole: This did not happen. In the circumstances, although there are other points taken against the judge’s decision, I am satisfied that the Original Tribunal’s decision cannot stand and the matter will have to be re-made. The matter will be sent back to the First-tier Tribunal to be re-made.

DIRECTIONS

1. List for hearing – 3 hours.

2. Interpreter in Kurdish Sorani required.

3. List in the First-tier Tribunal not before First-tier Tribunal Judge Clemes.

4. Any further evidence to be filed to be served either in accordance with directions given at a CMR in the First-tier Tribunal or alternatively not later than 10 days before the further hearing of the re-making of the case.

Signed Date 15 March 2017
Deputy Upper Tribunal Judge Davey

P.S. I regret promulgation of this decision which was sent for typing on 8 December 2016 has been delayed because the case file was miss-located.