Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00689/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 28th October 2016
On 2nd December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

MS EHTERAM [K]
(ANONYMITY DIRECTION NOT MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr M Moriarty, Counsel
For the Respondent: Mr P Armstrong, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a citizen of Iran born on 26th March 1945. The Appellant visited the UK on three occasions between 2002 and 2015 on visit visas. On the first two of these she abided by the terms of the visa. On the third visa which was issued on 27th May 2015 valid from 5th June 2015 to 5th December 2015 whilst during the course of that visit whilst residing with her daughter in Kent she attended the Asylum Intake Unit at Croydon on 3rd September 2015 and claimed asylum.
2. The basis of her claim for asylum was that she had a well-founded fear of persecution in Iran on the basis of a particular social group namely that she is a woman in Iran who had committed adultery and that she had fears if she is returned to Iran she would face mistreatment as a result of that adultery and that her husband was aware of and had reported the matter to the authorities in Iran. The Secretary of State refused the Appellant's application issuing Notice of Refusal on 12th January 2016.
3. The Appellant appealed and the appeal came before Judge of the First-tier Tribunal Roopnarine-Davis sitting at Taylor House on 4th July 2016. In a decision and reasons promulgated on 14th July 2016 the Appellant's appeal was dismissed on both asylum and human rights grounds and the Appellant was found not to be in need of humanitarian protection.
4. On 27th July 2016 Grounds of Appeal were lodged to the Upper Tribunal. On 8th August 2016 First-tier Tribunal Judge Fisher refused permission to appeal stating that the grounds were no more than a disagreement with the judge's finding and an attempt to explain matters further and that the judge reached conclusions which were open to her on the evidence and all of her findings were adequately reasoned.
5. Renewed Grounds of Appeal were lodged. They mirror the original grounds. On 21st September 2016 Deputy Upper Tribunal Judge Taylor granted permission to appeal finding that it was arguable that the judge had failed to make clear and reasoned credibility findings firstly by erroneously conflating her own view of the plausibility of the account with a perceived lack of credibility, secondly effectively attempting to put herself in the position of "a reasonable abusive Muslim husband in Iran" and thirdly failed to give adequate reasons for rejecting the account of the Appellant's daughter.
6. On 6th October 2016 the Secretary of State responded to the Grounds of Appeal under Rule 24. The Rule 24 response contends that the judge gave a comprehensive determination, considered the evidence including the oral evidence given at the hearing and gave cogent reasons for not accepting that the Appellant did not commit adultery and would not be at risk on return. The Rule 24 response goes on to contend that the grounds in essence are a mere disagreement with the judge's findings and that there are no material errors of law in the determination.
7. It is on that basis that the appeal comes before me to determine whether or not there is a material error of law in the decision of the First-tier Tribunal Judge. The Appellant appears by her instructed Counsel Mr Moriarty. Mr Moriarty is familiar with this matter. He appeared before the First-tier Tribunal. The Secretary of State appears by her Home Office Presenting Officer Mr Armstrong. In addition I am assisted in this matter by a skeleton argument drafted by Mr Moriarty and lodged on behalf of the Appellant.
Submissions/ Discussion
8. Mr Moriarty starts by saying that there are three distinct errors in the decision of the First-tier Tribunal Judge. He points out that at paragraph 16 of the First-tier Tribunal Judge's decision that she had noted that the Appellant's oral evidence was expressed clearly, given in an open manner and largely consistent with her previous evidence. He further sets out that the First-tier Tribunal Judge considered that the Appellant presented as "a somewhat naive and trusting person" whose explanation for her reasons for marrying her husband were "credible and consistent in the context of her account." He reminds me that the marriage in question is the Appellant's second marriage and that she married at the age of 64 and he submits that the judge's factual finding is unreasoned and the finding by the First-tier Tribunal Judge that it is incredible that the Appellant would have had an affair with her second husband when he proved to be controlling and abusive is not one that is sustainable in fact or in law. On the contrary he contends that it is highly plausible that that scenario could have happened.
9. He takes me to paragraph 21 of the decision and that the judge's choice of words are at best unfortunate and at worst completely improper by stating that it "beggars belief" (the judge's words) that the Appellant and the person with whom she is purported to have committed adultery would go out in public together and ignore the attendant risk that this would come to the attention of her husband in context of his character. He points out that the judge has again unfortunately used this phrase at paragraph 26 when referring to the husband's temperament and the fact that he did not confront her about the purported adultery until she threatened to divorce him until after she arrived in the UK.
10. Mr Moriarty takes me to paragraph 6 of his skeleton argument and some of the factual findings set out at paragraphs 24 and 25 of the judge's decision. He states that these findings in particular the fact that the judge has made an assertion that there was direct evidence of a relationship is in fact wrong on the evidence that was presented and further at paragraph 30 the judge has made a finding that the Appellant can just move out of her home in Iran and live elsewhere in rented accommodation or with family members in Tehran. He points out that there is absolutely no basis whatsoever for such a finding and there is no corroborative evidence relating to it.
11. He further points out that there is direct reference within the Rule 24 to the age of the Appellant and submits that age is not a cogent reason for findings and submissions made by the Secretary of State. He contends that the judge overall has failed to give full and proper anxious scrutiny to the Appellant's claim. He submits that it has been shown that the Appellant has an abusive husband in Iran and he relies on the guidance given in HK v SSHD [2006] EWCA 1037 and the Court of Appeal in Y v Secretary of State for the Home Department [2006] EWCA 1223 as to the approach to be adopted by the judiciary.
12. Further he reiterates that both the Appellant's daughters are British citizens with impeccable immigration histories, that they gave detailed and consistent oral testimony that their maternal uncle had recently informed them over the phone that the Appellant's husband had carried out his threat of reporting the Appellant to the Iranian authorities. He submits that there is no suggestion that their evidence has not been consistent and that the sole reason for rejecting their account was that - paragraph 27 - the continuing relationship between the Appellant's daughters and her husband's son also undermined the claim. He submits that this is neither a coherent reason nor factually accurate. He asks me to find that there are substantial errors of law within the decision of the First-tier Tribunal, to set aside the decision and to remit the matter back to the First-tier Tribunal for rehearing.
13. Mr Armstrong firstly starts by conceding two points:
(a) That the use of the phrase "beggars belief" is a phrase that should not be used within a decision; and
(b) That it is inappropriate for the Secretary of State within her Rule 24 response to make reference to the Appellant's age.
Having said all that he points out that the judge heard the evidence and it was up to the judge to make her findings. He submits that without further evidence being available the judge was entitled to reach the findings that she did and that the submissions made by Mr Moriarty on her behalf amount to little more than disagreement. He relies on such submissions and those set out within the Rule 24 response. He asks me to dismiss the appeal.
The Law
14. Areas of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on fact or evaluation or to give legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
15. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue of argument. Disagreement with an Immigration Judge's factual conclusion, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge's assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence which was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible. Nor is it necessary to consider every possible alternative inference consistent with truthfulness because an Immigration Judge concludes that the story is untrue. If a point of evidence of significance has been ignored or misunderstood, that is a failure to take into account a material consideration.
The Judicial Approach
16. The approach to be adopted by judges is firstly set out in HK v SSHD [2006] EWCA 1037 where Lord Justice Neuberger said that an Appellant's account should not be rejected merely on the basis that it is not credible or plausible when making such assumptions largely on conjecture and speculation.
17. Such an approach was also endorsed by the Court of Appeal in Y v Secretary of State for the Home Department [2006] EWCA 1223 where Keene LJ cautioned Immigration Judges against
"finding an account to be inherently incredible, because there is a considerable risk that he will be over-influenced by his own views on what is or is not plausible, and those views will have inevitably been influenced by his own background in this country and by the customs and ways of our own society. It is therefore important that the judge should seek to view an Appellant's account of events, in the context of conditions in the country from which the Appellant comes."
Findings on Error of Law
18. A proper approach to credibility requires an assessment of the evidence and of the general claim. In asylum claims, the relevant factors are firstly the internal consistency of the claim; secondly the inherent plausibility of the claim; and thirdly the consistency of the claim with external factors of the sort typically found in country guidance. It is, I accept, theoretically correct that a claimant need do no more than state his or her claim but that claim still needs to be examined for consistency and inherent plausibility. In nearly every case external information against which the claim could be checked will be available.
19. It is against that approach along with the guidance given to Immigration Judges in HK v SSHD and Y v Secretary of State for the Home Department that I consider the issue before me. There are two initial points which are conceded by Mr Armstrong. The use of the colloquial phrase "beggars belief" is not a phrase that should find its way into an Immigration Judge's decision. Secondly the implication that the chain of events is unlikely to have occurred due to the Appellant's age as set out within the Rule 24 response is unfounded and unsupportable. Neither factor however in themselves constitute material errors of law. The phraseology used by the Immigration Judge is unfortunate and inappropriate but it does set out her view and perhaps better wording could have been found. The judge has however at no stage within her determination gone on to suggest, as is implied by the Secretary of State, that the Appellant's age would be a factor to be considered as to whether or not adultery had taken place. Consequently neither of these factors per se constitute material errors of law.
20. The issue consequently remains as to whether there are material errors of law in the decision or whether the submissions made on the Appellant's behalf by Mr Moriarty amount, as Mr Armstrong submits, to no more than disagreement with the judge's decision. I accept the judge heard the evidence. However I am satisfied that there are errors within the decision which tainted her decision. I start in fact at the end of the decision. At paragraph 30 the judge has contended that she sees no reason why the Appellant could not return to Iran and live with her family or in rented accommodation. She may well have expressed a desire to do so within her witness statement but this appears to be a view merely expressed by the judge without giving any proper or due consideration to any evidence that was before her or certainly at least should have been considered before making such a finding.
21. Secondly there are factual findings which would appear to underpin the First-tier Tribunal's negative credibility conclusions that are erroneous. The assertion that the Appellant's original witness statement did not mention her husband's threat to report her adultery and that the Appellant only mentions such threat "when subsequently and specifically asked about it at interview" as set out at paragraph 24 is incorrect and I follow the paper trail relating to this as pointed out to me by Mr Moriarty. The assertion that there was not direct evidence that the Appellant's husband had ever named Mojtaba or anyone else as her partner is also wrong and I am referred to the appropriate documentation again relating to this. Thirdly in appearing to accept that the Appellant's husband might have threatened to report her adultery as set out at paragraph 25 of the decision and that the Appellant only formed the intention to divorce her husband after arriving in the UK and realising the impact that her marriage was having upon her - as set out at paragraph 26 - are matters that it is emphasised to me were consistently emphasised by the Appellant and her daughters throughout the appeal. The judge had failed to address the implication of these apparently positive factual findings and has failed to make findings thereon.
22. Mr Moriarty has taken me back to his skeleton argument before the judge at the First-tier Tribunal hearing and further reiterates that the Appellant's eldest daughter explained during her oral testimony that they had seen their stepfather's son (who lives in the UK) once, at a "small gathering", and that they tried to be civil but did not talk about their parents' problems. It would appear both from the decision and his submissions (which are not challenged in this instance by Mr Armstrong) that neither daughter was asked any questions about this by either the Respondent or the Judge. I accept that such evidence would on the face of it in its entirety be in keeping with Iranian societal norms and that it cannot properly be said to amount to an adequate reason as is put within the decision for rejecting the detailed, consistent and deeply personal oral evidence of both daughters in their entirety.
23. It is clear that the First-tier Tribunal Judge has formed a very strong view in this matter but I am satisfied that she has not gone through the appropriate approach and test for considering plausibility and consequently the credibility of the Appellant's testimony. That is not to say that on re-scrutiny of this matter another judge will come to a different decision to the original First-tier Tribunal Judge but it is clear that in the interests of fairness that further scrutiny should be given to this appeal. In such circumstances I find for all the above reasons that there are material errors of law in the decision of the First-tier Tribunal Judge and not mere disagreement. I set aside the decision of the judge and give directions hereinafter for the rehearing of this matter.
Notice of Decision

The decision of the First-tier Tribunal Judge contains material errors of law and is set aside.

Directions for the rehearing of this matter are given below.

1. That the appeal be remitted to the First-tier Tribunal sitting at Taylor House on the first available date 28 days hence with an ELH of three hours.

2. That none of the findings of fact are to stand.

3. That the appeal be heard by any Immigration Judge other than Judge Roopnarine-Davis.

4. That there be leave to either party to file an up-to-date bundle of objective and subjective evidence upon which they seek to rely and to serve a copy on the other party at least seven days prior to the restored hearing.

5. That a Farsi interpreter do attend the restored hearing.

No anonymity direction is made.

Signed Date 2nd December 2016

Deputy Upper Tribunal Judge D N Harris

TO THE RESPONDENT
FEE AWARD

No application is made for a fee award and none is made.

Signed Date 2nd December 2016

Deputy Upper Tribunal Judge D N Harris