Tribunal decisions

The decision

UPPER Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00763/2016

THE IMMIGRATION ACTS

Heard at: Field House
Decision and Reasons Promulgated
On: 9 March 2017
On: 28 March 2017

Before
Deputy Upper Tribunal Judge Mailer

Between
Mrs Banaz Faraj Mohammed Ahmed
no anonymity direction made
Appellant
and

secretary of state for the home department
Respondent

Representation
For the Appellant: Mr I Palmer, counsel (instructed by Barnes Harrild & Dyer)
For the Respondent: Mr L Tarlow, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a national of Iraq, born on 22 January 1980. Her appeal against the decision of the respondent dated 12 January 2016 refusing her application on asylum and human rights grounds, was dismissed by the First-tier Tribunal in a decision promulgated on 1 August 2016.
2. The Judge found that she had not proved that she would be at risk on return to Iraq on account of her brothers' wishing to kill her. He noted that the appellant's husband attended the hearing but did not give evidence. Nor did he mention in his statement the difficulties that the appellant had in Iraq with her brothers. The Judge found it difficult to understand her evidence where she stated that her brothers had agreed to the marriage and wanted her to join her husband in the UK but yet they stopped her going to live with him in the period after the marriage [17].
3. The Judge considered that her immigration history did not assist her claim. She gave different names for her husband (although they were both born on 31 December 1974). The Iraqi identity card which she used to obtain her passport was found not to be genuine. That undermined her credibility, indicating that she was prepared to use deceit to enter the UK. Her statement that she had never been refused a visa in the past was untrue. He considered that the appellant should have claimed asylum in Ireland – [18].
4. He 'considered' at paragraph [20] that there is considerable concern in relation to the supposed relationship between the appellant and her husband. His reluctance to give evidence on her behalf together with the anomalies in the form she presented in the past and their willingness to use false documents or to rely on the application form severely undermined her credibility. He did not accept that she had proved that she was in a genuine relationship with Mr Hamazaidan.
5. The effect of his decision was that he did not accept that there would be any interference with family life for the purpose of Article 8 - [23]. Nor were there compelling circumstances. He applied the approach in Razgar. He referred to sections 117A to 117D of the Nationality, Immigration and Asylum Act 2002. He dismissed her Article 8 claim.
6. On 12 December 2016 Upper Tribunal Judge Bruce granted the appellant permission to appeal, stating that it is “certainly arguable” that the Tribunal erred in going behind an express concession made by the respondent. The remaining grounds, concerning the appellant's position in Baghdad, may have less merit but she granted permission on all grounds.
7. In the respondent's Rule 24 response, the appellant's appeal was opposed “only in part.” It was unfair to go behind the concession made in the reasons for refusal, where the nature of the relationship between the appellant and her husband was accepted. That is especially so, when this was not put to the appellant at the hearing. It was thus conceded that the Article 8 assessment was flawed and needs to be re-made.
8. Mr Palmer on behalf of the appellant adopted the grounds of appeal prepared by counsel who represented the appellant before the First-tier Tribunal. He submitted that the findings by the Judge at [17] should be re-assessed in the light of the concession made regarding the genuineness of the relationship. This goes to the core of the asylum decision as well. In particular, the Judge drew adverse conclusions based on the fact that her husband attended the hearing but did not give evidence; nor did he mention in his statement the appellant's difficulties in Iraq with her brothers.
9. He submitted with regard to [20] that the concern with regard to “the supposed relationship” between the appellant and her husband together with their willingness to use false documents severely undermined her credibility. The findings at paragraphs [17-20] are “intertwined”. There had always been a genuine marriage.
10. He submitted that that both the asylum and Article 8 appeals should be remitted to the First-tier Tribunal.
11. On behalf of the respondent, Mr Tarlow relied on the Rule 24 response.
12. He noted that the Judge did not deal with the contention in the reasons for refusal that the appellant's fear of persecution engaged the UK's obligations under the Convention.
13. He sumitted that the asylum element of the decision was sound. The appellant's credibility was comprehensively rejected by the Judge at [17-18].
14. Accordingly, there was no reason to suppose that she did not have family members, including her brothers, to support her upon her return. She had entered the UK clandestinely to be reunited with her husband after previously having been refused entry to do so lawfully in 2014.
Assessment
15. There is some force in Mr Tarlow's submission that the appellant's credibility was comprehensively rejected by the Judge at [17-18]. However, against that is the fact that the respondent had conceded the genuineness of her relationship with her husband. That had never been placed in issue before the First-tier Tribunal Judge. Nor did the Judge indicate to the parties that he intended to go behind that concession. It was upon that basis that the appellant presented her claim.
16. The Judge at [17] noted that her husband attended the hearing but did not give evidence or mention her difficulties in Iraq with her brothers.
17. His subsequent adverse credibility findings related in part to the “supposed relationship” between the appellant and her husband [20]. He again noted the reluctance of her husband to give evidence on her behalf stating that these matters undermined her credibility.
18. As submitted by Mr Palmer, his findings relating to the husband which affected the appellant's credibility, might also have affected his findings in the asylum claim.
19. In the circumstances, I am satisfied that the safest course would be to set aside the entire decision. The parties are in agreement that there should be a “de novo” hearing before the First-tier Tribunal.
20. In the circumstances, I remit the matter to the First-tier Tribunal for a fresh decision to be made in respect of international protection and Article 8 of the Human Rights Convention.

Notice of Decision
The decision of the First-tier Tribunal involved the making of an error on a point of law and is set aside.
The appeal is remitted to the First-tier Tribunal (Hatton Cross) for a fresh decision to be made before another Judge.
No anonymity direction is made.

Signed Date 26 March 2017
Deputy Upper Tribunal Judge C R Mailer