Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00844/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 18th November 2016
On 21st November 2016

Before

UPPER TRIBUNAL JUDGE MARTIN

Between

MR SHWAN ADAMI
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mrs C Johnrose (agent for Broudie Jackson & canter, Solicitors)
For the Respondent: Mr A McVeety (Senior Home Office Presenting Officer)

DECISION AND REASONS

1. This is an appeal to the Upper Tribunal, with permission, by the Appellant in relation to a Decision and Reasons of the First-tier Tribunal (Judge I F Taylor) promulgated on 30th June 2016.

2. The Appellant is a citizen of Iran born on 1st August 1990. He entered the UK clandestinely in May 2015 and claimed asylum.

3. His claim for asylum was based on the fact that he is of Kurdish ethnicity and claimed to be a member of the Kurdish Democratic Party of Iran (KDPI) and that he had been working for them in Iran. His involvement came to the attention of the authorities and as a result he fled the country.

4. The First-tier Tribunal Judge heard oral evidence from the Appellant and he also had a letter of support from the KDPI in Paris.

5. The Judge, in his findings, referred to a number of discrepancies in the Appellant's claim and did not accept the Appellant's claims to have done for the KDPI in Iran.

6. So far as the letter from KDPI is concerned the Judge noted that it was potentially of great significance because it confirmed the Appellant to be a supporter of the KDPI; that oppression had been exercised against him by the regime of the Islamic Republic of Iran; that he had been forced to flee Iran and would be in danger if returned.

7. The Home Office Presenting Officer before the First-tier Tribunal relied upon a Danish Refugee Council Report on Iranian Kurds dated September 2013 which set out the procedure for obtaining letters of recommendation issued by the KDPI. That procedure was not challenged by Mrs Johnrose on behalf of the Appellant. The procedure is that, following enquiries with the party's headquarters at Khoysanjak Camp in KRI the letter of recommendation will be sent by fax directly to the asylum administration of the country in question and it will never be handed to the recommended person himself. If the asylum administrator requests the original letter the KDPI representative will send a letter by post directly to the asylum administration.

8. The Judge noted at paragraph 25 that the procedure had not been followed in this case as the Appellant's evidence was that he had requested the letter but it had been sent by fax directly to his solicitors.

9. The letter concerned was produced only on the morning of the hearing together with its translation. The Appellant said that it had been sent direct to his solicitors and he had not seen it before.

10. At paragraph 26 the Judge noted that Mrs Johnrose had urged him to make positive findings of fact with regard to the provenance of the document as set out by the Appellant in his oral evidence. However, he went on to say that given the clear disparity between the procedure set out in the Danish Refugee document and the procedure in relation to the Appellant it was entirely reasonable to expect some evidence from the Appellant's solicitors to confirm or deny what in fact happened. The Judge said that this evidence could be obtained both quickly and easily and would not necessarily require the case to be adjourned to another date. He went on to say that despite his misgivings, which he pointed out on several occasions to Mrs Johnrose, there was no enthusiasm to obtain any evidence from the Appellant's solicitors with regard to this important document. He went on to say that if necessary he would have been content to adjourn the case to another day but there had been no request for an adjournment.

11. The Judge went on to disbelieve that the Appellant's solicitors had not shown the letter to the Appellant prior to the hearing as it was dated April 2016.

12. The Judge went on to find he could place no reliance on that document.

13. At paragraph 27 he relied upon the Appellant being unwilling to obtain further evidence from his own solicitors to confirm the account he had given in his oral evidence about the provenance of the document and also relied on the other adverse findings to find the Appellant to be without credibility.

14. The grounds seeking permission to appeal to the Upper Tribunal assert that the First-tier Tribunal erred in placing a requirement of corroboration and on the absence of corroboration to make adverse findings. The grounds also assert that the Judge erred in failing to apply the principles of MA Switzerland, Application no. 52589/13 in that the Secretary of State ought to have checked the authenticity of the letter if there been doubts as to its authenticity. Before me Miss Johnrose withdrew the second ground as the Secretary of State had not been provided with the letter prior to the hearing.

15. Attached to the application for permission to appeal was a copy of Mrs Johnrose's record of proceedings from the First-tier Tribunal hearing as it related to the Appellant's oral evidence regarding the document in question and the cross examination. There is also a witness statement by the solicitor with conduct of the case confirming that she had not provided a copy of the document to the Appellant and confirming that it was received by fax on an unknown date in April without a cover sheet and that an original letter was never sent.

16. I indicated to Mrs Johnrose that the additional evidence attached to the application could be relevant only if I were to find that the Judge made an error of law in the Decision and Reasons. Mrs Johnrose sought to rely on the case of E v SSHD [2004] WCA Civ 49 as authority for her submission that I ought to admit the new evidence in determining the error of law issue.

17. I find that case does not assist Mrs Johnrose. It is not asserted that the Judge made a mistake of fact which was disclosed only by new evidence. What E did was confirm that the Ladd and Marshall principles apply save in very specific circumstances, which are inapplicable to this current case.

18. The Ladd and Marshall principles are, in summary: first, the fresh evidence could not have been obtained with reasonable diligence for use at the trial; secondly, that if given, it probably would have had an important influence on the result; and, thirdly, that it is apparently credible although not necessarily incontrovertible. Furthermore, as a general rule the fact that the failure to adduce the evidence was that of the party's legal advisers provides no excuse (Al-Mehdawi v Home Secretary [1990] IAC 876.

19. E is of course now very old and the court was considering Procedure Rules which no longer exist. The court was also considering whether the Tribunal ought to have admitted evidence that was submitted after the hearing but before the decision was promulgated; in other words while the Tribunal was still seized of the matter. In this case the hearing took place on 13th June 2016 and the decision was promulgated on 30th June 2016. The additional evidence was only produced with the application for permission to appeal dated 14th July 2016. The First-tier Tribunal Judge therefore was given no opportunity to decide whether to consider it or not.

20. Furthermore, it is abundantly clear from the Judge's decision that he had made clear, during the course of the hearing, his concerns over that document and its provenance and offered Mrs Johnrose the opportunity to make enquiries. It would have been an easy matter for Mrs Johnrose to have made a telephone call to the solicitors or alternatively to have sought an adjournment. She did neither. Before me, Mrs Johnrose argued that she had not seen the document prior to the hearing herself and therefore could not have made any enquiries. In my view that simply emphasises the need for her to have asked for the opportunity to make those enquiries when the situation arose. She did not do so. Nor was the evidence from the solicitor adduced after the hearing but before the appeal was determined.

21. The evidence therefore falls foul of the Ladd and Marshall principles. Furthermore, the evidence itself does no more than confirm that the Appellant had not seen the document prior to the hearing. It adds no weight to the document itself and has no bearing on any consideration of its authenticity. Indeed, the document itself which is contained in the Appellant's bundle, contains no indication of the fax number from which it was sent. In short, it could have originated from anywhere.

22. Not only did the Judge reject the document on the basis of its lack of provenance and corroboration from the solicitors but he also paid particular attention to the Danish Refugee Council document and he set out paragraph 2.1.5 of that document in full in his Decision and Reasons, which reads as follows:-

"Regarding letters of recommendation, KDPI's representative in Paris informed the delegation that when the representation in Paris is requested to verify whether a person is a party member or sympathiser, it will ask the party's headquarters in Khoysanjak camp in KRI to investigate the case. Upon receiving the answer from Khoysanjak, the representation in Paris will issue a letter of recommendation. In the letter, in addition to the name of the person in question, it is stated in French whether the recommended person is a KDPI member or a sympathiser. The letter of recommendation, which is signed by KDPI's representative in Paris, will be sent by fax directly to the asylum administration in the country in question; it will never be handed to the recommended person himself. If the given asylum administration requests the original letter, the KDPI representation in Paris will send a letter by post directly to the asylum administration? KDPI's representative in Paris has seen many forged versions of the letter of recommendation delivered to asylum administrations in European countries. KDPI's representative in Paris pointed out KDPI is concerned about forged documents in relation to asylum applications particularly as the Iranian government may send undercover agents to Europe to apply for asylum in KDPI's name."

23. Thus it was not simply difficulties over the document's provenance and doubting the Appellant's claims as to how it was obtained that led to its rejection but also the fact that it did not match the description from the body itself as to how such documents are brought into being.

24. Accordingly, the Judge was entitled to place no weight on that piece of evidence for the reasons that he gave.

25. The new evidence as to the solicitor's role in failing to send it to the Appellant therefore would not have assisted. Mrs Johnrose's argument that the Appellant should not be prejudiced by failures of her solicitors or indeed herself in seeking an adjournment, is also without merit given the other difficulties that I have identified with that document.

26. The Judge in this case gave careful consideration to the claim as a whole, noted and made adverse credibility findings in relation to the Appellant's claim itself, which have not been challenged, and rejected the "KDPI" letter for the reasons he gave all of which were open to him on the basis of the evidence before him.

27. The First-tier Tribunal's decision is not tainted by any error of law, material or otherwise.

28. The Appellant's appeal to the Upper Tribunal is dismissed.

29. There was no application for an anonymity direction and I see no justification for making one.

Signed Date 18th November 2016

Upper Tribunal Judge Martin