Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01124/2016

THE IMMIGRATION ACTS

Heard at Glasgow
Decision & Reasons Promulgated
On 8 February 2017
On 23 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE MURRAY

Between

Harem sharifi
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Loughran, Loughran & Co Solicitors, Glasgow
For the Respondent: Ms O'Brien, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant claims to be a citizen of Iran born on 16 December 1989. He appealed against the decision of the respondent dated 22 January 2016 refusing him asylum and humanitarian protection and refusing his claim on human rights grounds. His appeal was heard by Judge of the First-Tier Tribunal Kempton on 1 November 2016 and dismissed on all grounds in a decision promulgated on 15 November 2016.
2. An application for permission to appeal was made and permission to appeal was granted by Judge of the First-Tier Tribunal Keane on 9 January 2017. The permission states that the Judge made a material misdirection of law by mis-stating the standard of proof to be applied. Reference was made to paragraphs 6, 7 and 8 of the Judge's decision in which the Judge states that the appellant should demonstrate substantial grounds for believing that he would be exposed to a real risk of suffering serious harm if not granted humanitarian protection and that substantial grounds should be established, before the appellant's contentions in respect of human rights issues could be fairly accepted. The permission states that it is arguable that the standard of proof relating to humanitarian protection and human rights used by the judge was too high.
3. There is a Rule 24 response on file. In this it is pointed out that the appellant's nationality was not accepted by the Judge. She found him to be Iraqi. This is not disputed in the grounds. The response states that as a whole the appellant's claim was that he was Iranian. It is not clear what evidence in relation to Iraq was in front of the Judge. The Judge found the appellant not to be credible and gives reasons as to why she has come to this conclusion. The burden is on the appellant to make out his claim. In the decision the Judge found and gave adequate reasons for finding that the appellant had not discharged that burden.
The Hearing
4. The appellant's representative submitted that the Judge has clearly used too high a standard of proof relating to humanitarian protection and human rights and had she used the lower standard of proof of real risk, the outcome could have been different.
5. The representative submitted that the Judge does not believe that the appellant is from Iran but believes he is from Iraq. She submitted that this was raised before the Judge and because of this the Judge should have considered return to Iraq and the case of AA (Iraq) [2016] EWCA Civ 779. She submitted that this case was not before the Judge but as the appellant's nationality was an issue she should have had regard to this Country Guidance case.
6. The Presenting Officer referred me to the Rule 24 response. She submitted that she is relying on this response and that this is an appellant who totally lacked credibility in his evidence.
7. The Presenting Officer submitted that the Judge applied the correct standard of proof. She found the appellant to be a liar relating to his bio data and his nationality and she submitted that based on this the judge was entitled not to be satisfied with other aspects of the claim. She submitted that everything flows from that particular credibility finding.
8. The Presenting Officer submitted that there was no argument put to the Judge based on the said case of AA (Iraq). In any case the appellant states that he is not from Iraq.
9. The Presenting Officer submitted that there is no error of law in the Judge's decision. The judge found that the appellant's refugee claim could not succeed and that his bio data was not reliable. The Presenting Officer pointed out that in the record of proceedings and the skeleton argument only Iran is referred to.
10. The appellant's representative submitted that the burden and standard of proof is so fundamental that this must be a material error of law, regardless of credibility findings.
Decision and Reasons
11. This appellant has been found not to be from Iran by the Judge. She has given proper reasons for this finding. The appellant states that he is from Iran. There was nothing before the Judge relating to Iraq or any Iraqi cases as the appellant's appeal is based on him being from Iran. In these circumstances and based on the fact that the Judge found the appellant to be a liar, it was not necessary for her to consider the case of AA (Iraq). The skeleton argument before the judge made no mention of Iraq.
12. The Judge has used the correct standard of proof for the appellant's asylum claim at paragraph 6 of the decision and at paragraph 43 of the decision. At paragraph 43 the Judge states that the appellant does not engage the Refugee Convention or any Article of ECHR and that he has not engaged the Directive on humanitarian protection. She states "There is no real risk of persecution of the appellant if he is returned to Iraq". There was no evidence before the Judge that he would be at risk of persecution on return to Iraq. The judge has made her decision based on what was before her which she was entitled to do.
13. At paragraph 7 the Judge states that the appellant has to show that there are substantial grounds for believing the appellant would face a real risk of suffering serious harm if he is not granted humanitarian protection, if he is returned to the country of return, under paragraph 339C(iii) of the Statement for Changes in the Immigration Rules CM6918. When humanitarian protection is considered the same low standard of proof as for asylum claims applies. The appellant has to show that if returned he would face a real risk of suffering serious harm. This is what the judge has based her decision on. This is clear from her wording in paragraph 7. The judge finds that the core of the appellant's account is false so the appellant clearly has not shown that on return he would face a real risk of suffering serious harm.
14. With regard to paragraph 8 of the decision and the appellant's human rights claim, the judge states that the appropriate standard of proof is whether there are substantial grounds for believing the evidence. The judge does not believe the evidence. She has considered the Razgar case and made proper findings. Because the judge does not accept the core of the appellant's account there is no error in the way she has dealt with this.
15. None of this appellant's evidence is believed. The country where the appellant comes from is so fundamental to the rest of his evidence that when he is found to be lying about this there is no way that his appeal can succeed.
16. There is no material error of law in the Judge's decision and her decision, promulgated on 15 November 2016 dismissing the appellant's appeal on all grounds, must stand.

Signed Date

Deputy Upper Tribunal Judge Murray