Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01280/2016

THE IMMIGRATION ACTS

Heard at Birmingham Sheldon Court
Decision Promulgated
On 14 March 2017
On 22 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE McCARTHY

Between

syeda robella abbas
(NO ANONYMITY ORDER)
Appellant
and

SECRETARY OF STATE FOR the HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr C Lane, instructed by Genesis Law Associates Ltd
For the Respondent: Mr D Mills, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant appeals to the Upper Tribunal against the decision and reasons statement of First-tier Tribunal Judge Chapman that was issued on 30 August 2016.
2. The appellant was born on 17 December 1982 and is a citizen of Pakistan. She arrived in the UK on 14 September 2014 in possession of a EEA family permit to join her husband. Her marriage ended on 26 February 2015. She made a protection claim on 3 August 2015 because she claims to have a well-founded fear of persecution in Pakistan from her husband’s family against whom she had no effective protection. The respondent refused that application on 1 February 2016 and it is against that decision that she appealed.
3. The appellant’s principle argument is that Judge Chapman misunderstood several factual matters central to her claim and thereby erred in his assessment of her credibility. Because the credibility finding is not sound, the appellant argues the decision cannot stand and the appeal must be heard afresh. Mr Mills accepts factual errors were made but argues they are immaterial to the outcome because Judge Chapman gave other reasons for his decision, which are unaffected by the factual errors.
4. Mr Mills accepted Judge Chapman made a factual error in relation to his understanding of what the appellant said at question 4.2 of her screening interview. The appellant is recorded as saying: I can not return to Pakistan as I fear from my husbands family and my own family will not accept me there as I am not living with my husband anymore and his family will not accept me as I do not want to live the way they do. I can not live the way they want me to live with them because they want me to live as his second wife.
5. Although Judge Chapman recites the first part of this at paragraph 45 of his decision and reasons statement, in paragraph 46 he comments: I find this significant in two respects. Firstly, there is no mention of any threats from either the Appellant’s own, or her husband’s family. Secondly, there is the comment that the Appellant does not want to live as her family do in Pakistan. I find this to be at a significant comment, and one that, in my view, is the main motivation behind the Appellant’s claim.
6. It is obvious to me that Judge Chapman has drawn an inference from the appellant’s comments that he is not entitled to draw because he has misunderstood what she said. It is clear from the appellant’s answer that she did not want to live in the way her husband’s family lived. The second sentence of her answer, which is not cited by Judge Chapman, makes this clear because it provides the reason why the appellant did not want to live as her husband’s family live. She did not want to be her husband’s second wife.
7. It is also obvious that Judge Chapman gave significant weight to his misunderstanding of the appellant’s evidence because he describes it as revealing the appellant’s “main motivation”. By so doing, I conclude he has described the appellant as being an economic migrant rather than a refugee, which may have further clouded his assessment of the facts.
8. Before I consider whether this error might undermine the entirety of Judge Chapman’s credibility findings, I examine another factual error Judge Chapman is said to have made in relation to the appellant’s account recorded at question 4.2 of the screening interview. In paragraph 47 of his decision and reasons statement, he says the appellant failed to mention threats from her family. Mr Lane advised me that he has been through the appellant’s accounts several times and has found no reference to the appellant claiming to have been threatened by her own family. Mr Mills did not suggest otherwise.
9. I have been through the accounts and like Mr Lane I cannot find any reference. I acknowledge there are several instances where the appellant says her family were threatened and that she was ostracised from her family. But neither of these claims is the same as suggesting the appellant failed to mention at her screening interview that was threatened by her family. She has never made that claim and therefore there could be no such failure. Again, there is concern that Judge Chapman drew an adverse view of the appellant’s credibility from something she had not said.
10. I turn to the question or whether these factual errors undermine the entirety of Judge Chapman’s reasons for not believing the appellant. In paragraphs 47 and 48, Judge Chapman decided he could not believe the appellant’s accounts because he could not reconcile how she knew her family had threatened her whilst also claiming she was ostracised from them. I have found that Judge Chapman was mistaken about the appellant saying she was threatened by her family and this error therefore undermines the finding that there was a need to reconcile her account to be ostracised. It follows that the findings in paragraphs 47 and 48 cannot be upheld.
11. In the middle of paragraph 50, when concluding that the appellant could not be believed about having received threats from her husband’s family, Judge Chapman repeated his finding that the appellant had not mentioned threats in her screening interview. The fact Judge Chapman returned to this finding means it was in his mind and was part of his decision-making process. It follows that the findings in paragraph 50 cannot be upheld.
12. I am aware the appellant had two witnesses, neither of whom was found to be able to give relevant and reliable evidence about the appellant’s circumstances in Pakistan. Those findings are not criticised by either party and those findings are not affected by Judge Chapman’s factual errors. I realise their evidence might have been treated differently had Judge Chapman not made the factual errors he did.
13. Judge Chapman gives no reasons for rejecting the appellant’s claims other than they are vague and inconsistent. But what Judge Chapman took to be vagueness may reflect his misunderstanding of the appellant’s claims. What Judge Chapman took to be inconsistencies, again might be the result of his misunderstandings of the claim.
14. I conclude that Judge Chapman’s findings that the appellant had not told the truth about what she fears on return to Pakistan are not sustainable and must be set aside. Because his findings about the risks the appellant faces on return to Pakistan are based on her not having given a truthful account, they too must be suspect. In other words, I find the damage to Judge Chapman’s credibility findings are too great to be repaired.
15. It follows that I set aside Judge Chapman’s decision and reasons because they are infected by factual errors that amount to errors of law. In line with the Senior President of Tribunal’s Practice Statements, it is appropriate to remit this appeal to the First-tier Tribunal for a fresh hearing. Nothing is preserved from Judge Chapman’s decision and reasons statement.
16. No anonymity direction was given by Judge Chapman and I find there is no reason to make such an order in the Upper Tribunal.
Decision
The decision and reasons statement of First-tier Tribunal Judge Chapman contains errors of law and is set aside.
I direct the appeal is remitted to the First-tier Tribunal for a fresh hearing before a judge other than Judge Chapman.
The parties are at liberty to provide further evidence if it is received by the First-tier Tribunal at least seven calendar days before the hearing.
The First-tier Tribunal may set other directions for the case management and disposal of the remitted appeal.

Signed Date 17 March 2017

Judge McCarthy
Deputy Judge of the Upper Tribunal