Tribunal decisions

The decision

IAC-AH-DP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: pa/02604/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 24 October 2016
On 07 November 2016

Before

UPPER TRIBUNAL JUDGE RINTOUL

Between

M N
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Claimant: Mr T Hodson, Elder Rahimi solicitors.
For the Respondent: Mr T Melvin, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The Appellant appeals with permission against the decision of First-tier Tribunal Judge Baldwin, promulgated on 6 July 2016, in which he dismissed his appeal against the decision of the respondent made on 30 October 2015 to refuse him leave to enter consequent upon a refusal of asylum and humanitarian protection.
2. I maintain the anonymity order made by the First-tier Tribunal. I am satisfied that the reasons for making that order still apply and neither party has asked me to vary that order.
3. The appellant is a citizen of Iran and is a Sunni Muslim. He married a Shia Muslim without the consent of his in-laws who beat him and at various points tried to track them down elsewhere in Iran. He was again attacked on 31 May 2015 when he had returned to his home area in an attempted reconciliation. His brother was seriously injured in the attack. Following that incident, the appellant and his wife fled to Oromieh where they stayed for five days before leaving Iran.
4. The appellant and his wife fear persecution on return and, given that the appellant's father-in-law was a Colonel in Sepah (the Revolutionary Guards), would be able to track them down again on return
5. The respondent's case is set out in the Refusal Letter dated 30 October 2015. In summary, she was not satisfied that the appellant is a Sunni Muslim given that he had said in his screening interview that he was a Shia Muslim nor did she accept that, as the marriage had been legally registered in Iran, which requires the official consent of the wife's father, that he had neither given this or that he had attacked them as a consequence of the marriage. Noting also inconsistencies in the appellant's account of where they had lived after they had fled from the home area, she was not satisfied that the appellant had been attacked by his wife's family. In addition, it was not accepted that the appellant had left Iran illegally.
6. Accordingly, the respondent was not satisfied that the appellant was at risk on return, noting that in any event there would be a sufficiency of protection and /or that the appellant would be able to relocate within Iran to an area where he would not be at risk. The respondent was not satisfied either, having had regard to the relevant Country Guidance, that the appellant would be at risk on return were it accepted that he had left illegally.
7. The respondent was not satisfied that that it would be in breach of the United Kingdom's obligations pursuant to article 8 of the Human Rights Convention to return the appellant, his wife and their child to Iran.
8. The judge did not accept:
(i) that the appellant is a Sunni Muslim, noting [23] that in his Screening Interview he had said he is Shia Muslim, rejecting his explanations as to why this had been incorrectly recorded;
(ii) that the appellant's in-laws attacked him in Esfahan, given his answers in his Asylum Interview [25];
(iii) that the appellant's brother had been injured during the attack in May 2015 given the absence of medical evidence to that effect; and, that it was reasonable to have expected him to produce this evidence;
9. The judge found that: -
(i) the appellant had failed to mention until the hearing that his in-laws had asked questions about him in Esfahan and have also failed in his Screening Interview to mention the core feature of his claim, that is that his in-laws disapproved of his marriage on religious grounds;
(ii) it was possible that the appellant's family disapproved of his relationship and that the couple had perhaps secured a Marriage Certificate through bribery, but that if a Colonel in Sepah's intelligence branch could not in over a decade track down a couple in Iran, it appeared he had no interest in doing so or that his ability to do so was limited; that any connection between the appellant's brothers claimed injuries and the marriage is not proven, nor were the injuries, nor had it been explained why the appellant should be left virtually unscathed and the brothers were seriously injured;
(iii) the appellant had failed to show that he was at risk in his home area on account of his religion or marriage; or, that they been tracked down when they moved away, or would be tracked down again if they moved away again, it not being unduly harsh to expect them to do so;
(iv) having had regard to SSH & HR (illegal exit; failed asylum-seeker) Iran CG [2016] UKUT 00308 (IAC), the appellant was not at risk on account of his manner of leaving Iran or on account of being a failed asylum-seeker.
10. For these reasons, the judge dismissed the appeal, dismissing it also on article 8 grounds, that ground not being pursued at the appeal.
11. The appellant sought permission to appeal on the grounds that the judge had erred:
(i) in failing to take proper note of the fact that the interpreter at the Screening Interview had been an Afghan Dari speaker rather than an Iranian Farsi speaker, and thus the judge had erred in relying on the Screening interview
(ii) in speculating that as the appellant had in his main Asylum Interview requested that his name as recorded in the Screening Interview should be corrected this indicators current representatives had gone through the record of the Screening Interview and that thus he had had a proper opportunity of correcting the error as to his religion, unnecessarily asking rhetorical questions;
(iii) In requiring [25] the appellant when asked if he had seen his in-laws in Esfahan or Karaj, and when he had truthfully answered that he had not, to have volunteered the information that others had reported people asking about him;
(iv) In improperly requiring the appellant to provide a document, preparation of his brothers interviews where the agent persecution had strong connections to the security forces of the country in question;
(v) In concluding that the appellant's father-in-law had not tracked down the couple in Iran that was contrary to the cat that he had been able to do so;
12. On 5 September 2016 Upper Tribunal Judge Plimmer gave permission to appeal stating: -
"The FTT has expressly considered the appellant's explanation regarding the use of the Dari (not far see) interpreter, and was entitled to make the findings at 23. The FTT was entitled the particular circumstances of this case to find it difficult to believe that the family would not be able to get a medical note confirming the bare details of the brother's admission. There has been no arguable requirement of impermissible corroboration.
Only para 20 of the grounds of appeal is arguable. It is difficult to reconcile the finding that a colonel could not track down the couple with the detailed evidence that this is what is alleged to have happened."
13. As Mr Hodson submitted, the evidence of the appellant and his wife, summarised at [17] and [18] contains accounts of people coming to look for the appellant. It is also clear that the judge did at [28] proceed on the basis that the father-in-law had been unable to track down the couple. There is, in this part of the decision, no attempt to engage with the evidence to the contrary.
14. Mr Melvin, for the respondent, submitted that the decision was nonetheless sustainable, it being clear from [16] that the judge was aware of the claims that the appellant and his wife had been tracked down. He submitted further that at [25] the judge correctly recorded that the appellant had not in his asylum interview mentioned that his in-laws had tracked him to Esfahan, and had said he had not seen them. The judge had, properly, considered the omission to be very significant.
15. Mr Melvin submitted further that, as the judge noted at [27], the appellant had not mentioned being tracked to Esfahan until he had written his witness statement. The judge had thus been entitled not to accept that part of the account, and to note that the appellant had not mentioned in his screening interview the core of his account.
16. The difficulty with the respondent's submissions is that, as Mr Hodson submitted, the appellant had in fact mentioned that his whereabouts had been found out by his in-laws in his Screening Interview at [4.1]. That is something which the judge omitted from his consideration of the evidence of being tracked. In that context, his conclusions about the failure to mention being traced at [25] and [27], are unsafe, as they proceed from an incorrect assessment of the evidence. Accordingly, the judge's observation that father-in-law could not track the appellant down is unsustainable.
17. Given that the judge found that parts of the case were not implausible [28], and given that for the reasons noted above, large parts of the credibility assessment are unsafe, I am satisfied that the decision did involve the making of an error of law, and I set it aside.
18. As it will be necessary to make fresh findings on all material matters, I remit the decision to the First-tier Tribunal to make a fresh decision on all matters.

SUMMARY OF CONCLUSIONS
1. The decision of the First-tier Tribunal involved the making of an error of law and I set it aside.
2. I remit the decision to the First-tier Tribunal for a fresh decision on all issues. None of the findings of the First-tier Tribunal are preserved.

Signed Date: 4 November 2016

Upper Tribunal Judge Rintoul