Tribunal decisions

The decision

IAC-AH-SC-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02815/2015

THE IMMIGRATION ACTS

Heard at City Centre Tower, Birmingham
Decision & Reasons Promulgated
On 22nd February 2017
On 3rd March 2017

Before

DEPUTY upper tribunal JUDGE RENTON

Between

k s
(ANONYMITY DIRECTION made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr R Sharif of Fountain Solicitors
For the Respondent: Mr D Mills, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction
1. The Appellant claimed to be a citizen of Iran born on 1st July 1995. He entered the UK illegally on 7th July 2015 and applied for asylum. That application was refused for the reasons given in the Respondent’s letter of 30th October 2015. The Appellant appealed, and his appeal was heard by First-tier Tribunal Judge Fenoughty (the Judge) sitting at Birmingham on 8th August 2016. He decided to dismiss the appeal on all grounds for the reasons given in his Decision dated 20th August 2016. The Appellant sought leave to appeal that decision, and on 15th September 2016 such permission was granted.
Error of Law
2. I must first decide if the decision of the Judge contained an error on a point of law so that it should be set aside.
3. At the hearing, before the Judge, the Appellant appeared unrepresented and for that reason applied for an adjournment. The Judge refused that application for the reasons given in paragraphs 34 to 40 inclusive of the Decision. Having heard the appeal, the Judge dismissed it because he found the Appellant lacking in credibility and therefore he was not satisfied that the Appellant was a citizen of Iran, although a Kurd. The Judge went on to consider if the Appellant was at risk on return to Iraq and found that there was no such risk.
4. At the hearing, Mr Sharif argued that the Judge had erred in law in coming to these conclusions. He referred to the grounds of application and the grant of leave and argued that the Judge had erred in law in failing to adjourn the hearing. It was made known to the Judge that the Appellant had been abandoned by his previous representatives about a week before the hearing and had not been able to find alternative representation in the period available to him. The Judge had failed to apply the principle of fairness in accordance with the overriding objective given in Rule 2(2) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 as interpreted in the decision in Nwaigwe.
5. Mr Sharif went on to submit that the Judge had further erred in law by not making a finding as to the nationality of the Appellant. The Judge had treated the Appellant as if he was an Iraqi citizen, but had given inadequate reasons for his finding that the Appellant was not at risk on return to Iraq as a Kurd and a failed asylum seeker. He had not considered whether it was unreasonable by way of being unduly harsh for the Appellant to return to the Iraqi Kurdish Region (IKR).
6. In response, Mr Mills argued that there was no such error of law. There was no application for an adjournment made at the hearing, but in any event the Judge was not bound to grant an adjournment on request. At paragraphs 34 to 40 inclusive of the Decision the Judge had given thorough reasons for his decision to proceed and it was plain that he applied the test of fairness. Indeed, at paragraph 40 of the Decision the Judge had found it to be in the interests of justice not to adjourn the hearing, and that there was no unfairness to the Appellant.
7. Otherwise, the Judge had given comprehensive reasons for his finding that the Appellant’s claim to be an Iranian citizen was not credible. As that had been the basis of the Appellant’s claim for asylum, there was no reason for the Judge to proceed further, making his further finding that the Appellant was not at risk on return to the IKR irrelevant, and therefore any error of law in respect of that finding immaterial.
8. I find no error of law in the decision of the Judge. It was within the discretion of the Judge whether to adjourn or not, and it is plain from what he wrote on this subject at paragraphs 34 to 40 inclusive of the Decision that he exercised that discretion properly. He analysed the circumstances thoroughly and gave comprehensive reasons for his decision. It is equally plain that the Judge in deciding this issue applied the principles enshrined in the overriding objective.
9. Further, I agree with the submission of Mr Mills that any error of law relating to the Appellant being an Iraqi citizen of Kurdish origins is irrelevant and immaterial. The Appellant’s case was that he was at risk on return to Iran. The Judge found that case lacking in credibility and gave sufficient reasons for that conclusion. He identified a number of inconsistencies in the evidence of the Appellant which he also described as vague, limited, contradictory, incoherent and implausible.
10. For these reasons I find no material error of law in the decision of the Judge.

Notice of Decision
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
I do not set aside that decision.
The appeal to the Upper Tribunal is dismissed.
Anonymity
The First-tier Tribunal made an order for anonymity which I continue for the reasons given by the First-tier Tribunal.

Signed Date

Deputy Upper Tribunal Judge Renton