Tribunal decisions

The decision

IAC-AH-SAR-V1
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03328/2020

THE IMMIGRATION ACTS

Heard at Birmingham Justice Centre,
Priory Courts
Decision & Reasons Promulgated
On the 21 July 2022
On the 8th June 2022

Before

UPPER TRIBUNAL JUDGE V. MANDALIA
DEPUTY UPPER TRIBUNAL JUDGE S. JUSS

Between

M A P
(ANONYMITY direction MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr H Singh, Solicitor, Twinwood Law Practice Ltd
For the Respondent: Mr C Williams, Senior Presenting Officer

DECISION AND REASONS
Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity. No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.
1. This is an appeal against the determination of First-tier Tribunal Judge Andrew, promulgated on 28th April 2021, following a hearing at Birmingham on 15th April 2021. In the determination, the judge dismissed the appeal of the appellant, whereupon the appellant subsequently applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before us.
The appellant
2. The Appellant is a male and a national of Iran. He appealed the refusal by the respondent of his asylum claim dated 20th May 2020. The appellant was nevertheless granted limited leave to remain as a minor until 1st August 2021.
The appellant’s claim and the decision of the First-tier Tribunal
3. The appellant’s claim was properly summarised by the First-tier Tribunal Judge in paragraph [5] of her decision:
“The Appellant fears persecution from the authorities in Iran because he claims to have attended a demonstration there, and also because of his sur place activities in that he has attended one demonstration whilst he has been in the United Kingdom. His claim for humanitarian protection is based on the same fears..”..
4. The judge began by treating the Appellant as a vulnerable witness, given that he was still a minor, and had only been 15 years of age when he first entered the United Kingdom. Her analysis of the evidence before the Tribunal and her findings of fact are set out at paragraphs [18] to [29] of the decision. At paragraphs [31] and [32], she said:
“31. I have already found that the Appellant does not have a political profile in Iran. His attendance at one demonstration here, without any evidence that the Iranian authorities were interested in it, I find does not place him at real risk on return. Although I accept the Appellant remains a minor I see nothing in his evidence that he has expressed a wish to be involved in the Kurdish cause - he has made no enquiries, for example, about joining Kurdish political groups in the United Kingdom, or, if he has, no evidence has been adduced of this. Accordingly I find he would not be at real risk on his return to Iran because of attendance at one demonstration in the United Kingdom.
32. It follows that, even following the hair trigger approach referred to in HB (Kurds) Iran CG [2018] in which it is said that the threshold for suspicion is low, and the reaction of the authorities is likely to be extreme the very low level of the Appellant’s political activity - that is attendance at one demonstration in the United Kingdom - is not likely to excite the interest of the Iranian authorities on the Appellant’s return to Iran.”
The appeal before us
5. The appellant’s grounds of appeal were settled by Counsel who represented the appellant before the First-tier Tribunal. Three grounds of appeal are set out. Grounds one and two claim that the judge failed to have regard to material considerations. In ground three, the appellant claims there was no evidential basis for the judge’s conclusion, at paragraph [27], that she was satisfied that there is no reasonable likelihood that the appellant’s father would have had sufficient savings or had sufficient time to liquidate his assets to pay the agent to enable the whole family to leave Iran.
6. On 9th June 2021, permission to appeal was granted by the First-tier Tribunal on the basis that whilst the judge did not have to recite every piece of evidence, it was arguable that she may have omitted from her consideration, aspects of the evidence that would have placed her concerns in a different light. Since these were central to her findings, they may have amounted to a material error of law. We deal with each of the criticisms made in turn.
7. Before doing so, we noted at the outset of the hearing before us that the grounds of appeal refer to evidence given by the appellant during the hearing of his appeal, which it is claimed the judge failed to have regard to. Particular care must be taken in making allegations as to events at a hearing. At no stage have the appellant’s solicitors sought to place any reliance on any contemporaneous note of the evidence given by the appellant before the First-tier Tribunal. A party who suggests that something was said, or not said at the hearing, contrary to what appears in the judge’s decision, needs to support that suggestion with evidence, if it is to be the basis of a ground of appeal; HA (Conduct of Hearing: Evidence Required) Somalia [2009] UKAIT 00018 The appellant’s representatives should have been well aware that a party who was represented before the judge, when appealing on grounds that the Judge failed to have regard to evidence given during the course of the hearing, as here, should file with their application a statement of truth as to the facts claimed, together with either: a) a photocopy of a contemporaneous note by their representative; or b) an explanation as to why no contemporaneous (or near-contemporaneous) note is available. For the purposes of this appeal, as Mr Williams did not take issue with what is claimed in the grounds of appeal, we proceed upon the basis that the grounds of appeal accurately set out the additional evidence given by the appellant.
8. Mr Singh also placed reliance upon the decision SB (Sri Lanka) [2019] EWCA 160 in which the Court of Appeal upheld an appeal against the rejection of an asylum claim on the basis that the First-tier Tribunal had made material errors in its evaluation of the facts. The Court of Appeal recognised that the First-tier Tribunal is experienced at resolving evidential disputes and noted that each country tended to throw up issues of a similar type, and both the First-tier Tribunal and Upper Tribunal are well-versed in dealing with them and had a good grasp of what is credible and what is not. At paragraph [46], Green LJ said:
“In cases (such as the present) where the credibility of the appellant is in issue courts adopt a variety of different evaluative techniques to assess the evidence. The court will for instance consider: (i) the consistency (or otherwise) of accounts given to investigators at different points in time; (ii) the consistency (or otherwise) of an appellant's narrative case for asylum with his actual conduct at earlier stages and periods in time; (iii) whether, on facts found or agreed or which are incontrovertible, the appellant is a person who can be categorised as at risk if returned, and, if so, as to the nature and extent of that risk (taking account of applicable Country Guidance); (iv) the adequacy (or by contrast paucity) of evidence on relevant issues that, logically, the appellant should be able to adduce in order to support his or her case; and (v), the overall plausibility of an appellant's account.”
9. Mr Singh submits Judge Andrews made material errors in her evaluation of the evidence and drew conclusions that were not open to her on the evidence before the Tribunal.
Ground 1
10. The appellant refers to the findings set out at paragraphs [21] to [24] of the decision concerning the appellant’s attendance at a demonstration in Kermanshah and the suggestion that his parents were seemingly unconcerned about his absence for nearly 24 hours, such that they did not even question him upon his return about his whereabouts given that he had not carried out his chores on the family farm. The appellant claims that:
(i) The Judge fails to refer to the appellant’s evidence in re-examination that his father was not working on the day of the demonstration as the family had guests. The appellant’s father would not therefore have known the appellant had not completed his chores and would not have had reason to question him on his return the following morning; and
(ii) The Judge fails to record the full extent of the evidence of the appellant set out in paragraph 12 of his witness statement that his parents had given him permission to stay over at a friends house as a result of his sacrifice as the eldest child who been forced to abandon his education to support the family financially. As such not being at home at bedtime would not have been unusual and not given the family reason to question the appellant.
11. Mr Singh submits the judge’s conclusion that the appellant’s parents were seemingly unconcerned at his absence for more than 24 hours is irrational. He submits the appellant had given an explanation in paragraph [12] of his witness statement that the judge failed to adequately address. He submits the appellant has given a consistent narrative and the failure to take into account the evidence set out in the appellant’s witness statement, and his evidence in re-examination, discloses a material error of law.
12. Mr Williams submits the judge did take into account, at [22] and [23], the evidence of the appellant and it was open to her to conclude that it was not reasonably likely that his family would have been unconcerned about his 24-hour absence. The evidence before the First-tier Tribunal, as set out at paragraph [22], was that the appellant’s normal day began at 6am and the appellant would return home between 5:30pm and 6.00pm. The appellant’s father was strict and would give him chores to do at the farm each day. He submits the judge did have regard to the appellant’s evidence and it was open to the judge to reject the appellant’s account for the reasons set out at paragraphs [22] and [23], and to conclude that the appellant’s credibility is damaged.
13. Paragraphs [21] to [23] of the decision must be read together. Judge Andrews noted how there had been a call to arms following prayers at the mosque, which led the Appellant to attend a demonstration regarding Kurdish rights in Kermanshah, which was a town some ten hours’ drive away by coach from the appellant’s village. The appellant’s parents did not know where he was going, and he had not taken his mobile phone with him. Judge Andrews noted, at [21], that in his evidence before her, the appellant said that he had not told his parents where he was going because “they wouldn’t let me” and that, “I was scared they would punish me”, thus leaving his phone behind. It was in our judgment open to the judge to be concerned about the appellant’s account of his attendance at the demonstration. The judge refers to the appellant’s evidence, which is not disputed, that he has a father “who was strict” and who would give him chores to do daily on the farm. The judge refers, at [22], to the appellant’s evidence regarding the length of his journey to and from Kermanshah, and properly noted that on the appellant’s own account, he would effectively have been away from home for very nearly 24 hours. The judge does not say that she was concerned about the appellant’s account because his father would have been aware that the appellant had not carried out his allocated chores on the family farm. The difficulty with the appellant’s claim is that his evidence before the First-tier Tribunal Judge, as recorded in paragraph [22] of the decision was that “..when he returned home his parents were asleep…”. The appellant does not claim that his evidence is mistakenly recorded. In the circumstances, whether or not the judge recorded or made reference to the appellant’s evidence in re-examination that his father was not working on the day of the demonstration as the family had guests, is entirely immaterial. The position remains that the appellant, on his own account, had been away for a considerable period and had not completed his daily chores. It was open to the judge to have concerns about the appellant’s account that when he returned home after that lengthy absence, his parents were asleep, apparently unconcerned as to his whereabouts.
14. The appellant also claims that the judge failed to record the full extent of the evidence given at paragraph [12] of his witness statement that his parents had given him permission to stay over at a friends house as a result of his sacrifice as the eldest child who had been forced to abandon his education to support the family financially. The difficulty with that claim is twofold. First, the appellant’s evidence as set out in paragraph [22] is that “when he returned home his parents were asleep”. In his evidence before the Tribunal, he did not claim that he had stay over at a friend’s house. We note the following exchange is recorded in the appellant’s asylum interview record:
“Q.99 when you got home did you tell your family what happened?
A. No
Q.100. What did you tell your parents about where you went?
A. Nothing
Q. 101. Did they not question you considering it took 20 hours to get there and back?
A. I was calm I did not look confused
Q.102 and did they not worry considering you were young, and you were away for more than one day?
A. They must have been but when I went back home they were sleeping and until the morning till they woke up they didn’t question me” (our emphasis)
15. Second, notwithstanding the appellant’s evidence, in any event, the judge did consider the appellant’s claim in paragraph [12] of his witness statement that his parents had given him permission to stay over at a friends house. At paragraph [23], the Judge said, “I am satisfied that even had his family thought the appellant was with his friends, which is his claim now, (our emphasis) then it is reasonably likely they would have been concerned that the appellant was absent for this length of time…”. The fact that the appellant had explained in his witness statement the reasons why his family had given him that permission, adds nothing. Paragraphs [21] to [23] of the decision must be read together. There is no obligation on a Judge to recite the entirety of the evidence in the decision. The findings and conclusions reached by Judge Andrews were neither irrational nor unreasonable in the Wednesbury sense, or findings and conclusions that were wholly unsupported by the evidence. The implication in the submissions made by Mr Singh is that the evidence was considered by the judge, but not to the extent or in the way desired by Mr Singh or the author of the grounds.
Ground 2
16. The appellant refers to paragraph [26] of the decision in which the Judge records that in response to questions, the appellant said that when he was telephoned by his brother, he was “far from my area”. The Judge said that was inconsistent with his claim during his interview. At question 52, the appellant was asked where he worked location wise, and the appellant answered, “just to the outskirts of the village”. The appellant claims that his response to question 52 as recorded in the asylum interview formed part of a series of questions relating to the appellant’s nationality rather than the events that led to his departure from Iran. The appellant claims Judge Andrews erred in finding that there was an inconsistency in the evidence, without having regard to the context of the relevant questions and answers.
17. The appellant claims that in his evidence he said that when he received the call from his brother he was with the cattle on his own, and his father was working on the land. The appellant had explained that he sometimes left his area with the cattle, to move to another mountain. In his evidence he had said that he was far from his area at the relevant time. The appellant’s answer to question 52 in his asylum interview was in response to a question in general terms about where he worked and was not concerned with where he was on the day of the visit by the authorities. The significance of this was, according to the judge, that if the appellant was working on the outskirts of the village, then given that the authorities had been around to his parents’ home searching for him, they “would have been able to find him without any difficulties”.
18. Whilst we accept there is some force in the claim made by the appellant that in answer to question 52 of the asylum interview, the appellant was simply stating that location wise, he worked ‘just to the outskirts of the village’, and that his evidence before the Tribunal, as set out in paragraph [26], that on the day he was telephoned by his brother he was ‘far from my area’, related to, in particular, where he was when the authorities visited the family home, any error is immaterial. The fundamental difficulty with the appellant’s account is that as Judge Andrews records in paragraph [25] of her decision, at paragraph [11] of his witness statement the appellant claims that when his brother telephoned to say that the authorities were at the appellant’s house, the appellant’s brother told him to stay at the farm “until his father came”. At paragraph [11] of his witness statement dated 24th June 2019, the appellant states;
“I was on the farm looking after the cattle. I was alone. (our emphasis) I received a call from my younger brother. He was frightened and told me not to return home… He informed me that the authorities came to the house looking for me and it was something about attending a demonstration and my photographs were taken. My brother informed me to remain on the farm until father comes for me. I was scared but waited ”.
19. At paragraph [12] of his statement, the appellant states;
“It was late at night when my father, mother and all siblings came to the farm. My father informed me that the authorities had come looking for me. He informed me that they came to the house as they had evidence of me attending a demonstration. They showed my father photographs of me at the demonstration. As I was not at home so they said they would return for me…” (our emphasis)
20. Judge Andrews noted at paragraph [25] of her decision that in evidence the appellant said that when the authorities had come four days after the demonstration, his father was at the farm, and his mother and brother were at home. Judge Andrews found that to be a major inconsistency in the appellant’s claim that cannot be excused by the appellant’s youth at the time his statement was made, or when he gave evidence.
21. It was in our judgement undoubtedly open to Judge Andrews to find that there was a major inconsistency in the appellant’s claim regarding the events on the day upon which the appellant claims the authorities visited the family home. They are the events that lie at the heart of the appellant’s claim. Whether the farm is “on the outskirts of the village” or the appellant was “far from [his] area”, is therefore immaterial to the outcome of the appeal, in circumstances where there is a fundamental inconsistency in the core of the appellant’s claim.
Ground 3
22. The appellant claims Judge Andrews erred, at paragraph [27], in concluding that she was satisfied that there is no reasonable likelihood that the appellant’s father would have had sufficient savings to enable him to find an agent and pay sufficient sums to enable the whole family to leave Iran, or that he would have had sufficient time to liquidate his assets to pay the agent. The appellant claims this fails to take into account the fact that they may well have had savings built over a period of time, to draw upon in cases of an emergency such as this, because the appellant had said in his asylum interview that his father had also worked as a kolber, as well as working on the family farm. In short, the appellant claims there was no evidence before the judge that the family did not have sufficient savings to draw upon. Moreover, the appellant had said that his family probably sold things to raise money.
23. Mr Singh submits the judge was wrong to conclude that given that the appellant’s father lived off a small farm there was no reasonable likelihood that he would have had sufficient savings to enable the entire family to be moved on the very day of the arrival of the authorities at his home. Mr Singh drew our attention to the appellant’s responses set out to questions 70 and 71 of the asylum interview record in which the appellant confirmed that his father had a “small land” where he grew tomatoes and vegetables, but also had worked as a kolber.
24. Mr Williams submits Judge Andrews was entitled to conclude that it was unlikely that the appellant’s father had sufficient savings to enable an agent to be immediately paid for the family to all to leave Iran. The appellant had said in his asylum interview, [Q.116], that the family all fled on the same day, and travelled to Turkey. Mr Williams submits the removal of four people within a matter of hours on a long journey from Iran to Europe is something that is likely to have been planned for, and the judge was entitled to reach the conclusion that she did in this regard.
25. In Y –v- SSHD [2006] EWCA Civ 1223, Keene LJ referred to the authorities and confirmed that a Judge should be cautious before finding an account to be inherently incredible, because there is a considerable risk that they will be over influenced by their own views on what is or is not plausible, and those views will have inevitably been influenced by their own background in this country and by the customs and ways of our own society. However, he went on to say, at [26];
“None of this, however, means that an adjudicator is required to take at face value an account of facts proffered by an appellant, no matter how contrary to common sense and experience of human behaviour the account may be…”
26. In our judgment, the conclusion reached by Judge Andrews that there is no reasonable likelihood that the appellant’s father would have had sufficient savings to enable the family to flee Iran, or that he would have had sufficient time to liquidate his assets to pay an agent, was one that was open to the judge for reasons set out in paragraph [28] of the decision. The conclusion reached by Judge Andrews was neither irrational nor unreasonable in the Wednesbury sense, or a conclusion that was wholly unsupported by the evidence.
27. We are quite satisfied that it was open to Judge Andrews to conclude on the evidence before her that the appellant’s claims in relation to what happened in Iran are such that they have been undermined so significantly, that he would not be at real risk on his return to Iran for the reasons given by her.
28. Accordingly, we conclude that the challenge to the decision below amounts to nothing more than a disagreement with the decision made by the judge below. There is no material error of law in the original judge’s decision.
Notice of Decision
29. The appeal is dismissed, and the determination of First-tier Tribunal Judge Andrews shall stand.

Signed S Juss

Deputy Upper Tribunal Judge Juss 15th June 2022