Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03346/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17th August 2016
On 23rd August 2016

Before

UPPER TRIBUNAL JUDGE KING TD

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

V M
(ANONYMITY DIRECTION MADE)
Respondent/Claimant

Representation:
For the Appellant: Mr C Avery, Home Office Presenting Officer
For the Respondent/Claimant: Ms H Short, Counsel, instructed by Elder Rahimi Solicitors

DECISION AND REASONS

1. The claimant is a citizen of Iran who claimed asylum upon arrival in the United Kingdom on 22nd June 2015. His claim for asylum is based upon his fear that if he were to return to Iran he would be arrested because of his imputed political opinion as he has been accused of being a spy. He attended an interview on 12th November 2015. His application for protection was refused in a decision dated 25th November 2015.

2. The claimant appealed against that decision, which appeal came before First-tier Tribunal Judge Sweet on 5th May 2016. The claimant gave evidence and produced a number of documents. The appeal was allowed.

3. The Secretary of State for the Home Department now seeks to challenge that decision, essentially on the basis that inadequate reasoning or no reasoning was provided as to why the claimant's account should have been accepted in the face of numerous criticisms made upon it.

4. In one sense the chronology of the claimant's activities lacks clarity in the interview and in his statement of grounds. What the claimant has to say about the matter is summarised in some detail in the determination.

5. In summary, the claimant began working for a senior imam in 2002 or 2003 and was employed until 12th February 2009 when he was transferred to a different department, namely to the imam's private office in February 2009. He was there until 2014.

6. It is his case that during his period of employment he provided to one B, an investigative journalist, certain documents which he had acquired in the course of his employment. B was arrested on 3rd April 2015, it having been revealed that he had obtained the documents from the claimant, resulting in the authorities raiding his home, taking his laptop and documents from his home. It was his case that he has been sentenced to a term of five years' imprisonment for spying. He fears worse treatment were he to return. Subsequent to the asylum interview and decision a number of court documents were presented in support of the claim, such documents said to have been obtained through the assistance of his wife.

7. The Secretary of State for the Home Department in her decision of 27th November 2015 raised a considerable number of concerns about the account which the claimant gave. The Presenting Officer at the hearing also raised a number of matters of concern which are recorded at paragraphs 31 to 34 of the determination.

8. Mr Avery, who represents the Secretary of State for the Home Department in this appeal, contends that fundamentally the Judge has failed to engage with those concerns or to indicate why it is that they are not material to the outcome of the decision.

9. I find that there is some merit to the concerns as raised. The determination consists of some 41 paragraphs. It is right to note that for the first 38 paragraphs the account of the claimant and record of evidence presented at the hearing is set out.

10. The Judge acknowledges in paragraph 41 that, in the absence of any evidence of a particular interest in the claimant, there would be no risk to him upon return. The leading case of SB (risk on return-illegal exit) Iran CG [2009] UKAIT 00053 is cited.

11. In practical terms it is only in paragraph 41 that any reasoning is adopted as to why the account of the claimant is accepted.

12. It is submitted that even that paragraph is flawed by reason of lack of anxious scrutiny and failure to give adequate reasons.

13. Concern was expressed that the court documents were produced at a late stage, seemingly having been obtained by the claimant's wife. There is, however, no statement from the wife as to how she contacted the authorities or obtained the documents. The Judge does not seem to deal with that concern other than to note it.

14. It is said that there is curiosity in relation to the court verdict document which purports to show that the verdict was delivered on 30th December 2015 but the confession obtained on 11th January 2016. Ms Short, on behalf of the claimant, submits that that is to misunderstand the document which is to be found at pages 8 and 9 of the bundle. In that connection it may be helpful just to set out the paragraph in which the reference is made:-
"Given the record of accused no 1 who has a long history of propaganda against the regime and disseminating lies as well as a record of a variety of crimes and also [taking into account] the manner of his arrest in the Baha'I Golestan Javid cemetery, and given his confession as recorded in file no 94-528314527621 dated 11th January 2016 [Persian calendar: 21/09/1394] in branch 8 of the Interrogation Centre under the pretext of invalid and baseless arguments and distortions and attempts to change the investigative process?"
15. Ms Short submits that, in that context, 11th January is referring to the date of the file rather than the date of the confession. The language of the context is ambiguous but if ambiguous clearly should be read in favour of the claimant, given the burden and standard of proof.

16. However, it is the opening words of that paragraph which it seems to me is a real concern as to the claim itself.

17. I mention that matter because indeed it was the very matter that the Judge made reference to in paragraph 41:-
"I accept the genuineness of those documents, even if I have found some of the appellant's evidence to be not wholly consistent - for example his lack of explanation as to why there were no issues with the authorities between the end of 2009 and May/June 2014, during the period when he was indeed working in the Ayatollah's private office."
There is, however, no consideration further of that concern. In the light of what the claimant had said at the hearing, coupled with that particular passage from the judgment document, this is a matter obviously calling for anxious scrutiny and consideration.

18. As I have indicated, one of the difficulties in this case is the lack of clear definition of chronology. It is fundamental to the claim of the claimant that he was fully trusted by the imam in the course of his duties. The court document would, however, if correct, give a different view of the claimant, referring as it does to a period of time.

19. The claimant speaks of having been accused of spying. There is a degree of a lack of clarity as to when that allegation was made. It is recorded in the determination at paragraph 26 that in December 2009 he took part in a demonstration on Ashora Day and was seen to do that. He was questioned as to why he was there and why he participating in the demonstration. He was accused of spying. There were no problems and he then started his job in the Ayatollah's offices. The problems that caused him to leave were following the arrest of Babak in April 2015. That account, whether it be accurate or not, was is recorded as the evidence of the claimant that he was accused of spying in 2009. It may be considered that if that be so it is highly unlikely that he would be given any job of trust in the imam's office. How he came to have that employment in spite of the allegation of spying falls to be clarified. His lack of explanation as to why there were no issues with the authorities from 2009 to 2014 was in the context of the claim a very important matter. It was identified by the Judge quite rightly but then not pursued.

20. A matter, also highlighted by Mr Avery in his submissions, was the seeming circularity of any reasoning by the Judge in relation to any criticism that was raised as to the claim. An example of that can be seen in paragraph 38 of the determination when the Judge comes to consider the inconsistencies as to the details of employment, earnings and of B's address. It may be that those matters perhaps are more peripheral to the claim than central. Nevertheless, the response of the Judge is informative when the Judge remarks: "I do not consider these inconsistencies to be material, because to the lower standard of proof I have accepted the essence of the appellant's claim".

21. At paragraph 39 in response to the concerns as to the late production of key documents the response of the Judge is exactly the same, namely: "I have accepted the appellant's account to the lower standard of proof."

22. The Judge gives no reason as to why he accepts the credibility of the account but nevertheless, having done so, then views the criticisms in the light of his finding. That is clearly in my judgment not a proper approach to take on matters of credibility. It is also emphasised that, in assessing credibility, all matters need to be considered in the round if it is apparent that before addressing the concerns the Judge had already come to a firm conclusion. That is to reverse the normal approach that is to be taken to these matters.

23. Ms Short, in her submissions, invites my attention to her written reply. I have taken that into account. Nevertheless I find that the decision of the Judge is materially flawed, having failed properly to address the concerns that have been expressed. Further, resolving the issue of credibility in favour of the claimant before considering the concerns and relevant matters, in other words, failing to take a holistic view of the evidence before coming to conclusions.

24. In the circumstances therefore the appeal of the Secretary of State is allowed to the extent that the decision is set aside.

25. Given that credibility is at large and that a detailed assessment of the facts and chronology and documentation will be required, I find that it is a case which falls within the President's Practice Direction, such that the matter should be remitted to the First-tier Tribunal for a full rehearing.

26. I do not set any directions at this stage. They can be set by the Tribunal.

Notice of Decision

The appeal is allowed .The decision of the First-tier Tribunal is set aside to be remade.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 23 August 2016

Upper Tribunal Judge King TD

TO THE RESPONDENT
FEE AWARD

I make no fee award as the outcome of the claim remains to be decided.

Signed Date 23 August 2016

Upper Tribunal Judge King TD