Tribunal decisions

The decision

IAC-AH-LR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03807/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 8th December 2016
On 15th December 2016

Before

UPPER TRIBUNAL JUDGE REEDS

Between

OA
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Heidar, instructed on behalf of the Appellant
For the Respondent: Mr Melvin, Senior Presenting Officer

DECISION AND REASONS
1. The Appellant is a national of Afghanistan.
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. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.
2. The Appellant, with permission appeals against the decision of the First-tier Tribunal who, in a determination promulgated on 13th September 2016 dismissed his appeal against the decision of the Secretary of State to refuse his claim for asylum and on human rights grounds.
3. The basis of the Appellant's claim is set out in the determination at paragraphs [9] to [16]. The Appellant lives with his family members in Afghanistan and in August 2015, it is asserted that he went with his family to his brother-in-law's house which is approximately one hour 50 minutes away from his own home. It is said that whilst he was there, the Taliban invaded the village and the Appellant was stopped by the Taliban. The Appellant was asked his name, which he provided and his identity card and he also informed the Taliban that his brother-in-law's house was his own home. He was also chanting with other villagers "long live the Taliban" and gave the appearance of being on their side. It is asserted by the Appellant that he did so only because he was in fear. It is further asserted that the Taliban had taken a film of the Appellant in which he was expressing his support for the Taliban.
4. It is stated that as the Taliban continued their advancement, the Appellant left with his family and returned to his home village.
5. On 13th August 2015 he said the authorities came to the Appellant's house and the authorities informed his wife that they had seen a video of the Appellant and he was accused of spying on behalf of the Taliban against the authorities. The Appellant went to his friend's home and had told them what had happened; his friend went to the Appellant's house and saw police in civilian clothes and two police cars at the top of the Appellant's road. As a result of what had happened, the Appellant left his village and travelled to the UK.
6. In a decision letter dated 1st April 2016 the Secretary of State did not accept the account given by the Appellant as a credible one and gave reasons for reaching that view at paragraphs [16] to [22].
7. The Appellant appealed that decision and it came before the First-tier Tribunal. The judge reached his conclusions at paragraphs [30] to [39] and concluded overall that the Appellant had failed to substantiate the factual issues in this case and he rejected his account that the Taliban had filmed the Appellant or that he had come to the adverse attention of the authorities in Afghanistan on account of any perceived involvement with the Taliban. Thus he dismissed his claim.
8. The Appellant sought permission to appeal that decision and permission was granted by Upper Tribunal Judge Hanson on 8th November 2016.
9. Thus the appeal came before the Upper Tribunal. I have had the opportunity of hearing the submissions of each of the parties which I have recorded in my Record of Proceedings and which I have taken account of in reaching my overall decision.
10. Having heard those submissions, I am satisfied that the decision of the First-tier Tribunal decision does demonstrate the making of an error on a point of law. I shall set out my reasons for reaching that conclusion.
11. The grounds challenge, in essence, the credibility findings made by the judge. Those findings are set out within the determination at paragraph [30]-[39] and include a consideration of a document described as a "police letter". This is in fact a document from the Ministry of Interior of Afghanistan relating to the police command of a particular province (see paragraphs 5 and 6 of the Appellant's bundle).
12. The judge considered that document at paragraphs [36] and [37] of the determination. At paragraph [36], the judge rejected the Appellant's account that the authorities would send an important document such as this to another's home. At paragraph [37] the judge considered the contents of the document and found that it contained an incorrect name because it referred to a different name to that of the Appellant. He recorded the Appellant's explanation that the name was correctly mentioned in the summons and if there had been any problems there was a problem with the translation, but the judge stated at paragraph [37] "I also do not accept that the translation company would make such a simple error. For these reasons I cannot attach any weight to this document".
13. It is common ground between the parties that contrary to the findings set out at paragraph [37], the translation company have accepted that they had made an error in the translation which is what the Appellant had said in his evidence and recorded by the judge at paragraph [37]. The letter from the translation company is dated 16th September 20016 which accompanied the Grounds of Appeal. The judge did not attach weight to that document because he found that the incorrect name of the Appellant had been stated on the document when it had been translated. However as set out above, it is now accepted that there had been an error in the translation. The issue as Mr Melvin submitted is whether the finding, which was made for no fault on the part of the judge, which was in error whether it was material to the outcome when seen in the light of the other findings of fact made. Whilst Mr Melvin submits it is not material because the judge gave other reasons for reaching the conclusion the Appellant had not provided a credible account, I cannot rule out that the error that is now agreed to be such an error, led the judge to reach the conclusion that he could attach no weight to the document.
14. The judge also had before him an expert report from Dr Guistozzi which expressly dealt with the issue of authenticity of the police document (see report at page 38). It is unclear from the finding at [39] whether the judge accepted the contents of the expert report in this context. As Ms Heidar submits, there is no analysis of the expert report and the issue of its authenticity when considering what weight should be attributed to the document when assessing the credibility of this claim as a whole. The report at paragraph [47] sets out the steps taken in respect of the authentication of the document. At page [48] it sets out the process that was undertaken to verify the document and confirms at paragraph [6] that the signature had been confirmed as had the stamp and the conclusion reached that it is consistent with a genuine document issued by the police.
15. When reaching a conclusion on the credibility of the claim as a whole, the judge was also required to consider the reliability of the police statements not only in the context of the Appellant's evidence as he did at paragraph [36], but also in the context of the expert report and in particular the contents of the report dealing with its authenticity. Thus I have reached the conclusion that as this has not been undertaken, it undermines the conclusions reached upon the document and must affect the credibility findings as a whole because this is a matter that relates to the core of the account that he would be at risk from the authorities.
16. Furthermore the refusal letter at paragraph [17] reached the view that the objective evidence as there was did not confirm whether the area the Appellant claimed the events had occurred in was involved in conflict with the Taliban. The expert report at page 17 sets out further objective evidence relating to that area and makes reference to conflict in April 2015 where the Taliban took over the area and that it kept on throughout 2015. This covered potentially the period of the events in which the Appellant asserted the filming had taken place.
17. The Secretary of State also did not believe that the Appellant had been filmed. However the expert report also dealt with that issue. There was also an email sent separately dated 30th August 2016 making reference to the conflict confirming that the expert could not find precise confirmation that the area was taken again in August 2015.
18. There was no consideration of this objective material within the determination when looking at the overall credibility findings along side the document which on the face of the evidence had been the subject of authentication. Whilst the judge made other credibility findings at paragraphs [32] to [35] which Mr Melvin relies upon, and which demonstrate that the Appellant had given some inconsistent evidence during the hearing, I am satisfied that the error made in relation to the summons was material when seen in the light of the expert evidence which was not considered when reaching an overall consideration of the credibility of the claim.
19. It is not possible in my judgment to separate the findings of credibility; which were open to the judge to make and those which were made but did not include consideration of all the evidence. Credibility findings need to be considered in the round and thus I am satisfied for the reasons I have given that the grounds are made out. As the findings relating to credibility did not take into account all of the evidence, it is not sufficient in my judgment to submit that the Appellant could not succeed on the objective material because as the judge set out if the claim of being accused of being a Taliban spy was substantiated, so the objective material did support the Appellant's claim.
20. Both advocates are in agreement that if the credibility findings are to be set aside, the correct course is for the appeal to be remitted. Therefore as I have reached the conclusion that the credibility findings were central to the overall issue of whether the Appellant would be at risk of persecution upon return to Afghanistan, the determination will be set aside and will be remitted to the First-tier Tribunal to consider afresh.

Notice of Decision

The decision of the First-tier Tribunal involved the making of an error on a point of law; the decision is set aside and is remitted to the First-tier Tribunal for a rehearing.

Signed Date

Upper Tribunal Judge Reeds