PA/03836/2016

• Status of case: Unreported
• Hearing date: 20 Jan 2017
• Promulgation date: 6 Feb 2017
• Publication date: 5 Oct 2021
• Last updated on: 5 Oct 2021

The decision

IAC-AH-sc-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03836/2016


THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
On 20 January 2017
On 06 February 2017




Before

DEPUTY UPPER TRIBUNAL JUDGE ESHUN

Between

PH (IRAN)
(ANONYMITY DIRECTION made)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent


Representation:

For the Appellant: Ms N Braganza of Counsel, Camden Community Law Centre
For the Respondent: Mr T Wilding, HOPO


DECISION ON ERROR OF LAW

1. The appellant is a citizen of Iran, born on 20 July 1985. He appeals against the decision of First-tier Tribunal Judge Keith dismissing his appeal against the respondent's decision dated 8 April 2016 to refuse his claim of asylum and humanitarian protection.

2. The appellant is of Kurdish ethnicity. His evidence is that he worked as a photographer and filmmaker in Iran. His work included producing videos and printed leaflets for the banned KDPI (the Democratic Party of Iranian Kurdistan) and although he was not a member of the KDPI, he was strongly supportive of their political objectives. He was arrested in June 2015 by the Iranian authorities when he was filming a Kurdish traditional wedding which is illegal under Iranian law. He was detained, beaten and accused of working with the KDPI. He was released on bail with his father as a surety, the security being the deeds to his father's property. He found that his studio was closed and secured by the Iranian authorities and believed that they would have taken all of his computers/hard drives containing all the incriminating evidence. On release he was warned by a lawyer to leave Iran as he would be continually subject to monitoring and persecution. He left Iran illegally and entered the UK on false documentation on 14 November 2015 and claimed asylum.

3. The judge found that the appellant does not have a well-founded (or even genuine) risk of persecution, either because of his support for the KDPI; or for having taken illegal photographs; or that he is at risk on return for having left Iran illegally.

4. The judge's findings for reaching his conclusion are to be found at paragraphs 92 to 101.

5. Permission to appeal was granted by Upper Tribunal Judge Jordan as follows: it is arguable that the judge's adverse credibility findings are centred upon the peripheral and this has affected his approach to the core of the claim. By way of example only, the judge rejected his having photographed a wedding because the lawyer could have obtained evidence that the appellant had been arrested. The better course may have been to have made findings on whether he was a photographer by profession, what the Iranian attitude is to photographers/wedding-photographers, whether the appellant was doing something illegal and whether that made it likely he was arrested as he claimed and, if so, what treatment those arrested receive in detention. This might have then fed into his consideration of the risk on return.

6. Ms Braganza submitted that the appellant's appeal turns on the judge's assessment of credibility. She submitted that Upper Tribunal Judge Jordan's grant of permission encapsulates the appellant's grounds.

7. After taking me through the judge's decision, Ms Braganza submitted that the judge's conclusions were relatively brief in what they dealt with. There was a misapplication of Section 8 of the Asylum & Immigration (Treatment of Claimants, etc.) Act 2004 the approach to credibility. She submitted that the judge's starting point at paragraph 92 was misleading in that he said the appellant used false Spanish papers and that he had failed to take reasonable opportunity to make an asylum or human rights claim while in a safe country. Ms Braganza said that this finding elevated Section 8. She submitted that the judge should have considered each part of the evidence in the context of the objective evidence and the expert report. The judge's elevation of Section 8 impacted his decision.

8. Ms Braganza submitted that in addition to the screening and substantive interviews, and prior to the respondent issuing a Reasons for Refusal Letter, the appellant submitted a witness statement dated 3 March 2016 which was before the judge. The statement detailed the ill-treatment the appellant received in detention. At question 48 of the substantive interview, the appellant was only asked about his detention. She submitted that the appellant's detailed description of the ill-treatment he received in detention did not feature in the judge's decision. Given that the most important part of assessing the appellant's claim was credibility, she submitted that the judge approached it back to front and assessed credibility through the lens of Article 8. The grant of permission identified the approach that the judge should have taken. This was not what the judge did. Consequently, the judge's decision is flawed and cannot stand.

9. Ms Braganza said that there were four additional grounds she wished to rely on. The first was in respect of the judge's finding at paragraph 96 that the appellant had not provided a satisfactory explanation for the lack of any legal material relating to the family home being offered as surety. The judge had added that the appellant's father had a lawyer, on the appellant's own evidence, and had a home offered as surety. He regarded it as wholly implausible that the family would not have retained documents relating to the terms of that surety, and would not have provided them to the appellant, had they existed. Ms Braganza relied on paragraph 3.2 of the appellant's grounds where it was stated that at no point had the appellant ever given evidence of a lawyer being involved in his release. His evidence was that he spoke to a lawyer after his release and was advised that he would be put under surveillance, his communications intercepted and would not be released again if arrested. Reference was made to the pre-refusal decision statement dated 3 March 2016, at paragraph 34, page 14 of the appellant's bundle. As the lawyer had no involvement in the appellant's release, it makes it irrational for the judge to make adverse findings on the appellant's failure to produce documents from him/her.

10. The second additional ground was that for the judge to require legal material was a misapprehension of the evidence and leads to the conclusion that the judge applied a high test to require the appellant to produce legal material.

11. The third additional argument was in respect of the judge's finding at paragraph 97 that because no such surety was offered, the appellant was not detained. Ms Braganza said that the judge's decision was wrong in light of paragraph 23 of the appellant's statement.

12. Her fourth argument was in relation to the judge's finding at paragraph 101 with regard to the origin of the wedding and political montages. The judge had said that on the appellant's evidence he did not take any of the political photographs but that they were merely still photographs that were subsequently assembled. Ms Braganza said that the judge failed to take account of the huge volume of photographs and montages which bore the appellant's name. The judge did not consider the actual work the appellant did for the KDPI. She submitted that the judge did not approach credibility correctly.

13. Mr Wilding said that there was little he could say to defend the determination. He said that although the appellant's witness statement of 3 March 2016 was not in the Home Office's bundle, it was wrong for the judge to say that the appellant had raised the issue of his ill-treatment in detention for the first time in his appeal statement for rejecting the arrest and detention.

14. In light of Mr Wilding's submission, and the very strong arguments put forward by Ms Braganza, I find that the judge made material errors of law.

15. Accordingly, the judge's decision cannot stand. The decision has to be remade.

16. The appellant's appeal is remitted to Hatton Cross for rehearing by a First-tier Tribunal Judge other than FTJ Keith.


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 their 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: 5 February 2017

Deputy Upper Tribunal Judge Eshun