Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03935/2016

THE IMMIGRATION ACTS

Heard at Glasgow
Decision and Reasons Promulgated
On 16 November 2016
On 02 December 2016

Before

UPPER TRIBUNAL JUDGE DEANS

Between

MR
(Anonymity order made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr A Caskie, Advocate, instructed by Drummond Miller LLP
For the Respondent: Mrs M O'Brien, Senior Home Office Presenting Officer

DECISION AND REASONS

1) This is an appeal against a decision by Judge of the First-tier Tribunal Housego dismissing an appeal on asylum and human rights grounds.

2) The appellant was born on 6 July 1982 and is a national of Iran. He claimed to be at risk of persecution in Iran because of his conversion to Christianity and because he had taken part in protests following elections in 2009. He was detained following the protests in 2009 and held for a month, during which time he was tortured. His conversion to Christianity came a few years later, around 2015. He attended a house church and read the bible in Farsi. He evangelised his brother and cousin. In October 2015 the house church was raided. The appellant was hit on the forehead with a baton but recovered consciousness and ran away. The authorities raided his house the same night and took his father away for questioning. The appellant's brother-in-law arranged his travel from Iran to the UK, where he arrived in November 2015. He has been attending church services in Glasgow.

3) The judge did not believe that the appellant was a genuine convert. The judge did not believe the appellant had previously been detained and tortured. The judge did not believe the appellant had been at a house church when it was raided.

4) The grant of permission to appeal summarised the application as contending that Judge Housego erred in law (1) by relying on speculation when giving reasons for not accepting expert medical evidence; (2) by improperly relying on evidence which resulted from his own search of the internet; (3) by failing to afford the appellant a fair hearing, notably in relation to whether he should be allowed to call a particular witness; and (4) by inappropriately questioning the appellant during the hearing.

5) In particular, in relation to the medical evidence it is contended that the judge erred by finding that scarring on the appellant's back looked more like self-harm than torture. It was arguable that the judge erred by failing to give adequate reasons for not accepting the expert medical report that the scars were most unlikely to have been self-inflicted. In relation to the use of the internet it was contended in the application that the judge erred by relying on his own knowledge that a certificate was issued to a person who had completed the Alpha course. The judge refused to allow a witness to be called without the witness having received independent legal advice. The judge was concerned that there was an inconsistency between the date when the witness was granted asylum on the basis of his conversion to Christianity and the witness's claim in his statement that he had been evangelised by the appellant at a later date. The judge refused an adjournment either to allow the witness to obtain independent legal advice or to allow another witness to come forward. This was said to be an arguable error, which denied the appellant a fair hearing. It was contended that the judge had questioned the appellant about his religious knowledge in an appropriate manner, when the Secretary of State's representative had had the opportunity to cross-examine the appellant.

6) There was a rule 24 response dated 15 September 2016. The writer of this response ought to uphold the judge's decision but recorded that the medical report was not before the Secretary of State's representative at that time.

7) Although the medical report refers primarily to the period when the appellant claims to have been detained in 2009 it does contain a significant finding. This is that the scars on the appellant's back appeared to have been systematically and deliberately inflicted. Given their location it is extremely unlikely that they were self-inflicted. They are in keeping with incised wounds from a small bladed implement and are classified as Level E, ie diagnostic in the sense their appearance could not have been caused in any other way other than that described. Nevertheless the judge found at paragraph 66 of the decision that the photographs of the scarring looked more like self harm and were unlikely to be torture.

8) It was contended on behalf of the appellant that this was speculation on the part of the judge and contrary to the evidence produced. By proceeding in this way the judge might leave the informed reader with the impression the appellant was not being given a fair hearing. Although the judge correctly pointed out that the evidence of torture was not determinative of the asylum claim, the finding that the appellant was not truthful about this element of his claim must have had an impact on the overall credibility assessment. Indeed, I observe that the judge acknowledged as much at paragraph 66.

9) At the hearing before me neither party sought to defend the decision of Judge Housego. It was agreed that the decision of the First-tier Tribunal should be set aside and remitted to the First-tier Tribunal for hearing before a different judge with no findings made by Judge Housego preserved.

DECISION

10) The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.

11) I set aside the decision.

12) The appeal is remitted to the First-tier Tribunal for the decision to be remade at a hearing before a different judge with no findings preserved.

Anonymity

As the proceedings are continuing, I considered it appropriate to make an order for anonymity to preserve the appellant's confidentiality. Unless and until a Tribunal or court orders otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This order applies both to the appellant and to the respondent. Failure to comply with this order may lead to contempt of court proceedings.

Signed Date

Upper Tribunal Judge Deans 02 December 2016