Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/04005/2016

THE IMMIGRATION ACTS

Heard at Glasgow
Determination issued
On 8 November 2016
On 15 November 2016

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

SALEH [S]
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Mr S Winter, Advocate, instructed by Katani & Co, Solicitors
For the Respondent: Mr M Matthews, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant appeals against a decision by First-tier Tribunal Judge Greasley, promulgated on 26 July 2016, dismissing his appeal against refusal of asylum.
2. The first ground of appeal, directed against paragraph 22 of the decision, states that "when recounting the [respondent's] reasons for refusal" the judge referred to a "further material inconsistency" over a matter of dating, which the respondent later conceded to have arisen from incorrect transposition of dates from the Persian calendar. It is said that the judge took this into consideration when considering overall credibility, and "this error improperly informed his opinion".
3. At paragraph 59 the judge holds it against the appellant that upon arrival in the UK he did not attempt to claim international protection. Ground two submits that as the appellant was encountered in a lorry on the date that he entered the UK, was taken to a police station and claimed asylum, this was no basis for a negative finding.
4. Ground three criticises a point also made at paragraph 59, where the judge found it adverse to the appellant's credibility that he repeatedly asked for repetition of clear and unambiguous questions. This is said to have been perfectly reasonable behaviour on the part of the appellant, and incorrect speculation by the judge.
5. Ground four criticises the judge for speculating against the appellant at paragraph 54, finding no explanation of how witnesses would identify individuals as being from the KDP and be able to report back so quickly to the authorities. It is said to be unrealistic to expect the appellant to know who reported him, and speculation to have taken it to be beyond reasonability that villagers might have recognised KDP fighters.
6. The foregoing are said to be unsupported speculations and assumptions which cumulatively amount to error in law.
7. A First-tier tribunal judge declined to grant permission on these grounds, observing that lengthy reasons were given for the adverse credibility findings; that the point in ground 1 was not given as one of the judges reasons, but in a recital of the respondent's position; and that it was strictly true that the appellant made no attempt to claim asylum on arrival.
8. The appellant renewed his application to the upper tribunal, which granted permission on 5 October 2016, observing that although other proper reasons might have been given, the decision contained two arguably bad points: relying on an issue which had been disavowed by the respondent, and on not claiming asylum on arrival when the appellant arguably had "no choice but to comply with his agents".
9. Mr Winter applied to argue additional grounds, as follows. Mr Matthews did not object to these grounds being considered.
10. The first additional ground is that the judge erred in assessing documentary evidence, namely a summons from the revolutionary court and a warning letter from a prosecutor by (i) reaching a conclusion before surveying all the evidence; (ii) putting the cart before the horse by putting the burden on the appellant to demonstrate the documents were genuine, then reaching adverse credibility findings because the appellant failed to discharge that burden; (iii) failing to ask whether the documents were at the centre of the request for international protection and whether there were simple enquiries which the respondent could make to conclusively prove whether the documents could be relied upon, the obligation of verification being upon the Secretary of State; (iv) failing to consider that the respondent could have asked for an adjournment to verify the documents; (v) failing to adjourn ex proprio motu; and (vi) speculating, in finding the documents did not give the impression being six months old.
11. Mr Winter accepted that the appellant had not put any previous argument along the lines of this ground, but he said it was such an obvious and material error that it should be accepted even at this late stage.
12. The second additional ground is that the judge misapplied Chiver by founding on matters which did not go to the core of the appellant's account - (i) not mentioning the shooting of his friend at interview (ii) failing to give details about his father and uncle [later said to be peshmerga fighters under government suspicion] at interview and (iii) failing to give details about documents at interview or in his witness statement.
13. Additional ground three is that the judge erred in law at paragraph 4 by irrationally expecting the appellant to know information outside his knowledge, namely how witnesses would have known he was helping the KDP.
14. Additional ground four is that the judge erred when finding that the appellant prevaricated in his responses, because the judge gave no examples of the questions asked, and so failed to provide a sufficient explanation for his finding.
15. Finally, Mr Winter submitted that additional ground one might be enough on its own to set aside the determination; otherwise, the other grounds, in combination, disclosed such error.
16. I am not satisfied that the grounds disclose any such error on points of law as to require the decision to be set aside.
17. On the original ground one, the judge simply records this matter while summarising the position first taken by the respondent. It is not revisited and is not taken as an adverse point in the resolution of the case.
18. Failure to claim asylum earlier in the UK is perhaps not a point of any real significance against the appellant, when he apparently made his claim shortly after being encountered at or near a motorway service station, having made an illegal entry and decamped from a lorry. Another weak point is the comment that the documents produced did not give an appearance of being six months old, when the judge does not say how he could tell one way or the other, and what difference this made.
19. There is no error of treating the documentary evidence in isolation, or of reaching adverse conclusions before turning to it. The judge applied the lower standard of proof to the evidence cumulatively and in the round; see the decision as a whole, and paragraph 49 in particular.
20. As Mr Matthews pointed out, according to the appellant's evidence he had the documents at the time of his interview and later when making his witness statement through his solicitors, yet he produced them only the day before the hearing. The judge gives good reasons for not finding these to be reliable documents, and was under no duty of his own initiative to adjourn and to require the respondent to make further enquiries. This is not one of these fairly rare situations where the respondent might be under any such duty, and it is a far-fetched point for an appellant who by his own account had the documents in his possession for some six months, yet kept quiet about their existence and produced them as a last minute ambush. There was nothing to prevent the appellant from having efforts made on his side to authenticate the documents.
21. The extent to which the matters mentioned at additional ground two went to the core of the account was for the judge to decide. He was plainly entitled to find they were quite important. There is nothing in Chiver or any other authority to the effect they should have been left out of account.
22. It might have been desirable for the judge to quote examples of the appellant prevaricating in his evidence, playing for time or giving unresponsive answers, but first instance judges are entitled to reach their findings, with appropriate caution, based in part on the manner in which an appellant gives evidence before them.
23. The grounds seek to probe quite minutely for error in the decision, but apart from two minor points they disclose no error of reasoning, and no error of principle in the approach taken.
24. The grounds do not show that the decision, read fairly and as a whole, is a less than legally adequate explanation to the appellant of why his account has been rejected and his appeal has been dismissed. The judge gives numerous sensible reasons in which either no flaw has been asserted, or the criticisms of which have no substance.
25. The determination of the First-tier Tribunal shall stand.
26. No anonymity direction has been requested or made.

14 November 2016
Upper Tribunal Judge Macleman