Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: pa/04496/2018

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 15 January 2019
On 13 March 2019

Before

DEPUTY UPPER TRIBUNAL JUDGE I A LEWIS

Between

M.A.
(anonymity direction made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr J Walsh of Counsel instructed by Rodman Pearce Solicitors
For the Respondent: Mr S Kotas, Senior Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal against the decision of First-tier Tribunal Judge M A Khan promulgated on 22 June 2018 dismissing the appeal against a decision dated 22 March 2018 to refuse asylum in the United Kingdom.

2. The Appellant is a citizen of Iran. His date of birth has been the subject of dispute: I make some observations on this issue below.

3. The Appellant claims to have left Iran on 23 November 2015. There is on file evidence that he was fingerprinted in Lesbos on 28 November 2015: see Respondent's bundle before the First-tier Tribunal at E8. The Appellant arrived in the United Kingdom on 6 January 2016 and claimed asylum on 7 January 2016. A screening interview was conducted on 24 February 2016 and an SEF and witness statement returned dated 8 June 2016. A substantive asylum interview was conducted on 4 July 2016.

4. The Appellant's application was refused for reasons set out in a 'reasons for refusal' letter ('RFRL') dated 22 March 2018.

5. The Appellant advanced his application for asylum on the basis of a claimed risk of persecution on religious grounds. He has given an account of having become interested in Christianity through a Christian friend in Iran. This led him to ask questions of the teacher of religious classes at his school, such questions challenging aspects of Islam. After the first such occasion the Appellant was forced to sign a declaration by the teacher and the headteacher at his school that he would not in the future challenge or question Islam; he says he was also slapped by his religious teacher. Notwithstanding this experience and the signing of the declaration, it is the Appellant's case that on a second occasion he raised the same or similar questions in respect of Islam. On this occasion it resulted in him being beaten by the religious teacher in front of the other students in the class. In consequence of this event the Appellant's family members made arrangements for him to leave the country.

6. Since he has been in the United Kingdom the Appellant says that he has continued to explore his interest in Christianity and this culminated in his baptism on 18 February 2018. He says he has continued to observe his Christian faith since that time.

7. In refusing the Appellant's application the Respondent essentially did not accept his narrative account of events in Iran. In respect of the Appellant's claimed continuing interest in Christianity whilst in the United Kingdom, the Respondent did not accept that the Appellant had a genuine interest in Christianity (RFRL at paragraph 46).

8. The Appellant appealed to the IAC.

9. The appeal was dismissed for the reasons set out in the 'Decision and Reasons' of Judge Khan promulgated on 22 June 2018.

10. The Appellant applied for permission to appeal to the Upper Tribunal. Permission to appeal was refused in the first instance by First-tier Tribunal Judge Grant-Hutchinson on 10 July 2018. However, permission was granted by Upper Tribunal Judge Coker on 2 November 2018.

11. The Respondent has filed a Rule 24 dated 31 December 2018 response resisting the appeal. However, before me Mr Kotas on behalf of the Secretary of State did not seek to rely upon the Rule 24 response - and indeed in due course essentially acknowledged that there was substance to certain aspects of the challenge brought by the Appellant to the decision of Judge Khan.

12. With some hesitation I am just persuaded that the decision of the First-tier Tribunal is in material error of law and requires to be set aside.

13. I do not accept that there is any substance in the challenge raised in the grounds of appeal to the First-tier Tribunal Judge's consideration of section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. I note the following.

(i) The Appellant produced a birth certificate in support of his claimed identity and date of birth. This was subjected to analysis by the Respondent, and a document examination report was produced (Respondent's bundle at F1). In material part it states:

"The document has been chemically washed with all original handwritten details removed and new details added. The removed details are not visible with the naked eye but the original inks become clear when the document is illuminated with ultraviolet light. Only one set of inks is expected in a genuine unaltered document and it is my opinion that the new set of details have been unlawfully added. This document cannot be relied upon as evidence of the holder's nationality or identity."

(ii) The Respondent commented upon this in the RFRL at paragraph 48, and at paragraph 49 relied upon this circumstance to invoke section 8 of the 2004 Act.

(iii) I acknowledge that the citation of section 8 at paragraph 49 is in error in that it refers to a sub-section that relates to passports - section 8(3). Mr Walsh, however, acknowledged that section 8 is not limited to issues in relation to passports. Indeed, the following is to be observed in respect of section 8(2):

"This section applies to any behaviour by the claimant that the deciding authority thinks:

(a) is designed or likely to conceal information;

(b) is designed or likely to mislead; or

(c) is designed or likely to obstruct or delay the handling or resolution of the claim or the taking of a decision in relation to the claimant."

Section 8(3) is expressly declared to be "Without prejudice to the generality of subsection (2)", and necessarily is therefore not intended to provide a prescriptive or complete list of circumstances in which section 8 might be engaged.

(iv) In such circumstances I am satisfied that the Judge was entitled to take into account that "The appellant has not explained the replacement of the information on the birth certificate" as engaging section 8 of the 2004 Act (paragraph 39).

(v) It is pleaded in the grounds of challenge in this regard that the judge has not explained what was meant in the Decision by "replacement of the information on the birth certificate". It seems to me that in the context of the case nothing further was required by way of explanation: it was plain and obvious.

14. In all the circumstance I consider this particular line of challenge to have been misconceived. Indeed Mr Walsh acknowledged as much and did not seek to pursue the point before me.

15. Nor do I accept that there is any substance in the point - not pleaded in the grounds of appeal but identified by Judge Coker in the grant of permission to appeal - to the effect that the First-tier Tribunal Judge made no finding on whether or not the Appellant had been baptised. In this context it seems to me that the First-tier Tribunal Judge did not in any way dispute the fact of the Appellant having gone through a baptism ceremony, but rather concluded with adequate clarity that it was not accepted that the Appellant was genuine in this regard - "I do not accept that he has genuinely converted to Christianity." (paragraph 40). This reflects the issue in the appeal raised in the RFRL that the Appellant's interest in Christianity was not genuine. In such circumstances it was not necessary to make any express finding on the fact of baptism, and to this extent any such overt omission was not material to the Judge's overall conclusion.

16. The grounds of appeal raise an issue further to the Judge's following observation:

"The appellant stated that he had been interested in the Christian religion from the time of his conversations with [A]. He entered the UK in January 2016 and yet there is no evidence of him attending any Christian place of worship until 6 August 2017. I find that these are not actions of someone who has been seeking religious answers to burning questions and yet does not immediately set about satisfying himself about religious issues to which he could not find answers to in Iran." (paragraph 36).

17. In context it is clear that the reference to 6 August 2017 is to the date specified in a supporting letter dated 24 April 2018 from the pastor of the church at which the Appellant was baptised (Appellant's bundle before the First-tier Tribunal at page 12). The letter states, amongst other things, that the Appellant had attended the church from 6 August 2017. There is no other documentary evidence suggesting or demonstrating attendance at any church in the UK at any earlier time. However, the Appellant's own testimony was adequately clear in asserting that he had attended churches in the UK prior to his first attendance at the church from which the letter originates: e.g. see asylum interview record at questions 105- 107. At interview the Appellant referred to having attended two churches within the two weeks prior to the date of interview. This would put his attendance at church in the UK at least as early as mid-June 2016.

18. It might be said that when the judge referred to there being "no evidence" of the Appellant attending any Christian place of worship until 6 August 2017 he simply meant 'no supporting evidence'. If that be the case, it still leaves the difficulty that there is no evaluation of the Appellant's own testimony in this regard, which is seemingly unaddressed.

19. If it were the case that the Judge's findings in respect of the Appellant's credibility were otherwise clear and sustainable I might have been prepared to infer that it was adequately clear that the Judge in substance concluded that the Appellant had not shown that he had conducted himself after arrival in the UK in a manner consistent with his claimed interest in Christianity, and that accordingly his attendance at a church in August 2017 should be seen from such a perspective, prompting warranted scepticism.

20. However, I am unable to reach such a conclusion in respect of the Judge's evaluation of credibility.

21. The judge considered the Appellant's evidence in relation to his account of his friendship with a Christian boy in Iran, notwithstanding his family's own Islamic faith:

"The appellant states that his mother is a religious lady and she would not let him go to his Christian friend's house. I do not accept his evidence that his mother would have allowed him to attend his friend's cousin's wedding in a Church. In paragraph 10 of his statement he states that [A]'s family and his family have a 'close relationship' despite the differences in their religions. I find that this is in addition to his evidence in order to overcome earlier statements" (paragraph 35).

22. In this context it is to be noted that during the course of his asylum interview the Appellant was questioned about the circumstances in which his family permitted him to socialise with, and visit the home of, a Christian friend - and indeed to attend a Christian ceremony of marriage with his friend. The Appellant offered some reasons in this regard. For present purposes I do not express any view as to the overall consistency of those reasons, or the presentation of those reasons. Nonetheless it is clear that the Appellant offered an explanation relating to such matters: having shared aspects of his faith with his friend it was thereafter reasonable for his friend to share aspects of his faith with the Appellant (question 65); there was a suggestion of relative indifference on the part of the Appellant's parents in this regard because notwithstanding the difference of faith his friend's family were "very good people", "nice people" (question 73).

23. Further to the above I accept that there is some substance to the Judge's observation that the reference to the Appellant's family having a 'close relationship' to his friend's family is not overt in the interview, and as such constitutes an additional detail in the evidence. However, given that the Appellant had already offered reasons for his family permitting him to socialise with a Christian friend and attend Christian ceremonies, there was not on the face of it any 'earlier statement' that required to be 'overcome' - cf the Judge's comment "I find that this is an addition to his evidence in order to overcome earlier statements".

24. Accordingly, in my judgement it is unclear what the Judge meant by 'overcoming earlier statements', and it follows that the Judge's apparent attribution of a motive for deception is at best unexplained, and most likely unfounded in this regard. I conclude that the Judge's evaluation of this aspect of the Appellant's account - and the adverse finding on credibility in this regard - was without clear foundation.

25. I am also persuaded that there is a further instance of an adverse view of credibility being reached without sound premise. This relates to the Appellant's account of obtaining a copy of his birth certificate through his uncle, notwithstanding that the Appellant claimed to be a wanted person. The Judge considered this at paragraph 38 and essentially found that the Appellant's explanation of how his uncle had been able to obtain the document through the authorities was not credible. It seems to me that this was to reach a conclusion without any regard to the background country evidence - which makes it clear that corruption in Iran is such that it is possible to obtain documents irrespective of circumstances. (For the avoidance of any doubt, my analysis in this context is not to disregard the primary difficulty in respect of the birth certificate in that it was found by the Respondent to be a forged document; my concern herein is only with the Judge's analysis that the Appellant's narrative account of how his uncle could obtain such a document was unsustainable - and the consequent impact upon the assessment of the Appellant's credibility. In isolation I would not have considered the Judge's comments in this regard to amount to a material error.)

26. The Judge's adverse view of the Appellant's credibility in respect of these two matters - the unsustainable attribution of motive for deception in respect adding detail to his explanation of his parents permitting him to be friendly with a Christian boy, and the finding against the weight of country information in respect of the plausibility of obtaining documents from the authorities notwithstanding an adverse interest - cannot be isolated from the overall 'in the round' credibility assessment. In combination with the failure to make any specific assessment of the Appellant's oral testimony as to his attendance at churches prior to August 2017, I am ultimately persuaded that there are material errors of law in the Judge's reasoning such that the decision of the First-tier Tribunal must be set aside.

27. The parties before me were in agreement that in light of any finding of error of law the decision in the appeal would require to be remade before the First-tier Tribunal by a different judge with all issues at large. I agree with this position.

28. Notwithstanding that the decision in the appeal will hereafter be a matter for a different judge, it seems to me that it is appropriate that I make some further comments in respect of the age dispute that has arisen herein - and indeed in respect of the age assessments that have been conducted - in case either party wishes to consider its position further in respect of these matters, and/or to file any new evidence ahead of the next appeal hearing. For reasons that are not clear, it is a feature of the decision of Judge Khan that no consideration appears to have been given to this issue, and in particular no consideration appears to have been given to the extensive documentation at Annex I of the Respondent's bundle in respect of the age assessments. The documents make for interesting reading and contain within them significant matters which I suggest should not be overlooked in any new evaluation of the Appellant's account and credibility.

29. I have already noted above the issue in respect of the Appellant's birth certificate. Further to this it is to be noted that in considering the Appellant's application for asylum the Respondent conducted checks on the Appellant's immigration history. It was identified that he had previously been included in an application for entry clearance made to the British Embassy in Iran, at which point his date of birth had been given as 22 February 1997. In response to this being raised the Appellant produced a statement purportedly from his father seeking to explain the circumstances in which the date of birth of 22 February 1997 was given in the visa application (Annex F4 of the Respondent's bundle). The statement from the Appellant's father maintains that the Appellant's real date of birth is 23 February 2003, and suggests that a false date of birth of 1997 was used in support of a visa application to improve the prospects of obtaining that visa. It is entirely unclear why it was thought that adding six years to the age of the Appellant at that time would increase the prospect of obtaining a visa. Moreover, it might be inferred that in order to advance a supposedly false date of birth in support of the visa application, it would have been necessary to obtain a travel document from the authorities of Iran showing the same supposedly false date of birth in order to be submitted with the visa application. It may be thought - and perhaps will need to be determined on rehearing - that the obvious inference is that the Appellant's real date of birth is as it was declared in the earlier visa application, supported by a duly issued Iran passport.

30. The date of birth in the visa application is a matter commented upon in the age assessment documents.

31. Perusal of the age assessment documents reveal that the Appellant was initially age assessed in 2016 and accorded the date of birth of 22 January 2000. On a subsequent assessment he was accorded the date of birth of 23 February 2003. On a third assessment, in light of the evidence from the Secretary of State as to the earlier application for a visa wherein his year of birth was given as 1997, he was assessed as having been born on 22 February 2000.

32. This latter assessment - reverting to the birth year attributed after the initial assessment - whilst clearly informed by the evidence of the earlier visa application is not itself reconcilable with the information contained in the earlier visa application.

33. Further to this, the age assessments also reveal matters which may be of relevance in evaluating both the Appellant's age and his overall credibility. For example, references are made to inconsistency in the Appellant's claims as to when he had stated shaving, and it was observed that he had shaved his chest hair. See or example at I16:

"As has been discussed within this assessment, [M] advised that he had only started shaving very recently. However, this directly contradicts the information he provided within the second age assessment in which he advised that he had only just started then. [M] was challenged on this account and we advised him that his shaving shadow did not support his statements however he remained adamant that this was the case.

During the third interview and the interview when [M] was given the outcome of this assessment the assessors noted that [M] had shaved his chest, which has now grown out and that the hair on his arms was quite thick and did not appear to be in line with or support his claimed age."

34. The extent to which the hirsuteness of the Appellant informs any age assessment and - perhaps more particularly - the apparently contradictory accounts in respect of when he started shaving and the seeming attempts to disguise his chest hair, may be matters to which the Tribunal will wish to give some further scrutiny in the context of both considering whether the Appellant has taken steps to obscure his true age, and his credibility overall.

35. Further it is to be noted that the Appellant's true age is potentially relevant to an evaluation of the narrative account of events in Iran - in particular that he was in 2015 essentially, he says, a young schoolboy asking innocent questions about faith, rather than somebody who, at that time, might already have reached adulthood.

36. Yet further it is to be noted that there are passages in the age assessments that might also be relevant to evaluating the Appellant's narrative account independently of their relevance to his age. See for example at I15, where the assessors explore aspects of the Appellant's history with regard to the circumstances surrounding his brother 'Mj':

"The circumstances surrounding [Mj]. Until this VISA application was presented to [M], there was no suggestion from him that [Mj] was anywhere else but Iran, in fact he gave quite clear details of his whereabouts. Since then, [Mj] is now reported to be in the UK, however, no-one is aware of his whereabouts (but there is an address on the VISA, which [M] voices he knows no details of). In addition, [M] spoke about the family last having contact with him 15 years ago, but if [M] is his claimed age, then he will not have been alive when this happened and therefore, could not have gone to the gym with him like he suggested in his first assessment".

37. It seems to me that these matters arising from the age assessments - which do not appear to have caught the attention of the First-tier Tribunal hitherto - will, alongside all other issues in the appeal, require some further careful scrutiny by the parties and the next Judge. I do not seek to say anything further, and nothing that I have said in setting out these matters above should be seen as in any way prescriptive of how such matters should ultimately be dealt with by the next decision-maker.

Notice of Decision

38. The decision of the First-tier Tribunal Judge is set aside for error of law.

39. The decision in the appeal is to be remade before the First-tier Tribunal by any judge other than First-tier Tribunal Judge M A Khan with all issues at large.

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: 11 March 2019

Deputy Upper Tribunal Judge I A Lewis