Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/04693/2018

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On the 19th April 2022
On the 28th April 2022

Before

UPPER TRIBUNAL JUDGE LINDSLEY

Between
SR
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr T Hodson, of Elder Rahimi Solicitors
For the Respondent: Ms A Everett, Senior Home Office Presenting Officer

Interpretation:

Mr A Resali-Ahadi in the Farsi language

DECISION AND REASONS

Introduction
1. The appellant is a citizen of Iran born in May 1987. She says that she left Iran in November 2012, and lived in Malaysia and Myanmar until October 2014. In October 2014 she entered the UK with a valid Tier 4 student visa, with leave to enter until 3rd October 2017. Whilst she had leave to enter as a student she made trips to Iraq and Turkey.
2. The appellant made an asylum application on 3rd October 2017, which was refused in a decision dated 27th March 2018. The appeal was firstly determined by Judge of the First-tier Tribunal Andonian on 6th June 2018, but his decision was found to err in law and was set aside in its entirety by Upper Tribunal Judge Blum in a decision promulgated on 5th September 2018. The appeal was remitted to the First-tier Tribunal and was re-determined by Judge of the First-tier Tribunal O’Callaghan, but that decision was found to err in law and was set aside by Upper Tribunal Judge Lane in its entirety. The appeal was remitted again to the First-tier Tribunal to be remade, and was dismissed on all grounds in a decision of First-tier Tribunal Judge Burnett promulgated on 26th February 2020
3. Permission to appeal was granted, and I found that the First-tier Tribunal had erred in law for the reasons set out in my decision which is at Annex A to this decision, and set aside the decision and all of the findings.
4. The matter comes before me now to remake the appeal.
Evidence & Submissions – Remaking
5. The evidence of the appellant from her statement and oral evidence is, in short summary as follows. She is a citizen of Iran born in 1987. She claims asylum because she believes that she is at real risk of being stoned to death in Iran as a result of being charged with and convicted in absentia of adultery, or at least an inhuman and cruel sentence of 100 lashes and a long prison sentence.
6. The appellant comes from the town of Rasht and was brought up by her mother after her father left the family home when she was 14 years old. She has a brother, and two half-sisters from her father’s remarriage but she has never met them.
7. She married her first husband, EAB, in Rasht in 2008. They did not have children. She moved with her husband to live in Tehran where he worked in a clothes shop and she studied architectural engineering at the university in March 2009. She married EAB, with whom she got on well, in part because a neighbour of her mother, Colonel MS, a senior officer in Ettella’at, had become obsessed with her, spying on her from his apartment opposite her family home and following her in the street, and offering her lifts. He wanted her to be his second wife. She did not tell EAB about this. Colonel MS was angry when she told him about her marriage when he called her after she and her husband had moved to Tehran. He then tried pursuing her via telephone calls but she simply did not pick up or respond to his messages. Colonel seemed to cease his interest: he did not go to visit her mother and in March 2009 the calls stopped.
8. The appellant was arrested on 20th June 2009 when she was a student at Tehran University because she got caught up in a student “green movement” demonstration. She was with her husband EAB, at the time and the two of them had not intended to participate in the demonstration. He managed to escape but she got caught and arrested. She was held in detention for four days, and her identity was clear because she had her Iranian ID card and student card on her at the time. She was ill-treated and interrogated. She was released on 24th June 2009 because Colonel MS, as senior officer in Ettella’at, was approached by her mother to help. Her mother did not know that he had been pestering her, and neither of them knew at that point that he also had an apartment in Tehran.
9. The appellant says that after she was released by Colonel MS, on the night of 24th June 2009, she was drugged and raped by him. He got her drunk with drugs mixed with alcohol in the sitting room of his Tehran apartment prior to the attack. He said he wanted to marry her, and that this would happen as she would divorce her husband as he was a drug addict. She agreed that she would divorce her husband to get out of the immediate situation.
10. Over the next few months Colonel MS called the appellant once or twice a week on her mobile phone trying to meet up with her. She said that she was busy with her studies, but under pressure she met him on two occasions at a restaurant, and afterwards sat in his car. She refused to go back to his Tehran apartment again. In November 2009 she told Colonel MS that she wanted him to leave her alone, that she was a married woman and did not intend to divorce her husband EAB. He persuaded her that she should see him one last time, and as she was scared of him she agreed to do this.
11. When the appellant met up with Colonel MS in November 2009, whilst they sat in his car, he showed her parts of a video of the time that he raped her in his apartment on the night of 24th/25th June 2009. He said he would disclose it to the authorities if she did not agree to marry him. The attack had been videoed in such a way as to mean that she was clearly identifiable but he was digitally obscured. The appellant was very scared of the Colonel, and so persuaded him that she would divorce EAB and marry him after she had completed her studies abroad, hoping he would lose interest in her in this time. He kept calling her. She believes that he agreed to her finishing her studies as he was obsessed with her, and deludedly believed that she loved him and so he even gave her some money for her studies in Malaysia.
12. The appellant divorced her first husband EAB in April 2012 by consent due to his opium addiction The appellant then left Iran and went to Malaysia as a visitor in August 2012. In Malaysia she met YMQ, an Iraqi citizen, who was studying engineering there, with whom she fell in love. She returned to Iran in October 2012, but returned to Malaysia again after ten days in November 2012, and stayed with YMQ. She left Malaysia and went to live as a visitor in Myanmar between February 2013 and February 2014, trying to sort out a student visa to study English. She came to the UK to study architectural engineering at London South Bank University in October 2014. She obtained her BSc in architectural engineering in July 2017. Her boyfriend, YMQ, returned to Iraq in December 2014. She met up with him in August 2015 in Turkey, and they spent five weeks together. In 2016 she travelled to Iraq to marry YMQ, and she visited him again in 2017.
13. On 23rd July 2017 the appellant told the Colonel that she had remarried YMQ. He had given her an ultimatum of summer 2017 to return to Iran and marry him or he would disclose the video. She hoped that he would see sense and give up on her but instead he was incensed and said he would cause her big problems. She believes that he is mentally unstable, and has behaved irrationally and cruelly.
14. On 30th August 2017 her family home was raided by the authorities in Iran. They showed her mother, FMB, an arrest warrant for the appellant and took her for interrogation about the appellant and her whereabouts. On 6th September 2017 the appellant’s mother received a telephone call summoning her to the prosecutor’s office. Her first husband, EAB, was also there. Her mother was told there was a video which showed the appellant having sex with a man other than her former husband, EAB, and that EAB agreed it was not him. Her mother told her that EAB had said that she would have to pay for betraying him during their marriage.
15. The appellant had an offer to study for a Masters degree in architectural engineering at London South Bank University starting in September 2017 but she was too upset to take up the offer. She made an asylum claim on 3rd October 2017 on the basis she was at real risk of serious harm if she returned to Iran.
16. The Iranian authorities visited the family home on 10th December 2017 and 19th February 2018. The appellant’s mother gave an undertaking to hand her over to the authorities if she returned to Iran. The appellant’s mother has confirmed to the appellant that the authorities continue to visit the family home with an arrest warrant for the appellant and a search warrant. In September 2019 the appellant was convicted in absentia of adultery by a court in Rasht, the Penal Court of Gilan and sentenced to death by stoning.
17. The appellant’s husband YMQ arrived in the UK in November 2019 and claimed asylum, he has since been granted refugee status following a successful appeal. They live together, and she is working and supporting him whilst he seeks employment.
18. The evidence of Mr YMQ, the appellant’s husband from his statement of September 2019 sent to the UK by email, and oral evidence is, in short summary, as follows. He confirmed that he meet the appellant in Malaysia in August 2012, and they fell in love there and kept in contact although the appellant went to study in the UK. He proposed whilst they were on holiday together in Turkey in 2015, and it was at this point the appellant told him her history of her previous marriage; the sexual assault by Colonel MS and the video of that assault, and the blackmail he was conducting regarding the video. He was naturally angry at the Colonel’s behaviour and upset at the appellant’s position. However they later went to Iraq and were married. He had hoped that Colonel MS would stop his behaviour and that they could live together in Iran but that did not happen. He has since come to the UK, and claimed asylum for reasons relating to his own problems in Iraq, and has been successful in winning his asylum appeal. His status papers were issued to him in December 2021. Since coming to the UK he has cohabited with the appellant.
19. The appellant also provided the following specific evidence (and where in Farsi with certified translations) in support of her asylum claim: statements and letters from her mother with her Iranian ID card; an SMS summonsing her mother to a court in Rasht; documents from the Penal Court of Gilan Province/ City of Rasht finding the appellant guilty of adultery and sentencing her to stoning to death; a letter from an Iranian lawyer, Mr Akbar Khalilfam, confirming the provision of legal advice to the appellant’s mother regarding the appellant, and the guilty verdict, and arrest warrant for the appellant. In addition the appellant filed relevant country of origin materials.
20. Ms Everett for the respondent accepted that she had not challenged the credibility of the evidence of the witnesses in her cross examination. She submitted that the reasons for refusal letter had properly relied upon issues of plausibility but in light of the supporting documentation which has been amassed over the period of the appeals, which now includes court documents which are not challenged by the respondent, this challenge cannot be sustained. As such she did not oppose the appeal. She indicated however she would oppose an application for costs should this be made.
21. Mr Hodson, do not need to make submissions in light of the position of the respondent and confirmed that he did not seek any costs, particularly as the latest appellant’s bundle had not been lodged in accordance with the time frame set out in directions.
Conclusions – Remaking
22. The respondent has accepted before the Upper Tribunal that the appellant has presented a credible claim for asylum, supported by relevant documentation, which is not challengeable on grounds of plausibility.
23. I find that that the appellant has shown to the lower civil standard of proof that she has a well founded fear of persecution in the form of excessive, cruel and degrading punishment for the offence (in Iranian law) of adultery by reason of her membership of a particular social group namely Iranian women. She is therefore entitled to refugee status, and for the same reasons her return to Iran would be a breach of Article 3 ECHR.

Decision:

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

2. I set aside the decision of the First-tier Tribunal.

3. I remake the appeal by allowing it on asylum and human rights grounds

Signed: Fiona Lindsley Date: 19th April 2022
Upper Tribunal Judge Lindsley

Annex A: Error of Law Decision

DECISION AND REASONS
Introduction
1. The appellant is a citizen of Iran born in May 1987. She says that she left Iran in November 2012, and lived in Malaysia and Myanmar until October 2014. In October 2014 she entered the UK with a valid Tier 4 student visa, with leave to enter until 3rd October 2017. Whilst she had leave to enter as a student she made trips to Iraq and Turkey. She made an asylum application on 3rd October 2017, which was refused in a decision dated 27th March 2018. The appeal was firstly determined by Judge of the First-tier Tribunal Andonian on 6th June 2018 but his decision was found to err in law and was set aside in its entirety by Upper Tribunal Judge Blum in a decision promulgated on 5th September 2018. The appeal was remitted to the First-tier Tribunal and was re-determined by Judge of the First-tier Tribunal O’Callaghan, but that decision was found to err in law and was set aside by Upper Tribunal Judge Lane in its entirety. The appeal was remitted again to the First-tier Tribunal to be remade, and was dismissed on all grounds in a decision of the First-tier Tribunal Judge Burnett promulgated on 26th February 2020
2. Permission to appeal was granted by Judge of the First-tier Tribunal Robertson on the 16th April 2020 on the basis that it was arguable that the First-tier Tribunal had erred in law in failing to properly consider the individual elements of the appellant’s claimed history and in making factual errors when considering the credibility of the appellant’s claim.
3. The matter came before me to determine whether the First-tier Tribunal had erred in law. The hearing was held at a remote Skype for Business hearing in light of the need to reduce the transmission of the Covid-19 virus, and in light of this being found to be acceptable by both parties and the matter being able to be dealt with fairly and justly in this way. There were no substantial difficulties with the hearing, although at one point Ms Cunha had difficulties with her audio reception being poor she confirmed that she was content to proceed.
Submissions – Error of Law
4. In grounds of appeal drafted by Mr T Hodson for the appellant it is argued, in summary, as follows.
5. That despite the history of two previous determinations of this appeal by the First-tier Tribunal there was a failure to show anxious scrutiny in this third attempt to provide a decision, and thus to consider the four key elements of the history that the appellant puts forward (namely that she attracted the attention of a colonel; that she was raped by that colonel; that there was a video tape of this; and that she was convicted of adultery) and to give reasons why each contention was found not to be credible. Instead the claim was found not to be plausible, and therefore not credible, by reference to an illogical overarching analysis. Further it is argued that the First-tier Tribunal has made careless factual errors, which then were held against the appellant and so were material to the appeal being dismissed.
6. Firstly it is argued that the First-tier Tribunal wrongly finds that the appellant only mentioned the important fact that the colonel was a neighbour in the last of her three statements but in fact information was in her first statement of 27th April 2018 at paragraph 21 and also in her asylum interview of 16th March 2018 at Q.77. Secondly it is argued that it was not accurate for the First-tier Tribunal to find that the colonel had had no interest in sexual relations after the rape, as details of his trying to subsequently lure her back to his apartment were given in the supplementary statement at paragraph 22. Thirdly it is argued there was no reference by the First-tier Tribunal to the aspect of the history whereby the appellant told the colonel that she was married for a second time (as set out in the supplementary statement at paragraphs 27 and 28) in an attempt to get him to desist. Fourthly it is argued, with reference to the fact that it was found to be relevant at paragraph 60 of the decision that there were no documents from lawyers with respect to the Iranian court proceedings, that there is no acknowledgement of the evidence from the appellant’s mother (in her letter) that she had consulted three lawyers, and the evidence that the first two lawyers were afraid to act and the third said there was nothing he could do to assist. It is contended that the difficulties for lawyers acting in Iran is consistent with country of origin materials, and that there was a failure to consider that corroborative evidence cannot always be expected.
7. It is also argued that the First-tier Tribunal failed to consider the documentary evidence in the round, and also that there was a misunderstanding that there were two inconsistent numbers on the documents: in fact the notice number and the verdict number are consistent throughout, so there are not issues of inconsistent numbering as found at paragraph 59 of the decision.
8. It is further argued that there is a failure to give sufficient reasons for the finding that the appellant has not explained her delay in claiming asylum at paragraph 53 of the decision; why the account of getting documents from her mother was not consistent at paragraph 61 of the decision; and why no weight is given to the evidence of the appellant’s second husband at paragraph 63 of the decision when his evidence was that he was told about the difficulties with the colonel in 2015, and thus a considerable period of time before the appellant made her asylum claim.
9. Ms Cunha argued that the general “plausibility approach” was properly open to the First-tier Tribunal and sufficiently reasoned but conceded that there were problems with the decision as identified in the grounds with the objection to the court documents by way of reference to their numbering; with the lack of consideration of the evidence as to why the appellant had no lawyer in Iran and the country of origin evidence on this point; and with a lack of reasoning as to why the evidence of the appellant’s husband was given no weight at all. In these circumstances she ultimately conceded that the reasoning in the decision of the First-tier Tribunal was insufficient.
10. Ms Cunha raised the issue as to whether the appellant had now to show that she had a well founded fear of persecution in Iraq, given that she was married to an Iraqi citizen, however it transpired that her husband is an asylum-seeker in the UK, and the instructions of Mr Hodson were that the appellant did not have Iraqi citizenship as a result of her marriage particularly as Iran does not allow dual citizenship. Ms Cunha did not pursue this point.
Conclusions – Error of Law
11. The key issue in this appeal is credibility: it was accepted by all that if the history was found credible that the appellant would be entitled to international protection, as set out at paragraph 48 of the decision of the First-tier Tribunal. The First-tier Tribunal then sets out, correctly, directions that a that a holistic approach should be taken to assessing the credibility of the claim at paragraphs 50 and 52 of the decision.
12. However, I find that as argued by Mr Hodson, and ultimately accepted by Ms Cunha, that the findings of the First-tier Tribunal err in law with respect to the Iranian court documents; the issue of the lack of an Iranian lawyer dealing with the contended adultery case; and the evidence of the appellant’s husband. The court documents, which on their face show that the appellant has been convicted of adultery and sentenced to death by stoning, were discounted at paragraph 59 of the decision on the basis that the numbering was inconsistent when in fact this is an error of fact as the verdict numbers and the case numbers are consistent across the documents. These documents are a central component in the assessment of the credibility of the appellant’s history. The evidence of the appellant’s husband is given no weight at paragraph 63 simply because he was not present when the persecution took place, and notwithstanding that his evidence is that he was told the history five years ago, and thus some two years prior to the making of the asylum claim, and no other objections are raised to the evidence whatsoever. This is not a rational or sufficiently reasoned approach to this evidence. It is held against the credibility of the appellant’s history that she had not confirmed that any lawyer had been consulted in Iran at paragraph 60 of the decision. However, the written evidence of the appellant’s mother is that she had tried to engage three lawyers, but none was able or prepared to help, and this is also referred to by the appellant in her asylum interview in response to question 130. This evidence is not considered by the First-tier Tribunal when concluding that this was a relevant matter to find weighed against her credibility. I also find that the First-tier Tribunal erred in finding that it had not been contended that the Colonel was a local person or neighbour at the start of the claim is wrong as this was mentioned in the asylum interview and in the first statement.
13. As pointed out by Mr Hodson many of the other findings against the appellant’s credibility are based on plausibility: essentially finding that it was not credible that the Colonel or the appellant would have acted as they did, for instance it was not credible she would have taken money from him for her studies abroad or that he would have permitted her to do this if he had wished to force her into a marriage and she had wished to resist this. I find that the errors of law identified above fundamentally flawed the consideration of the credibility of the appellant in the round and so the decision and all of the findings must be set aside.
14. It was agreed by the parties that the remaking should take place in the Upper Tribunal by way of a face to face hearing as there would be two witnesses (the appellant and her husband), and the appellant would use a Farsi interpreter. Mr Hodson and his clients were not shielding and so a face to face hearing posed no particular problems for them. Mr Hodson observed that the appellant’s husband had been refused asylum and was currently appealing his own refusal, but he did not have a date for that hearing.

Decision:
1. The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.
2. I set aside the decision of the First-tier Tribunal.
3. I adjourn the re-making hearing.

Directions
a. The remaking hearing will consist of a complete remaking of the appeal at a face to face hearing at Field House as there will be two witnesses and an interpreter.
b. Any further updating documentary evidence relied upon should be filed and served ten days prior to the remaking hearing.
c. The time estimate is 3 hours.
d. A Farsi interpreter is required.

Signed: Fiona Lindsley Date: 8th September 2020
Upper Tribunal Judge Lindsley