Tribunal decisions

The decision

IAC-AH-sc-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/05654/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 30th January 2017
On 08 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE J G MACDONALD

Between

s h
(ANONYMITY DIRECTION made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms C Hulse of Counsel, instructed by Duncan Lewis & Co
For the Respondent: Mr P Singh, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a national of Afghanistan whose appeal against the refusal of his asylum and human rights claim was dismissed by First-tier Tribunal Judge Burns in a decision promulgated on 20th October 2016.
2. The judge gave a number of reasons for dismissing the appeal on credibility concluding that the account was "fabricated in its entirety" (paragraph 103).
3. The grounds of application note that the Secretary of State had erroneously claimed that the Appellant had been in the UK for two years before claiming asylum and on that basis had claimed that the Appellant's credibility was undermined. The judge had found that the two year mistake was only a typographical error. The grounds question whether the writer of the refusal letter was not more inclined than otherwise to find the Appellant untrustworthy. In terms of the Appellant not claiming asylum before he arrived here the decision did not disclose any consideration of whether it would be reasonable to expect the Appellant from Afghanistan to know of the requirement under the Dublin Agreement.
4. Ground 5.(i) states that there was no reason why either the police or the family would have been aware that one of the Taliban had been killed until the following morning - contrary to the judge's findings. Further grounds are mentioned. First-tier Tribunal Judge Hodgkinson considered the grounds were arguable and gave permission to appeal in a note dated 15th November 2016.
5. A Rule 24 notice was lodged stating that the judge had made reasoned credibility findings which were open to her and there had been discrepant evidence with regard to whether the Appellant had gone to Commander Sarwar's house. Furthermore there was delay in claiming asylum and reliance could not be placed on the documents provided as per Tanveer Ahmed principles.
6. Thus the matter came before me on the above date.
7. For the Appellant Ms Hulse submitted that the two year delay point was the kernel of the case and such an erroneous finding had tainted the Secretary of State's reasoning and indeed the judge's.
8. Given that there was no merit in this point I have to say I gave short thrift to it pointing out that the judge (paragraph 77) had found there was not a delay in claiming and the Appellant's credibility was not thus damaged. Ms Hulse was also critical of the judge giving "some limited weight" to Section 8(4) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 but it seems to me there is no merit to this criticism either. In terms of the Act the judge was bound to consider the terms of Section 8(4) and cannot be faulted for giving "some limited weight" to it.
9. I alerted Ms Hulse that what was of more concern was the findings at paragraph 88 and 89 that there was an inconsistency in the evidence which damaged the Appellant's credibility in relation to the fact that his mother would have known that one of the Taliban had been shot - duly challenged in the grounds.
10. Ms Hulse submitted that the Appellant had been perfectly straightforward in recognising the document referred to in paragraph 83 of the judge's decision although appeared to accept that the judge cannot be faulted in saying that while this did not go to the core of his claim it went "some small way" to undermining his general credibility as to the truthfulness of his evidence. In response to submissions from Mr Singh Ms Hulse submitted the judge had gone too far in her assessment in paragraph 99 it being said that it was not credible the guard would release the Appellant as he would no doubt be risking his own life. Ms Hulse submitted that this took no account of the fact that there were tribal allegiances in Afghanistan.
11. In all the circumstances I was invited to conclude that there was a material error of law in the judge's decision, set that decision aside, and remit the case to the First-tier Tribunal.
12. For the Secretary State Mr Singh relied on the terms of the Rule 24 notice. The judge had acknowledged that the Appellant had not delayed claiming asylum for two years. Nothing turned on that anymore. The judge had been entitled to conclude that the fact that he was missing for some eight months or more and that his family were not targeted during his absence did not sit well with the background evidence. If there was an error at paragraphs 88 and 89 about whether his mother should have known what was going on since she was there the error was not material having regard to the overall findings. As such the decision should stand.
13. I reserved my decision.
Conclusions
14. While the Secretary of State's view on the Appellant's credibility may have been tainted by the finding that there was a two year delay in the Appellant claiming asylum the same cannot be said for the judge who was quite emphatic that there was no such delay in claiming. As the judge put it "the Appellant's credibility was not thus damaged" (see paragraph 77 of the decision). The judge was careful in her use of language indicating that "some limited weight" should be applied under the Section 8(4) point and that the core of his claim was reduced in some "small way" (paragraph 83).
15. It is plain that the Appellant's account was a difficult one to properly assess given the manner in which it was given. One of the problems is the way the interview was conducted from question 47 onwards. The Appellant is asked a question and then spends two and a half pages answering it - apparently without any interruption from the interviewer. The judge was then not assisted by the witness statement that the Appellant lodged before her in that this deals only with the terms of the Home Office refusal letter. It is unclear why the terms of the witness statement are so limited. The lack of a full witness statement did not assist the judge in assessing the credibility of the Appellant. Much of the judge's decision is based on the implausibility of the Appellant's account but it is not easy to see how those alleged implausibilities entitled the judge to conclude that his detailed account was "fabricated in its entirety" (paragraph 103).
16. One of the sections referred to in the judge's decision is the fight between the Taliban and the police commencing at paragraph 87 with the conclusion in paragraph 89 that the inconsistency in the evidence damaged the Appellant's credibility. It seems to me that this conclusion is not justified on the basis of the evidence presented. As the grounds put it there was no reason why either the police or the Appellant's mother would have been aware that one of the Taliban had been killed until the following morning. While the Appellant's mother was "present" (paragraphs 88 and 89) when the fight broke out the evidence suggests she was only present in the sense that she was inside the house and would therefore not know that one of the Taliban had been shot. It therefore seems that the judge erred in saying there was an inconsistency which damaged the Appellant's credibility. Looking at the decision as a whole this was a material finding; the fact that the judge's reasoning on this point cannot stand is arguably enough, in itself, to be categorised as a material error of fact which, in this case, translates to a material error of law.
17. The next section of the judge's decision is headed "Commander Sarwar's house?" This passage is not easy to follow. It was the Appellant's oral evidence that he did not go to Commander Sarwar's house but went to the outpost with him having initially said that he went "to his house in Maidan Wardak". The conclusion of the judge was that the Appellant had changed his account but it is difficult to glean the reasoning for this at paragraphs 90 to 94 inclusive. While it might be said that the evidence is unclear that is not the same at all in concluding that the Appellant had changed his account. I very much doubt that this finding can be relied upon. As indicated above the finding that the Appellant has fabricated the account in its entirety is not adequately reasoned and judging from the extensive detail provided by the Appellant is highly likely to be wrong.
18. In my view, for the reasons stated, the decision of the judge is not safe and cannot stand.
19. In these circumstances the decision of the First-tier Tribunal is therefore set aside in its entirety. No findings of the First-tier Tribunal are to stand. Under Section 12(2)(b)(i) of the 2007 Act and of Practice Statement 7.2 the nature and extent of the judicial fact finding necessary for the decision to be remade is such that it is appropriate to remit the case to the First-tier Tribunal.

Decision
20. The making of the decision of the First-tier Tribunal did involve a making of an error on a point of law.
21. I set aside the decision.
22. I remit the appeal to the First-tier Tribunal.

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

Deputy Upper Tribunal Judge J G Macdonald