Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/05813/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 18 April 2017
On 21 April 2017

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

GN
(ANONYMITY DIRECTION MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr K Gayle, instructed by Elder Rahimi Solicitors
For the Respondent: Mr T Wilding, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant, GN, is a citizen of Iran who was born in 1991. He appealed against a decision of the respondent dated 24 May 2016 refusing him asylum. The First-tier Tribunal (Judge Beg) in a decision promulgated on 25 November 2016 dismissed the appeal. The appellant now appeals, with permission, to the Upper Tribunal.
2. The appeal turns on credibility. For the reasons I give below, I find that the judge has erred in law such that her decision falls to be set aside.
3. First, I should say that I do not find merit in several of the challenges to the judge’s credibility findings. At [17], the judge had found that the appellant had given inconsistent evidence regarding whether or not he had telephoned his family on the same day of the demonstration in 2015 in which he had nearly been arrested. The appellant asserts that the answers which he gave at asylum interview, in particular his answer to question 57, showed that he had given evidence early on in his claim that he had telephoned his family on the same day as the demonstration. In his oral evidence, the appellant said that following the demonstration he had been telephoned by his brother-in-law three days later. What the appellant actually said in his interview in answer to question 57 was: “After escaping from the area I called my family and I told them this is what has happened I am here at the moment and I didn’t know where to go and I was hiding and sleeping in the parks for three nights to avoid being arrested.” The English is not good, having passed through interpretation, but I have to say that the sentence only makes any sense if the appellant telephoned his family three days after the demonstration. If he did contact them on the day of the demonstration (as he claims) then it makes little sense that he would have then told them then that he intended to hide and sleep in the park for three nights thereafter. The sentence only makes sense if the telephone call was made after the appellant had hidden and slept in the park for three nights.
4. Likewise, the challenges made to the judge’s findings regarding the amount of money paid to facilitate the appellant’s escape [20] and his failure to contact his family in Iran from the United Kingdom [21] amount to no more than disagreements with the judge’s finding.
5. The problem in the judge’s decision appears at [19]. The judge makes a clear finding that the appellant had “never been arrested or questioned by the authorities in Iran”. At least part of the reason for reaching that finding is that she found “that if the authorities considered that the appellant had committed an offence and that they had him on video recording attending a demonstration in 2012 they would not have waited for three years before producing that evidence to his family.” The appellant claimed to have attended demonstrations in 2012 and 2015. The appellant’s evidence had been that the authorities had obtained a video recording of the appellant’s participation in the 2012 demonstration from a mobile phone of one of his friends arrested at the 2015 demonstration. It was the appellant’s case, therefore, that the video had only been obtained by the authorities after the 2015 demonstration. There had, therefore, been no three year delay between the authorities obtaining the video and producing it to the family.
6. The judge’s error is unfortunate. However, because she has correctly carried out a holistic analysis of all the evidence before reaching any conclusion as to the appellant’s credibility, it is simply not possible to separate out her inaccurate finding regarding the video of the demonstration from her other (apparently sound) findings. I simply do not know the extent to which the finding at [19] counted in the overall analysis. In the circumstances, a new fact-finding exercise will need to be carried out. Although I set aside all the findings of fact, the difficulties apparently encountered by the appellant in giving consistent evidence before the judge remain a matter of record and may well be a subject for cross examination before the next Tribunal.
Notice of Decision

The decision of the First-tier Tribunal promulgated on 25 November 2016 is set aside. None of the findings of fact shall stand. The appeal shall be remitted to the First-tier Tribunal (not Judge Beg) for that Tribunal to remake the decision.

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 20 April 2017

Upper Tribunal Judge Clive Lane

No fee is paid or payable and therefore there can be no fee award.

Signed Date 20 April 2017

Upper Tribunal Judge Clive Lane