Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/06326/2016
PA/06353/2016

THE IMMIGRATION ACTS

Heard at Glasgow
Decision & Reasons Promulgated
on 24 March 2017
On 28 March 2017

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

C S SULTAN & D O HARISS
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellants: Ms N Loughran, of Loughran & Co, Solicitors
For the Respondent: Mrs M O’Brien, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellants appeal against a determination by First-tier Tribunal Judge Blair, dismissing their appeals against refusal of protection.
2. Ms Loughran relied upon the grounds. Trimmed of legalese, these assert that the judge “adopted the wrong burden and standard of proof – i.e. above that of the reasonable degree of likelihood”, and that “use of a higher burden and standard of proof is evidenced by”:
1) Failing to decide whether the appellants are in a relationship;
2) Stating that the issue was risk at the date of hearing, rather than on return;
3) Failing to afford due weight to photographic evidence showing the father of the first appellant in his rank of lieutenant colonel;
4) Failing to assess the status of the claimed relationship, and placing too much weight on the credibility of the appellants;
5) Failing to consider submissions on why the appellants could not be returned; failing to afford due weight to the photographs and by extension to the first appellant’s father’s power in the IKR, and to lack of documentation for return of the appellants;
6) Failing to consider submissions on the real risk of destitution if returned without documentation; and
7) Failing to consider lack of state protection.
3. Mrs O’Brien relied upon the SSHD’s rule 24 response, which argues that the grounds contain no more than disagreement on the facts. She further submitted that the decision was clear about burden and standard of proof; that the judge found that the evidence for the appellants failed to establish the case they advanced, and was not bound to resolve matters further than that; and that no case had been made, based on general difficulties and disadvantages on return.
4. Ms Loughran in response submitted that there was fundamental error in failure to find whether the appellants are in a genuine relationship, which went to the heart of the claim to be at risk of “honour killing” on return.
5. I reserved my decision.
6. The judge’s paragraph numbering is unfortunately muddled. After paragraphs numbered 13 to 17, he begins again at 15.
7. At the first paragraph 16, the judge says, “The relevant standard is that of a real risk and the burden is on the appellant to establish both that real risk and that the real risk exists at the date of the hearing of the appeal. This is proof to a low standard … far lower than proof on the balance of probabilities … equivalent to proof to the standard of reasonable likelihood.” He reminds himself in a paragraph which appears subsequently but is numbered 15.
8. There is nothing to suggest that at any point the judge thought the burden of proof was on the SSHD rather than the appellants (an error which might have tended in their favour, rather than against them). In talking of a “wrong burden” and of a “higher burden”, the grounds make no sense.
9. The judge’s self-direction on the standard of proof is impeccable. None of the specific grounds succeeds in showing that it was not applied throughout. This is simply a way of dressing up disagreement on the facts.
10. The standard way of assessing a protection case is on the hypothesis of return at the date of the hearing. Ground 2 fires well wide of any target.
11. The judge found major difficulties with the evidence, such that the appellants failed to prove the case they asserted. Nothing in the grounds shows that to have involved the making of an error on a point of law.
12. The judge said further at paragraph 27, “It is not necessary for me to make any finding on whether the parties are in a genuine relationship although plainly there are very significant credibility issues in that regard”.
13. The concern of the judge was primarily to decide whether the parties made out the case they asserted. He might have made an incidental finding on whether they are, beyond that, in a genuine relationship, but it would have been strictly irrelevant.
14. The appellants made some bare passing references to risk of destitution and to alleged lack of identity documentation but they made no coherent submission (either in the FtT or in the UT) on why such vestigial facts as they had succeeded in establishing might disclose entitlement to protection. There is no general entitlement of Iraqi citizens to international protection. Both say they are from the KRG. Absent the risk they asserted but failed to prove, they sketched out no case that they might not reasonably be expected to return there.
15. The determination of the First-tier Tribunal shall stand.
16. No anonymity direction has been requested or made.

27 March 2017
Upper Tribunal Judge Macleman