Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/08623/2017

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 24 April 2018
On 30 April 2018

Before

UPPER TRIBUNAL JUDGE blum

Between

RM
(anonymity direction MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms C Warren, Counsel, instructed by Paragon Law
For the Respondent: Mr D Clarke, Senior Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal against the decision of Judge of the First-tier Tribunal Chapman (the judge), promulgated on 21 December 2017, in which he dismissed the appellant's appeal against the respondent's decision dated 23 August 2017 refusing his protection claim.

Background
2. The following is a summary of the appellant's protection claim. The appellant is a Kurdish national of Iran, born in January 2000. He lived in a village near Piranshar Town, in north-western Iran with his father, who is a farmer, his mother, a housewife, and his younger sister. The appellant also has a paternal uncle who lives in Piranshar Town. The appellant did not attend school and is illiterate. Although raised as a Muslim he no longer associates himself with religion, although he maintains a belief in God. When he was 16 he became involved with the Kurdistan Free Life Party (PJAK) through Soran, a friend who lived on the next farm. The Iranian authorities regard the PJAK as a terrorist organisation. The appellant's role in the organisation was to purchase shoes and food for the party and to publish and distribute leaflets. On one occasion the appellant bought 10 pairs of shoes, and another 10 pairs of shoes on another occasion some months later.
3. The appellant would often walk to Piranshar Town to sell dairy products and would sometimes stay with his paternal uncle overnight. Around the end of September 2016 or the beginning of October 2016 the appellant was staying with his uncle when his mother telephoned to say that Soran had been arrested and his house searched by the authorities. She then telephoned to say that the authorities had been to their house because Soran had disclosed his involvement with the PJAK. The appellant's uncle placed him in hiding in his orchard for around 3 days and arranged for an agent to take him out of the country. The appellant was taken to Turkey and then to Bulgaria, where he was fingerprinted on 29 October 2016 and 30 December 2016, and then to France. The appellant arrived in the UK on 10 March 2017 and claimed asylum the following day.
4. The respondent accepted the appellant's age (he was 17 years old), and his ethnicity and nationality. The respondent did not however accept that the appellant was involved in the PJAK and rejected this aspect of his account as incredible. Because the appellant had not spoken openly of his rejection of Islam the respondent did not accept that the appellant had renounced his faith in Iran, although it was accepted that his refusal to abide by the Muslim faith amounted to a renunciation of it.
The decision of the First-tier Tribunal
5. The judge heard oral evidence from the appellant and considered a bundle of documents containing, inter alia, two witness statements from the appellant and a country expert report authored by Roya Kashefi, dated 7 December 2017.
6. The judge set out a summary of the appellant's protection claim, the reasons for the respondent's refusal of that claim, and noted the documents before him. The judge reminded himself of the principles set out in AM (Afghanistan) v Secretary of State for the Home Department [2017] EWCA Civ 1123 concerning child and vulnerable appellants, the Practice Direction 'First-tier and Upper Tribunal Child, Vulnerable Adult and Sensitive Witnesses', issued on 30 October 2008, and the joint Presidential Guidance Note No 2 of 2010. The judge additionally recorded the submissions from the appellant's representative in respect of UNHCR and other guidelines to be followed when assessing the credibility of child witnesses, and the influence that can be exerted on them by agents.
7. The judge summarised the ill-treatment meted out by the Iranian authorities to those associated or perceived to be associated with the PJAK. At paragraph 45 the judge referred to background evidence supporting the appellant's description of the manner in which the organisation operated. At paragraph 46 the judge considered the expert country report noting that the appellant's account of his life was said to be in keeping with available evidence about the region in which he lived. The judge set out an extract from the expert report indicating that the appellant displayed a good knowledge of the PJAK which was not readily available or was not public knowledge. At paragraph 47 the judge noted that the appellant's account was consistent with the background and expert evidence and, on that basis, his account was plausible.
8. The judge nevertheless found the appellant's account to be incredible. At paragraph 48 the judge set out 8 reasons for doubting the appellant's claim. In summary, the judge found the appellant's account of his involvement with the PJAK to be "very generic", that the appellant failed to give a detailed description of his activities with the organisation or the reasons for his involvement, that he failed to explain how he was able to transport 10 pairs of shoes and an amount of food without drawing attention to himself, but he did not satisfactorily explain how he was able to distribute leaflets at night without this coming to his families attention, that he did not give adequate details relating to Soran's arrest, and that there was no adequate explanation as to why the authorities did not look for him at his uncle's house. The appellant's account of why he was at his uncle's house and the frequency with which he went there was said to be inconsistent. The judge was not satisfied that the appellant's uncle would not have told him to claim asylum in the 1st safe country, or with the appellant's explanation how he was able to locate the same agent after being released from detention in Bulgaria. Finally, the judge held against the appellant the absence of any explanation as to how his poor and uneducated family was able to find the money to pay for an agent at short notice.
9. Having found the appellant's claim incredible, the protection and article 3 human rights appeals were dismissed.
The grounds of appeal and the parties' submissions
10. The grounds contend that, despite paying lip service to the relevant guidance on assessing evidence from minors, the judge failed to apply that guidance when assessing the appellant's evidence. The grounds further contend that the judge's conclusions were unduly speculative, that the judge drew adverse credibility findings in circumstances where the appellant was never notified of the judge's concerns, and that some of the judge's reasoning was not supported by the evidence before him.
11. In their oral submissions Ms Warren and Mr Clarke went through each of the 8 reasons identified by the judge in paragraph 48 to support his adverse credibility findings. I indicated to the representatives at the end of the hearing that I was satisfied the judge's decision was unsafe and that the case would need to be remitted back to the First-tier Tribunal to be decided afresh.
Discussion
12. In determining whether the judge made material legal errors in his assessment of the appellant's credibility I caution myself against substituting my own view of the appellant's evidence. I further remind myself that the judge heard oral evidence from the appellant and is best placed to make a credibility assessment. It is only if the judge has reached material findings in a procedurally unfair manner, or has taken account of irrelevant considerations or failed to accord weight to relevant factors, or reached a decision that no reasonable judge properly directing himself could have reached, that I am entitled to set aside his decision.
13. In paragraph 48(1) the judge drew an adverse inference on the basis that the appellant's account of his involvement with the PJAK was "very generic" and less detailed than his account of his journey to the UK. The judge provides, by way of example in paragraph 48(2), the unsatisfactory explanation given by the appellant as to why he was persuaded to participate in PJAK activities given that it would put himself and his family at significant risk. The judge does not actually make any reference to the appellant's evidence in support of his finding. In his asylum interview, at question 40, the appellant was asked why he wanted to join the party. He gave four distinct reasons; the party "looked after nature", it looked after the Kurdish people, it supported equality between men and women, and it did not want any borders between the four parts of Kurdistan. The appellant was not asked any follow-up question about the risks involved in joining the PJAK either to himself or in respect of his family. The appellant was later asked how he felt when he saw and heard information transmitted on a PJAK satellite channel, and he answered, "I felt very discomfortable [sic], I wanted to do anything against Iran." The appellant later referred to the oppression of the Kurds by the Iranian regime (question 64). In his statement dated 28 June 2017 the appellant referred to the oppression of Kurds by the Iranian government and the desire to get freedom for the eastern part of Kurdistan (paragraph 13), and discussions about human rights, women's rights and Kurdish rights (paragraph 16). The appellant explained that this was very new to him and he wanted to get closer to these issues. The appellant was never asked why he joined the party given the potential risk to himself and his family in either his asylum interview or, it appears, at the appeal hearing. Nor is it apparent from the face of the determination that the judge raised this concern with the appellant. In HA and TD v SSHD [2010] CSIH 28 the Scottish Court of Session indicated, at 8, that, "As an expert body, the Tribunal is entitled to reject evidence notwithstanding that the evidence has not been challenged before it. Fairness may however require it to disclose its concerns about the evidence so as to afford the parties an opportunity to address them." I am satisfied that the Judge acted in a procedurally unfair way by failing to disclose his concerns relating to the risks flowing from the appellant's involvement in a prescribed organisation and thereby depriving the appellant of an opportunity of responding to these concerns. Nor has the judge adequately explained what was unsatisfactory about the explanations provided by the appellant for his involvement in the PJAK.
14. In paragraph 48(3) the judge again finds that the appellant's description of his participation with the PJAK to be vague and lacking in detail.
"For example, he describes buying food, but does not explain what food this is or the amounts he buys it in."
15. The appellant was never asked any questions about the food that he purchased or the amounts purchased either in his asylum interview or during the appeal hearing. Nor is it apparent from the face of the determination that the judge ever made the appellant aware of these concerns. The drawing of an adverse inference in these circumstances constitutes a procedural impropriety as the appellant was not given an opportunity to deal with the concerns and it was not reasonably obvious from the face of the papers that a more detailed explanation was required.
16. In the same subparagraph the judge holds against the appellant his lack of explanation as to how he did not fall under suspicion when purchasing 10 pairs of shoes, and the lack of explanation as to how he was able to transport 10 pairs of shoes and an amount of food away from a shop. The appellant was not however asked to provide these explanations in his asylum interview. Nor does it appear that he was asked for explanations in the appeal hearing. It is not immediately apparent from the appellant's witness statement (paragraph 19) that the shoes were all bought at the same shop, or that the shoes and the food were bought at the same time. If the judge's concerns had been put to the appellant then it is possible that a satisfactory explanation may have been provided. The failure to give the appellant an opportunity of responding to the judge's concerns constitutes a procedural impropriety.
17. In paragraph 48(4) the judge finds that no satisfactory explanation was given by the appellant as to how he was able to escape the attention of his family when leaving the house in the middle of the night to deliver leaflets on horseback. This evidence was given orally at the hearing but the judge has not recorded that evidence or the explanation that was provided by the appellant. As was pointed out in the grant of permission, paragraph 48(4) appears to assume that the appellant's family objected to his night-time activities for the PJAK, but there is simply no finding to that effect. Moreover, the grounds content that the appellant was not asked how he managed to escape the attention of his family when delivering leaflets. There is nothing on the face of the determination contradicting this assertion.
18. In paragraph 48(5) the judge finds the appellant has not given a satisfactory explanation as to when and how Soran was arrested, or where he was at the time or how long Soran was detained before the authorities came for him, especially given that Soran lived in the farm next to his. Nor does the appellant satisfactorily explain the coincidence that he was at his uncle's house when the authorities came looking for him, and his account was said to be inconsistent in his explanations as to why he was at his uncle's house and how frequently he went there. It was accepted by Mr Clarke that there was no inconsistency in the appellant's evidence relating to why he was at his uncle's house and the frequency of his visits. If an inconsistency arose during oral evidence the judge failed to identify this in his decision. In his statement, at paragraph 22, the appellant explained that it was not unusual for him walk into town to sell dairy products and he would sometimes do this 3 or 4 times a week. He would sometimes stay at his paternal uncle's home because he did not want to walk back if it was late. On this particular night the appellant stayed at his maternal uncle's home because it was late and he hadn't stayed for a while. I can detect no inconsistency in the evidence given by the appellant. To the extent that the judge has relied on a claimed inconsistency in rejecting the appellant's credibility, he took account of an irrelevant consideration. Furthermore, in paragraph 23 of his statement the appellant claims, based on information provided to him by his mother, that Soren was arrested for 3 or 4 days. The judge does not appear to have considered this evidence.
19. In paragraph 48(7) the judge finds there is no satisfactory explanation, inter alia, as to how the appellant was able to locate the same agent as before when released from detention in Bulgaria. The appellant did however explain in his statement, at paragraph 33, that he had the agent's mobile number. In failing to take account of this evidence the judge failed to take account of a relevant consideration.
20. In paragraph 48(8) the judge finds there to be no satisfactory explanation how the appellant's poor and uneducated family were able, at short notice, to find the money to pay an agent. Mr Clarke accepts however that this question was not put to the appellant during his asylum interview and he did not deal with it in his statement. There is no indication that the appellant was asked this question in cross examination and there is nothing to indicate that the judge raised it as a point of concern. The failure of the judge to put this to the appellant constitutes a procedural impropriety.
21. The cumulative effect of the above legal errors renders the judge's decision unsafe. It cannot be said that the judge would inevitably have reached the same result if the errors were not committed.
Notice of Decision
The First-tier Tribunal decision is vitiated by material errors of law. The case is remitted to the First-tier Tribunal for a fresh (de novo) hearing to be heard by a judge other than Judge of the First-tier Tribunal Chapman.
Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the appellant in this appeal 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.

24 April 2018
Signed Date

Upper Tribunal Judge Blum