Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/09297/2016

THE IMMIGRATION ACTS

Heard at Field House, London
Determination Promulgated
On 16 January 2017
On 18 January 2017

Before

UPPER TRIBUNAL JUDGE PLIMMER

Between

DS
ANONYMITY DIRECTION MADE
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the appellant: Ms V Easty (Counsel)
For the respondent: Mr P Singh (Senior Home Office Presenting Officer)

DECISION AND DIRECTIONS

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI2008/269) an Anonymity Order is made. Unless the Upper Tribunal or Court orders otherwise, no report of any proceedings or any form of publication thereof shall directly or indirectly identify the original Appellant. This prohibition applies to, amongst others, all parties.

1. I have anonymised the appellant's name because this decision refers to his asylum claim and he is to be regarded as a vulnerable witness.

Summary of asylum claim

2. The appellant is a citizen of Iraq, from Bartela, near Mosul. He was born in June 1998. He left Iraq in 2014 (when he was around 16) and arrived in the United Kingdom ('UK') in October 2015. He claimed asylum on 26 January 2016. The SSHD refused the claim for asylum in a decision dated 19 August 2016.

3. The appellant contends that he has a well-founded fear of persecution in Iraq because of the actions of ISIS in his home area and that he cannot relocate because of his particular personal profile. He claims that he fled Iraq with his father after hearing that ISIS had killed his brother and kidnapped his mother and sister.

Procedural history

4. In a decision dated 4 November 2016 First-tier Tribunal Judge Abebrese dismissed the appellant's appeal. The judge comprehensively rejected the credibility of the appellant's asylum claim and found that he could internally relocate to Baghdad.

5. In a decision dated 1 December 2016 First-tier Tribunal Judge Saffer granted permission to appeal observing that the First-tier Tribunal failed to refer to significant evidence (including psychological evidence and a report from a country expert) capable of impacting upon the credibility assessment.

6. The SSHD has submitted a rule 24 notice dated 3 January 2017 in which it conceded the "application for permission to appeal". At the beginning of the hearing Mr Singh accepted that the appeal was unopposed and the decision needs to be remade in its entirety. He was entirely correct to do so for the reasons set out below.

7. Both representatives agreed that the errors of law that I identified are such that the decision needs to be remade completely. There is considerable apparently cogent evidence that the appellant is a vulnerable witness who continues to suffer adversely from the uncertainty surrounding his immigration position together with his claimed history (separated from his father en route to the UK, death of brother, uncertain plight of mother and sister, kidnapped as a child). Unfortunately, there was no interpreter available and in the circumstances both representatives agreed that given the nature and extent of the credibility findings required, this should be done in the First-tier Tribunal.

8. I have had regard to para 7.2 of the relevant Senior President's Practice Statement and the nature and extent of the factual findings required in remaking the decision, and I have decided that this is an appropriate case to remit to the First-tier Tribunal.

9. Both representatives also agreed that this is an appropriate case for expedition given the difficulties the appellant is facing. These have been helpfully summarised by a social worker in a letter dated 9 January 2017. I entirely agree. In so far as it is possible to do so it would be helpful to both parties for the First-tier Tribunal to expedite the listing of this matter.

Error of law discussion

10. I can state my reasons briefly given the respondent's concession. In finding the appellant not to be credible regarding the alleged ISIS kidnapping of his mother and sister, and the killing of his brother [42-45] and his father's enemies [47-48], the First-tier Tribunal failed to take material evidence into account:

(i) In an amended statement dated 3 August 2016 the appellant raised the apparent inconsistency regarding the fate of his mother and sister. He explained that the interpreter misunderstood him. He emphasised that his mother and sister were kidnapped, not that they are dead (or that he knew them to be dead). That explanation is relevant to a careful analysis of the appellant's responses as recorded in the respondent's record of the asylum interview in this regard. The response to question 68 required further clarification in light of the response to question 67 when read in the context of the appellant's explanation in his statement.
(ii) As a result of the apparent lack of clarity in the above responses the appellant's solicitors arranged for a further transcript of questions 8 and 68. This transcript supports the appellant's explanation, yet the First-tier Tribunal has not referred to this transcript at all.
(iii) No reference whatsoever is made to the country expert report of Dr George. Although the First-tier Tribunal was aware of the activities of ISIS in Mosul in 2014 [46] it failed to engage with the general analysis of the apparent plausibility of the appellant's specific account.
(iv) No consideration was given to the psychological report of Dr Lissa Morrish when considering the credibility of the appellant's claim. There was a clear obligation on the First-tier Tribunal to carefully consider this, given its acceptance that the appellant should be treated as a vulnerable witness and the detailed evidence within the report relevant to a credibility assessment.
(v) No reference is made whatsoever to supporting evidence from social services to the effect that he remained consistent in his account of what happened to him.

11. In my judgment the First-tier Tribunal has erred in law in its approach to the evidence set out above. The errors I have focussed upon are sufficiently wide-ranging and fundamental to lead me to the view that the conclusion on credibility is vitiated by errors of law and unsafe. The decision must be remade entirely and de novo.

12. The First-tier Tribunal has also erred in law in failing to consider all the relevant factors set out in AA (Art 15c) Iraq CG [2015] UKUT 544 when determining internal relocation. I entirely agree with the submissions at paras 9 and 10 of the grounds of appeal.
Decision
13. The decision of the First-tier Tribunal involved the making of a material error of law. Its decision cannot stand and is set aside.
14. The appeal shall be remade by the First-tier Tribunal de novo.
Directions
(1) The appeal shall be reheard de novo by the First-tier Tribunal sitting in Taylor House (TE: 2.5hrs) on the first date available but expedition of the listing of this matter is justified for the reasons provided above. Kurdish Sorani interpreter necessary.

Signed:

Ms M. Plimmer
Judge of the Upper Tribunal

Date:
16 January 2017