Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/09362/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision Promulgated
On 3 February 2017
On 6 February 2017

Before

Upper Tribunal Judge Southern

Between

M. Q.
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms J. Elliott-Kelly, counsel
For the Respondent: Ms. A. Fijiwala, Senior Home Office Presenting Officer

DECISION

1. Having heard submissions made by Ms Elliott-Kelly on behalf of the appellant, Ms Fijiwala confirmed that the respondent would not resist the appeal to the Upper Tribunal against the decision of First-tier Tribunal Judge Phillips. That concession was properly and realistically made because, in her submissions, Ms Elliott-Kelly has clearly identified a number of material errors of law made by the judge, the effect of which is that nothing at all can be salvaged from her determination.

2. In the face of such consensus that the appeal will have to be determined afresh by a different judge of the First-tier Tribunal it is necessary for me only briefly to identify the nature of some of the errors of law made by the judge.

3. First, it was not reasonably open to the judge to refuse to grant the adjournment sought by the appellant. That was because the need for expert evidence was plainly established and the interests of justice demanded that a reasonable opportunity be provided to obtain it. This appeal had been listed unusually quickly following the decision under challenge, there had been no undue delay by the appellant's solicitors in seeking and obtaining instructions from the appellant and they had taken all appropriate steps to secure funding to commission expert evidence in support of the appellant's case. Given that he was an unaccompanied minor with no documentary evidence to call upon, the nature of the expert evidence sought was clearly of central importance to his claim. Further, it was a material error of law for the judge, having refused to grant an adjournment to obtain expert evidence, to then find lacking in credibility the appellant's account of life in Iran concerning matters which were precisely those in respect of which an expert would have been asked to provide evidence.

4. It had been made clear to the judge that expert evidence was being sought in respect of two distinct issues. One concerned the appellant's disputed Iranian nationality and the other the appellant's account, disputed by the respondent, of his experiences of various events and occurrences in Iran. She gave reasons for refusing that application in respect of the nationality issue, which as I have explained were legally insufficient, but gave no reasons at all for refusing the adjournment in respect of the expert evidence sought on the other issue.

5. This is sufficient in itself to establish that the decision of the judge cannot stand. It is, though, unambiguously clear that the reasoning of the judge leading to adverse credibility findings is not legally sufficient and is simply not sustainable. When considering the nationality issue the judge concluded that the appellant "was being untruthful" when answering questions concerning Iranian currency and it is clear that she took this finding of his untruthfulness to inform her conclusion that the appellant was not a credible witness and so to reject his factual account. But it is impossible to understand, and the judge does not seek to explain, why an appellant seeking to persuade a doubtful interviewer that he is of Iranian nationality should untruthfully give inaccurate answers about a question concerning Iranian currency which, if answered correctly, would support his claim to be Iranian. It is simply not rational to conclude from this that the appellant was an untruthful witness.

6. There are a number of other examples of the reasoning of the judge which, with respect, it is simply not possible to follow. For example, at paragraph 60 the judge examines the appellant's evidence about the smuggling activities of his family in Iran. Despite having read this part of the judgment repeatedly, I have to say that I simply do not understand the point being made or why this is thought to damage the appellant's credibility.

7. It is clear also that the judge failed to engage adequately with the case that the appellant sought to advance. This was set out clearly to the judge in counsel's skeleton argument, but there is no discussion of that in the judgment. The issues not adequately addressed, or addressed at all, included the fact that the appellant was an unaccompanied minor who had not had any education. The judge said that she had given the appellant the benefit of the doubt but in refusing to allow him an adjournment and then, having adopted the credibility points taken by the respondent but not taking any real note of the points made in favour of the appellant by counsel in her skeleton argument, it is very hard to see how that can be said to have been done.

8. As both parties recognise from the discussion before the Upper Tribunal on 2 February, more can be said about the decision of Judge Phillips that gives rise for concern but it is not necessary to do so.

9. As I have made clear that there will have to be a de novo hearing and that nothing can be preserved from the judgment of Judge Phillips, the parties should ensure that their respective positions concerning the appellant's nationality are known to each other now, so that if, despite Judge Phillips' acceptance of the appellant's asserted Iranian nationality, the respondent seeks to maintain her refusal to recognise it, the appellant is ready to adduce whatever evidence is sought to be relied upon in that regard.

Summary of decision:

10. The Judge of the First-tier Tribunal made a material error of law error of law and her decision to dismiss the appeal is set aside.

11. The appeal to the Upper Tribunal is allowed to the extent that the appeal is remitted to the First-tier Tribunal to be determined afresh.

Signed

Upper Tribunal Judge Southern

Date: 3 February 2017