Tribunal decisions

The decision

IAC-AH-VP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/11318/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 8 February 2017
On 16 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE RAMSHAW

Between

mr AS
(ANONYMITY DIRECTION made)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:
For the Appellant: Ms Gherman of Counsel
For the Respondent: Mr P Armstrong, a Home Office Presenting Officer

DECISION AND REASONS

1. Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original Appellant. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.
2. The appellant is a citizen of Iran. The appellant claims that he left Iran on 13 February 2016 travelling through Turkey and unknown countries before he arrived in the United Kingdom by lorry on 6 March 2016. He made an appointment to claim asylum on 10 March 2016 and completed his claim on 5 April 2016. His claim was based on his involvement with the Party of Free Life for Kurdistan ('PJAK') in Iran.
3. The respondent refused the appellant's claim for asylum on 29 September 2016 and also decided to remove the appellant from the United Kingdom. The respondent considered that the appellant's account was not credible and did not accept that the appellant had been involved with the PJAK. Therefore, the respondent did not consider that the appellant was in need of protection or that his removal would breach his rights under articles 2 and 3 of the ECHR. The respondent considered the appellant's rights under article 8 finding that the appellant did not meet the requirements of the Immigration Rules HC395 (as amended) and that there were no exceptional circumstances to warrant granted of leave to remain outside the Immigration Rules.
4. The appellant appealed against that decision to the First-tier Tribunal.
The Appeal to the First-tier Tribunal
5. The appellant's appeal to the First-tier Tribunal was heard on 16 November 2016. In a decision promulgated on 5 December 2016 First-tier Tribunal Judge Wyman dismissed the appellant's appeal.
6. The First-tier Tribunal found that the appellant was a low level supporter of PJAK and that he had assisted his employer in tasks such as loading and unloading lorries with boxes containing food and medical equipment destined for PJAK.
7. The First-tier Tribunal found, however, that the appellant's story was not credible and that he had not provided any documentary evidence or evidence from friends or family to corroborate his story. The tribunal also found that the appellant could, if he wished, move within Iran and that there was a sufficiency of protection for the appellant.
8. The tribunal found that the appellant did not have any close friendships in the United Kingdom and that his application for leave to remain under Article 8 outside the Immigration Rules failed, finding that any interference in his Article 8 rights was proportionate to the legitimate public end sought.
The appeal to the Upper Tribunal
9. The appellant applied for permission to appeal to the Upper Tribunal. On 11 January 2017 Designated First-tier Tribunal Judge Macdonald granted the appellant permission to appeal. Thus, the appeal came before me.
The Hearing before the Upper Tribunal
Summary of submissions
10. The grounds of appeal set out three separate grounds. Ground one asserts that the judge has misdirected herself as to the risk of persecution that the appellant will face given the findings. The judge correctly reiterates that the Iranian authorities have no tolerance of any activities connected to the Kurdish political groups, and those involved are targeted for arbitrary arrest, prolonged detention and physical abuse.
11. The judge found that the appellant is a supporter of PJAK and assisted in the transportation of goods to the PJAK in the manner that the appellant recounted. It is argued that given that it is accepted that he is an active supporter of what is considered to be an illegal political party, and that the Iranian authorities have no tolerance of the same, it cannot be correct that the appellant does not face a real risk of persecution on return.
12. Ground two argues that the judge has placed too much weight on the lack of an arrest warrant and other documentary evidence. It is submitted that the judge concludes that the lack of an arrest warrant significantly adversely affected the appellant's credibility. The appellant states that his mother has had difficulty locating the document. The judge also found the lack of documentary evidence from A, a friend of the appellant, and from his uncle, who arranged the agent, significant. The judge also found the lack of supporting evidence of Mr H, his employer and Mr S relevant. It is asserted that it would be unlikely that there would be official news reports of an illegal raid and arrest of anti political government members and supporters. It was therefore submitted that the judge placed too greater weight on these matters and failed to consider any explanation as to why such documents might be lacking.
13. Ground three asserts that the judge did not consider the appellant's account in the round appropriately. The judge made numerous findings in relation to the appellant accepting that he did assist the PJAK in the manner in which he described. However, the judge went on to find that the appellant is not credible because he has provided no documentary evidence. The judge does not state that the appellant's account was contradictory and lacking in detail or explanation. It is noteworthy that the judge accepted large parts of the account. The only inconsistency found by the judge is that the appellant did not previously state that he had Mr S's telephone number in his mobile phone. It is submitted that this is not fatal to the crux of the appellant's case or his evidence and that the appellant had provided an explanation.
14. Ms Gherman submitted that as recognised by the judge the Iranian authorities have no tolerance of Kurdish political groups. The judge had misdirected herself as to whether there was a real risk of persecution of the appellant based on his involvement with the PJAK.
15. In relation to ground two she submitted that the judge did not take into account any explanation with regard to the lack of documentary evidence. She submitted that the test in TK Burundi v SSHD [2009] EWCA Civ 40 has not been carried out by the judge. The judge has not attempted to test why the evidence was not available. Nothing was put to the appellant in oral evidence regarding the obtaining of any corroborating evidence other than the arrest warrant. She submitted that the judge has accepted large parts of the claim and there was only one inconsistency regarding the telephone number in the phone.
16. Mr Armstrong submitted that there was an exaggeration of what the judge had accepted. He referred to paragraph 72 - there was no indication that the judge accepted that the appellant was involved in the transportation of goods. He submitted that the judge had accepted that the appellant was a low level supporter of the PJAK and that he was simply doing his job for his employer who was not a member of the PJAK but who was also a low level supporter. The judge merely accepted that parcels were delivered to the garage in which the appellant worked and were loaded and unloaded onto lorries. The judge did not accept the appellant's account of the illegal raid on the garage and the arrest of the appellant's employer. There would be no reason that the authorities would have any intelligence or information about the appellant and his low level support for the PJAK.
17. In relation to ground 2 he submitted that the appellant had had ample time to obtain the evidence about the arrest warrant. There was no indication, even as at today, that the appellant has received the arrest warrant. It was open to the judge to find that the lack of this documentary evidence undermined the appellant's credibility. The judge give cogent reasons for his findings. The fact that the appellant failed to provide corroborative evidence with regard to his employer and his friend and his mother is a matter that the judge is entitled to take into account. With regard to the mobile phone it was not only the inconsistency with the telephone number but also the plausibility that he would leave his phone behind. The appellant had very little knowledge of the PJAK as demonstrated in his interview, he was not a member of the PJAK. There is nothing to link him to the PJAK as the judge had not accepted his story with regard to the raid on the garage so there is nothing to suggest that the authorities would be interested in the appellant. The appellant has never attended any meetings or held any role in the PJAK. He referred to paragraph 76 of the decision and submitted that the judge found that the appellant's explanation regarding the arrest warrant was not credible. He submitted that the judge correctly set out at paragraph 77 by reference to TK Burundi that a failure to produce evidence that is or should be readily available may be of considerable weight in relation to the credibility of the appellant, the judge did not accept the appellant's explanation for that.
18. He submitted that at paragraphs 78 to 82 the judge notes that evidence that should have been readily available was missing. Therefore the judge was perfectly entitled to point to that gap in the evidence. He submitted that at paragraph 90 although badly phrased the judge clearly found that the appellant is not at risk from the authorities despite his alleged support for the PJAK and that is because the judge had not found the appellant's story with regard to the raid on the garage as credible.
19. Ms Gherman in reply submitted that the judge has not made any criticism of the lack of support from the appellant's employer and that as they were arrested and taken away it would be unlikely that any support could be obtained. She submitted that lack of knowledge of the PJAK was no longer relevant in light of the judge's finding that the appellant was a low level supporter.
Discussion
20. I will deal with ground 2 first. The judge considered the appellant's claim that officials from Etteelat went to his home and left an arrest warrant with his mother. The judge records:
74. I find, of particular significance, the fact that the appellant had not provided any arrest warrant in his name. Whilst the appellant may not have had solicitors instructed from the outset, he appointed Virgo Solicitors on 24 August 2016 as a letter of authorisation was sent to the Home Office on that date. He would therefore have been informed at least three months ago that he would need to obtain the original arrest warrant from Iran, as this would have substantiated his story.
75. At the hearing before me, Mr [AS] told the Tribunal that his mother either has lost the original arrest warrant or may have hidden it.
76. I did not find this explanation to be credible. Given that the arrest warrant was issued from the Etteelat then why would the appellant's mother hide this document, as they clearly would have known of its existence. Whilst I can understand the appellant's (or Mr [H] wishing to hide evidence that he was supporting PJAK in the form of locking the garage) it makes no sense whatsoever for the appellant's mother to have hidden a document that had been issued by the authorities themselves. Furthermore, why would the appellant's mother take such action. There is no letter or affidavit from his mother explaining what steps she had taken regarding the arrest warrant and why she had taken such steps.
77. In the case of TK Burundi v SSHD [2009] EWCA Civ 40, it was held that where evidence to support an account given by a body is or should readily be available, the judge is entitled to take into account the failure to provide that evidence and any explanation for that failure. This may be a fact of considerable weight in relation to credibility where there are doubts about the credibility of the party.
78. I find the lack of any arrest warrant/summons provided by the appellant significantly adversely affects the appellant's credibility before this Tribunal.
21. The judge has considered the explanation given by the appellant. This finding by the judge was one that was open to her.
22. In respect of ground one the judge set out a summary of the objective evidence as follows:
61. The situation is different for those who become or are perceived to be involved in Kurdish political activity. The authorities have no tolerance of any activities connected to Kurdish political groups, and those involved are targeted for arbitrary arrest, prolonged detention and physical abuse.
62. People with a high political profile as well as human rights activists are targeted by the authorities because of their political opinion. Family members of people associated with the Kurdish political group can also be harassed and detained. The party of Free Life of Kurdistan is known PJAK. PJAK calls for a peaceful and democratic solution to the Kurdish question, although Iran regards them as a terrorist organisation. In 2011 PJAK and Iran signed a ceasefire, but skirmishes between Iranian Special Forces and PJAK's military wing still occur.
23. It is clear that the judge considered that the objective evidence demonstrated that the Iranian authorities have no tolerance of any activities connected to Kurdish political groups and that those involved are targeted. The judge's specific findings with regard to the appellant were as follows:
70. The appellant has claimed that he is wanted by the authorities because he assisted PJAK. I note that the appellant was asked a number of questions about PJAK in his substantive asylum interview, and he was able to provide some information about the party. I note his information was limited and he certainly could not provide detailed information in this regard. However, I am prepared to accept that the appellant was a low level supporter of PJAK.
71. To his credit, the appellant had never claimed that he was a member of the party or that he had any official role within the party at a local or regional level.
72. I am prepared to accept that the appellant assisted his employer, Mr [H] in tasks such as loading and unloading the lorry with boxes that contained food and medical equipment. He also locked the door of the garage.
24. The assessment of risk on return, therefore, ought to have been approached by the judge on the basis that he accepted the appellant's role in the transportation of goods albeit as an assistant to his employer, Mr [H], and that the appellant was a low level supporter of the PJAK.
25. Essentially the appellant's submission was that once a finding had been made by the judge that the appellant was a low level supporter of PJAK and had assisted his employer in the manner in which he did then that was sufficient for the appellant to be at risk of persecution on return to Iran. No specific authority was cited in support of that proposition. The appellant relied on the fact that the Iranian authorities have no tolerance of any activity connected to Kurdish political groups. However, if the judge did not accept the appellant's claim with regard to the raid on his employer's garage and of any arrest warrant being issued then there would be nothing to suggest that the Iranian authorities would perceive the appellant to have any involvement in PJAK given that he accepted himself that he was not a member and had not attended any meetings.
26. However, it is not clear to me that the judge has considered the risk on return to Iran on the basis of her finding that the appellant is a low level supporter and had assisted his employer in the manner set out. The judge rightly considered the case of SSHD and HR [2016] UKUT 308. This case concerned risk to returnees on the basis of their Kurdish ethnicity. As the judge set out in HR the Upper Tribunal found that there is not a risk to such returnees unless that person is otherwise of interest to the Iranian authorities. After considering this point the judge went on to set out:
87. The appellant has claimed that he is of interest to the Iranian authorities as he has helped PJAK. However, I do not find the appellant's story credible, and he has not provided any documentary evidence, either from friends and family or in the form of an arrest warrant to corroborate his story.
88. I therefore find that although the appellant made an illegal exit from Iran, this combined with the fact that he is a Kurd will not mean that he would face inhumane or degrading treatment on return to Iran.
27. It might be that the judge rejected in its entirety the appellant's claim with regard to the raid on the garage when the judge says 'I do not find the appellant's story credible'. However, that would a degree of speculation and would require an inference to be drawn.
28. It is not clear from the above two paragraphs that the judge has considered risk on return on the basis that the appellant would be returning as a person of Kurdish ethnicity who, as found by the judge, was a low level supporter of the PJAK and had assisted via his employer with the unloading and loading of lorries with goods for the use of the PJAK. The judge, when considering risk on return, seems to be considering only the factors set out in paragraph 88 namely, that the appellant made an illegal exit from Iran and that he was a Kurd. It may have been that the judge did not consider that low level support of the PJAK was sufficient to present the appellant with a risk on return. However, we simply do not know if this was the case. I consider that the judge failed to take into consideration her own finding with regard to the appellant's involvement with the PJAK when considering the risk on return to Iran. A different conclusion might have been reached if the judge had taken this into consideration when assessing risk on return.
29. I also consider that the judge's approach to sufficiency of protection demonstrates a lack of understanding of the appellant's claim. The appellant's claim was to fear persecution from the authorities and yet, at paragraph 90, the judge set:
90. I now turn to consider whether there is sufficiency of protection for the appellant. As stated above, I have not found that the appellant is at risk from the authorities due to his alleged support for PJAK. Therefore, I see no reason as to why the authorities would be unwilling to offer him protection, if necessary. Horvath [2000] UKHL 37).
30. Clearly this is a misapplication of the principles set out in Horvath. The appellant did not claim to fear persecution from non-state actors. His only claim was to fear persecution from the authorities. It is not clear why the judge considered that the authorities could or would offer protection when it is the authorities that the appellant claimed to fear. The judge also considered internal relocation setting that having found the appellant was not at risk from the authorities he could if he so wished move within Iran. The judge said "This is called internal relocation". It is not clear why the judge considered that internal relocation was relevant in this case.
31. There was no appeal against the First-tier Tribunal's decision on article 8.
32. For the above reasons I find that the decision of the First-tier Tribunal involved the making of a material error of law with regard to the asylum claim. No appeal was made against the tribunal's decision on Article 8. Therefore, the decision on article 8 stands. I set aside that decision pursuant to section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 ('TCEA').

33. I considered the Practice Statement concerning transfer of proceedings. I am satisfied that the nature and extent of judicial fact finding that is necessary in order for the decision in the appeal to be re-made is such, having regard to the overriding objective, that it is appropriate to remit the matter to the First-tier Tribunal.

34. As it is not clear to me precisely what aspects of the appellant's account the judge did not find to be credible I consider that this case should be heard de novo without any findings preserved. I remit the case pursuant to section 12(2)(b) and 12(3)(a) of the TCEA to the First-tier Tribunal at Hatton Cross for a de novo hearing on the asylum claim before any judge other than Judge Wyman to be heard on the next available date.

Notice of Decision

The appeal is allowed. The case is remitted to the First-tier Tribunal for a de novo hearing before any judge other than Judge Wyman on the next available date.

Signed P M Ramshaw Date 15 February 2017

Deputy Upper Tribunal Judge Ramshaw