Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/12181/2018

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 17th April 2019
On 01st July 2019

Before

DEPUTY UPPER TRIBUNAL JUDGE MANDALIA

Between

SHA
(anonymity direction made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr. C Holmes, Counsel instructed by Greater Manchester Immigration Aid Unit
For the Respondent: Mr. A McVeety, Home Office Presenting Officer

DECISION AND REASONS
1. An anonymity direction was made by the First-tier Tribunal ("FtT"). As this is a protection claim, it is appropriate that a direction is made. Unless and until a Tribunal or Court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him. This direction applies amongst others to all parties. Failure to comply with this direction could lead to contempt of court proceedings.
2. This is an appeal against the decision of First-tier Tribunal ("FtT") Judge Garratt promulgated on 31st December 2018.
3. The appellant is a national of Iraq, of Kurdish ethnicity, and from Sulaymaniyah in the IKR region. The appellant has given differing accounts as to when he left Iraq, and his journey to the UK. In any event, he claims to have arrived in the UK on 7th December 2015, and made a claim for asylum on that date. His claim was refused for the reasons set out in the respondent's decision of 9th October 2018. That was the underlying decision that was the subject of the appeal before the FtT.
4. The background to the claim for international protection is summarised at paragraphs [3] and [4] of the decision of the FtT. There are two strands to the claim. First, his claim to fear for his life at the hands of members of the Mirawdali tribe who had blamed him for failing to assist in the rescue of two men from the appellant's village during an incident that occurred on 25 October 2015. Second, his claim to have converted to Christianity from Islam whilst in the UK.
5. At paragraphs [13] to [29] of the decision, the FtT Judge sets out the evidence received by the Tribunal from the appellant. At paragraphs [30] to [32] of his decision, the Judge sets out the evidence given by the appellant's wife and at paragraphs [33] to [41], the Judge sets out the evidence received by the Tribunal from a number of witnesses including the appellant's son. The Judge's findings and conclusions are set out at paragraphs [57] to [77] of the decision.
6. The FtT Judge did not find the appellant's account of the events that he claims occurred on 25 October 2015, to be credible. At paragraphs [59] and [60], the FtT Judge gives his reasons for rejecting the appellant's account that he would be blamed for the death of the two individuals for failing to assist in their rescue. The Judge had also noted the claim that the appellant's wife was attacked on 25th of October 2015 and lost consciousness. The appellant's wife's account of that incident is referred to at paragraph [32] of the decision. At paragraph [33] of the decision, the Judge records the evidence given by the appellant's son who "said that he had seen his mother hit in Iraq as a result of which she was "not well and went to hospital". At paragraph [58] of the decision, the Judge states:
"? Whilst the evidence of both refers to an incident on 25 October 2015, when the appellant's wife was attacked and lost consciousness, neither witness has related the incident to the circumstances which the appellant claims resulted in the attack. In particular the evidence of the appellant's young son was clear, brief and to the point in describing the incident in which he saw his mother hit. Whilst I do not attack the quality of his evidence, I have to remark that there is no mention, in his statement of 3 December 2018 of any attack on his mother. The incident referred to by the son and his mother has not been credibly linked to the claimed incident involving the two fishermen. The incident could, I conclude, relate equally, to a business or family dispute."
7. Having considered the evidence, the FtT Judge concluded at paragraph [61] as follows:
"whilst I have therefore concluded that the fishing incident did not occur as claimed I accept that there may have been a dispute affecting the appellant's family which led to the assault upon his wife or she may have had an accident. The incident may have triggered the appellant's departure from the IKR with his family but I cannot conclude that the motive for leaving Iraq was primarily anything more than economic. I reach that conclusion bearing in mind the appellant's admission that US$8,000 was paid to the agent from his business resources to facilitate the journey to the United Kingdom. Indeed, the appellant's evidence suggests that substantially more than that sum was paid. That is, I find inconsistent with the appellant's claim that his business was deliberately destroyed by fire along with his home. It has not been explained how the appellant's business partner was able to raise those funds so quickly from the business or why he was willing to do so when, with the destruction of the business, he would no doubt which (sic) to reconstruct something from the ashes."
8. The FtT Judge considered the appellant's claim to have converted to Christianity at paragraphs [63] to [71] of the decision. I pause to note that at paragraph [42] of his decision, the FtT Judge records the following submission made on behalf of the respondent:
".. He emphasised that the respondent did not accept that the appellant had suffered problems in Iraq and his conversion to Christianity was also questioned. He agreed, however, that, if the appellant was found to be a Christian that might lead to persecution if returned. However, he had not prepared submissions on the point.".
9. At paragraph [66] of the decision, the FtT Judge states that his conclusions about risk on return for the appellant and his family as converts from Islam to Christianity are guided by the principles set out by the Supreme Court in HJ (iran) 2010 UKSC 31. The Judge states "... Having decided that the family are genuine converts to Christianity the decision requires me to ask myself whether I am satisfied, on the evidence available, that Christian converts who live openly would be liable to persecution in the country of nationality.". The Judge found, at [67], that the appellant and his family would wish to follow their faith openly if returned to Iraq, and, especially, their home region of the IKR. The FtT Judge considered the country guidance set out in AAH and having considered other background material, the FtT Judge concluded at paragraph [71], as follows:
"I acknowledge that the information about Christian converts living in the IKR is relatively limited but leads me to conclude that a real risk of serious harm cannot be made out. In reaching this conclusion I should emphasise that any difficulties which might be experienced by the appellant and his family on account of their faith in other parts of Iraq can be avoided by their direct return to either the airport at Sulaymaniyah or Erbil. From there they can return to their nearby home region with assistance, if required, from relatives still living there."
The appeal before me
10. The appellant advances four grounds of appeal. First, the FtT Judge reached his decision as to the risk upon return by relying upon impermissible post hearing research. It is said that the FtT Judge referred to background material that was not relied upon by either party, and upon which neither party had any opportunity to comment. Second, the post hearing research relied upon by the Judge, lead the Judge to erroneously conclude that any difficulties which might be experienced by the appellant and his family on account of their faith in other parts of Iraq, can be avoided by their direct return to either the airport at Sulaymaniyah or Erbil. The respondent's unequivocal position at the hearing, was that the appellant would be returned to Baghdad, and would be expected to travel onwards from there. Third, the FtT Judge failed to properly apply the country guidance set out in AAH and in particular, failed to adequately address the requirements to obtain replacement documentation. Finally, the FtT Judge erred in his assessment of the evidence regarding the events of 25 October 2015.
11. Permission to appeal was granted by FtT Judge Keane on 12th February 2019. The matter comes before me to consider whether the decision of the FtT involved the making of a material error of law, and if so, to remake the decision.
12. Before me, Mr McVeety confirmed that having had the opportunity of considering the decision of the FtT Judge, the respondent accepts that the first three grounds relied upon by the appellant are established, and that in the circumstances, the decision of the FtT cannot stand. He concedes that the decision of the FtT contains a material error of law and should be set aside.
13. The issue for me is whether the discrete findings made by the FtT Judge with regard to the events of 25th October 2018 can be preserved.
14. Mr Holmes submits that the FtT Judge erred in concluding, at [60], that the evidence of the appellant in relation to the positioning of the two deceased, was muddled. He submits that the inconsistency that is apparent at question 54 of the interview arises from an error made by the interviewing officer, who recorded the names in the wrong order. He submits that by a letter dated 18th September 2018, within a week of the interview, the appellant's solicitors had confirmed that "..The interviewer has mixed the names around "While Yassin jumped into the water to rescue Salam?" this should read "While Salam jumped into the water to rescue Yassin?". Mr Holmes submits that the Judge also erroneously assumed that the appellant relies upon his claim to be illiterate to explain the discrepancy, and irrationally concludes that the appellant's claim to be illiterate is inconsistent with his claim to have run a successful business. He submits that the appellant simply stored goods and did not need to be literate to run his business. Finally, he submits that the Judge erred, at [58], in his conclusion that the incident involving the appellant's son and wife has not been credibly linked to the claimed incident involving the two fishermen, and that the incident could, relate equally to a business or family dispute. Mr Holmes submits that the conclusion is based upon nothing more than speculation.
15. I have carefully read the decision of the FtT Judge and his findings regarding the events of 25th October 2015. The Judge rejected the appellant's account of events and in my judgement it was open to him to do so. Although the Judge refers to an apparent inconsistency from what the appellant said at question 54 of the interview, and did not refer to the letter from the appellant's solicitors clarifying the answer given by the appellant, the Judge states, at [60], that "..I have not reached my conclusion that the appellant's main claims are incredible on that account alone..". In reaching his decision, it is clear that the FtT Judge had regard to the evidence as a whole and in particular, the evidence given by the appellant's wife and son. The Judge noted the evidence given by the appellant's son in particular, at paragraph [58] of the decision. The appellant's son did not refer to his mother having been attacked in his witness statement of 3rd December 2018. In his evidence before the Tribunal that is recorded at paragraph [33] of the decision, the evidence of the appellant's son was that "..he had seen his mother hit in Iraq as a result of which she was "not well and went to hospital..".
16. Having concluded that the 'fishing incident' did not occur as claimed, the FtT Judge had to consider whether the appellant's wife had been attacked. The evidence of the appellant with regard to the attack on his wife was very brief. At paragraph [16] of his witness statement the appellant simply claims that he was told by Mr Latif that "My wife had also been attacked. My father-in-law had taken my wife back to their home.". Surprisingly perhaps, the appellant provides no further information about the attack, or what he was told about his wife's injuries. He does not even go so far as to say that she required hospital treatment. The appellant's wife, in her statement refers to an incident at about 6-7pm, on 25th October 2015, when around 8 people came to their house and raided it. She claims to have fainted after she was hit on the back of her neck and states that she "..wasn't sure what happened after that.". She claims that "..Before the men hit me they were swearing and using very abusive words.", and that when she regained consciousness "..they were not around me anymore and my father and brother had taken me to my father's house". The Judge noted, at [58], that whilst the evidence of both the appellants wife and son refers to an incident on 25 October 2015, neither witness has related the incidents to the circumstances which the appellant claims resulted in the attack. It was in my judgement open to the FtT Judge to find, having considered the evidence as a whole, that there may have been a dispute affecting the appellant's family which led to the assault upon his wife, or she may have had an accident.
17. Whilst the findings were perhaps not as well-expressed as they might be, that is not to say that the FtT Judge failed to consider the evidence or reached a conclusion that that was not open to him. The obligation on a Tribunal is to give reasons in sufficient detail to show the principles on which the Tribunal has acted and the reasons that have led to the decision. Such reasons need not be elaborate, and do not need to address every argument or every factor which weighed in the decision.
18. In my judgement, the findings reached by the Judge were neither irrational nor unreasonable in the Wednesbury sense, or findings that were wholly unsupported by the evidence. The assessment of such matters is always a highly fact sensitive task. The FtT Judge was required to consider the evidence as a whole. In assessing the credibility of the claim advanced by the appellant, the Judge was required to consider a number of factors. They include, whether the account given by the appellant was of sufficient detail, whether the account is internally consistent and consistent with any relevant specific and general country information, and whether the account is plausible. On a proper reading of paragraphs [57] to [62] of the decision, he clearly did so. On appeal, the Upper Tribunal should not overturn a judgment at first instance, unless it really cannot understand the original judge's thought process when he or she was making material findings.
19. In the circumstances, it is appropriate to remit this appeal back to the First-tier Tribunal, because of the error of law regarding the second strand of the appellant's claim. However, in my judgement, the findings set out at paragraphs [57] to [62] of the decision of FtT Judge Garratt are not tainted by any error of law, and those findings are preserved.
20. The parties will be advised of the date of the First-tier Tribunal hearing in due course.
Notice of Decision
21. The appeal is allowed and the appeal is remitted to the FtT for a fresh hearing of the appeal.
22. The findings of FtT Judge Garratt set out at paragraphs [57] to [62] of the decision of FtT Judge Garratt, are preserved.
23. I make an anonymity direction.

Signed Date 24th May 2019

Deputy Upper Tribunal Judge Mandalia

TO THE RESPONDENT
FEE AWARD
I have allowed the appeal and remitted the matter to the FtT for hearing afresh. In any event, no fee is payable and there can be no fee award.

Signed 24th May 2019

Deputy Upper Tribunal Judge Mandalia