Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/12236/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 4 April 2017
On 18 April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

Between

Aa
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr F Farhat, Gulbenkian Andonian Solicitors
For the Respondent: Mr C Avery, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction
1. The appellant is a citizen of Iran born on 12 September 1982. The appellant entered the United Kingdom in November 2008 with leave to enter as a student and was subsequently granted leave to remain until 29 November 2013. In November 2012 he claimed asylum. The respondent refused that application on 21 October 2016. In a decision promulgated on 12 January 2017 Judge of the First-tier Tribunal J McMahon dismissed the appellant’s appeal on all grounds.
Background
2. The appellant had maintained that whilst he was living in Iran he qualified as a musician and worked as a reporter and editor of a newspaper and that he was also a presenter on Iranian national TV and an advisor to the Islamic Parliament. He stated that his father had held a very senior position in the Iranian Government. The appellant asserted that he had returned to Iran in 2011 because his grandfather was seriously ill and that he, the appellant, needed medical treatment and that whilst he was in Iran he was arrested on the basis of a warrant, his laptop and other items were seized and he was detained and interrogated for three days and accused of organising or participating in a musical concert in the UK with an anti-revolutionary ideology and also accused of maintaining friendships with anti-revolutionary people. The appellant also maintained that he was required to sign an undertaking as to future conduct and his father gave a surety that he would attend court. The appellant stated that he was then taken to Evin Prison. The appellant said he received a court summons for declining to attend court on 16 November 2011 and he was then detained pending a full hearing and taken and interrogated at Evin Prison and held until January 2012 when he gave an undertaking that he would not continue such activities and that his father provided a very substantial financial surety. He asserted that he was allowed to return to his studies in the UK because of his father and his father arranged for him to have a passport and to leave Iran. It was the appellant’s account that following his return to the UK his father began to face problems in Iran including receiving a warning letter in July 2014 and receiving a summons in June 2016.
Error of Law Hearing
3. The appellant appealed with permission on the grounds that the First-tier Tribunal:
(1) failed to consider the evidence presented;
(2) failed to properly consider the evidence in relation to the appellant’s ability to travel to the UK;
(3) failed to attach proper weight to the evidence in relation to the appellant’s appearance on TV;
(4) failed to consider material evidence in relation to the appellant’s activities and involvement in Cinema Cottage;
(5) failed to attach proper weight to the evidence in relation to the appellant’s performance at music concert;
(6) failed to attach proper weight to the appellant’s evidence in relation to music production;
(7) failed to attach adequate weight to the appellant’s evidence in relation to articles on Persian Weekly;
(8) failed to correctly consider the background country information;
(9) made a flawed assessment in relation to the risk on return.
4. Mr Farhat made detailed submissions. In summary the main ground relied on was in relation to the judge’s treatment of the documentary evidence. In support of the appellant’s case evidence had been produced to the First-tier Tribunal including:
(a) the appellant’s father’s emails dated 10 August 2012, 3 September 2012 and 28 October 2012;
(b) a confidential letter issued to his father dated 30 July 2014;
(c) a summons issued to his father dated 22 June 2016;
(d) a summons issued to his father dated 15 July 2016;
(e) a statement from the appellant’s father.
5. The judge considered the evidence in some considerable detail. This included the evidence in relation to the appellant’s father “MA”. It was the finding of the First-tier Tribunal that the statement by the appellant’s father, the translation of which was undated, gave no information as to the dates of contact by the security services or what they were saying about the appellant’s perceived activities in the UK. The judge went on to find at [46] that:
“There is no mention whatsoever of such actions and no documentary confirmation (in the sense of relevant court papers) has, so far as I can see, been produced”.
The judge went on at [47] to fine that the last dated document issued by the appellant’s father was in October 2012 with no more recent dated information as to security service activity (this being a reference to the emails from the appellant’s father). At [48] the judge referred to the appellant, at paragraph 12 of his most recent witness statement, stating that his father received a confidential judicial letter dated 30 July 2014 and again the judge indicated that “so far as I can see a copy of that letter has not been produced” and noted that this detail was not in the handwritten account from the appellant’s father.
6. At [58] the judge again noted that the appellant had not provided documentary support that would reasonably have been available to him. At [61] the judge found that:
“There was very little confirmation of the actions which are said to have been taken against the appellant’s father. In my view, it is a reasonable expectation, if either of the previous two points have any real substance, that the appellant would have provided more substantial confirmation.”
(In relation to the appellant’s claim of the actions said to have been taken against his father and the claimed media criticism he had made of Iran in the UK since July 2002).
7. At [64] the judge did not accept that the appellant’s account was reliable in relation to the authorities confiscating bail money and property deeds and found that “if such actions had been carried out then more particular, detailed and recent confirmation would have been provided by MA”.
8. It was Mr Farhat’s submission that the judge was in error in relation to the alleged lack of documents and I was referred to the appellant’s bundle, bundle B at pages 43 and 44 as a document and translation of a letter dated 30 July 2014 from the judiciary; at page 46 of the same bundle is a translation of a summons dated 26 June 2016 issued to the appellant’s father, confiscating his deeds because of the appellant’s failure to return; at [48] is a letter dated 15 July 2016 from the judiciary, again, in relation to the appellant’s failure to return and confiscation of bail. As the permission judge noted, the documents were unfortunately listed in the bundle under “other documents from Iran”. However this, whilst it may suggest that the documents are not as important as is now alleged, does not obviate the need for these documents to be fully considered.
9. It was Mr Farhat’s submission that these documents were central rather than being peripheral to the judge’s decision. It was also Mr Farhat’s submission that although the judge criticised the content of the claimed statement from the appellant’s father and the claimed lack of a detailed account from his father, if the judge had properly considered this in the context of the documents which had been produced, this in effect filled in any missing details in relation to the difficulties which his father claimed to have experienced as a result of the appellant.
10. Mr Avery submitted that the judge had made findings in relation to the disjointed nature of the appellant’s case and the evidence which went to the essential facts of the appellant’s claim. It was his further submissions that what the judge was saying, including at [45], was that there was nothing in the appellant’s account and his claim that his father had experienced difficulties given the nature of that account. There was a disconnect between the appellant’s documents and the statement from his father and Mr Avery submitted that the judge was entitled to say that there ought to have been more detail from the appellant’s father if the claim was credible.
Discussion
11. Although I share the judge’s conclusions that the evidence before him was lacking in detail particularly from the appellant’s father, it was not disputed by Mr Avery that the appellant had produced, however poorly set out in his supporting bundle and however disconnected from the other evidence, claimed documents from the Iranian authorities to his father as outlined. Mr Avery did not go so far as to argue that it could be definitively said that the judge would have reached the same decision had he taken into account these documents.
12. It is significant in my view that the judge on a number of occasions criticised the claimed lack of adequate evidence to support the appellant’s account of what had happened to his father. There is a thread running through the decision of the First-tier Tribunal as to the lack of confirmation of the actions which were said to have been taken against the appellant’s father. However the appellant claims that he did provide this confirmation in the form of the judicial letters and summons to his father, which the judge specifically stated had not been produced.
13. Whilst it is not entirely clear that this information, if considered, would rectify the significant weaknesses in the appellant’s claim, including specifically in relation to the evidence, or paucity thereof, from his father, it cannot be said that the judge would inevitably have reached the same conclusions if he had considered these documents in the round.
14. As the judge’s treatment of the documentary evidence and the evidence in general from his father was central to his assessment of the appellant’s case, I find that a fresh hearing must take place.
15. It is therefore not necessary for me to consider the remaining grounds. Suffice it to say however, that although the First-tier Tribunal found that there was very little confirmation of the substance of any claimed media criticism that the appellant had made of Iran since returning to the UK in 2012, it is arguable that the judge did not sufficiently engage with the appellant’s account that rather than the nature of the criticisms, it was rather the platforms on which he made that criticism including in pro-monarchy, anti-regime radio channels (Radio Javan) and articles in Persian Weekly (a publication which it is asserted has published anti-regime articles); it was submitted that this would associate the appellant with pro-monarchy and anti-regime elements, which the appellant had outlined in his statement and which the First-tier Tribunal failed to address. It is also arguable that the judge’s error in overlooking the documents that had been provided may have affected his overall conclusion that the appellant had failed to provide confirmation of substance in relation to his claim. Although the First-tier Tribunal also found, at [63] that it was ‘most unlikely’ that the Iranian authorities would have allowed him to leave if they had the concerns he stated there is no indication why the First-tier Tribunal rejected, if that is what the Tribunal did, the background evidence which appears to indicate that two individuals, Mazar Bahan and Abdolreza Tajik were released on bail and allowed to travel out of Iran after detention,
Conclusion
16. I am satisfied therefore that the decision of the First-tier Tribunal does contain a material error of law such that the decision of the First-tier Tribunal must be set aside in its entirety. No findings are preserved. Under Section 12(2)(b)(i) of the Tribunals, courts and enforcement Act 2007 and Practice Statement 7.2, the nature and extent of judicial fact finding necessary for the decision to be remade is such that it is appropriate to remit the case to the First-tier Tribunal to be heard by any judge other than Judge J McMahon. No findings are preserved.

Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

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 or any member of their 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.

Signed Dated: 12 April 2017

Deputy Upper Tribunal Judge Hutchinson

TO THE RESPONDENT
FEE AWARD

No fee was paid or is payable. I therefore make no fee award.

Signed Dated: 12 April 2017

Deputy Upper Tribunal Judge Hutchinson