Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/12823/2016

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On March 26, 2018
On May 02, 2018

Before

DEPUTY UPPER TRIBUNAL JUDGE ALIS

Between

MR YASSIN QADR
(NO ANONYMITY DIRECTION made)
Appellant
and

the Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Miss Tabbasum, Legal Representative
For the Respondent: Ms Aboni, Senior Home Office Presenting Officer

DECISION AND REASONS
1. I do not make and anonymity order.
2. The appellant is an Iranian national. He claimed to have entered the United Kingdom clandestinely on April 22, 2016 and claimed asylum on May 11, 2016. The respondent refused his claim on November 8, 2016.
3. The appellant lodged grounds of appeal on November 18, 2016 under Section 82(1) of the Nationality, Immigration and Asylum Act 2002. His appeal came before Judge of the First-tier Tribunal Davies (hereinafter called "the Judge") on August 14, 2017 and in a decision promulgated on August 30, 2017 the Judge refused the appeal on all grounds.
4. The appellant appealed this decision on September 11, 2017. Permission to appeal was refused by Designated Judge of the First-tier Tribunal Woodcraft on November 9, 2017 but when those grounds were renewed Upper Tribunal Judge McWilliam granted permission on January 9, 2018. She found it arguable (a) it was unclear how old the Judge found the appellant to be as at the date of hearing, bearing in mind there was no Merton compliant age assessment report and (b) no account was taken of appellant's age when the events were supposed to have occurred.
5. This matter came before me on the above date.
SUBMISSIONS ON ERROR IN LAW
6. Miss Tabbersum relied on the grounds of appeal that led to permission being granted and submitted that the decision was flawed because firstly there was no Merton compliant age report before the Judge and secondly it had been incumbent upon the Judge to make a specific finding about the appellant's age. The Judge had made positive findings on aspects of his case but ultimately rejected his case attaching no weight to his age at the time he was in Iran smuggling. The Judge had accepted that he was smuggling illegal items but failed to assess risk on return against that background. Whilst he had rejected the appellant's claim the Judge nevertheless should have considered the fact that he should not be required to lie about his activities, if questioned.
7. Ms Aboni submitted there was no material error in law. The Judge had considered the evidence regarding his age and whilst there was no Merton compliant report there was a statement about his age and the Judge made findings that were open to him. The Judge had concluded that he was over the age of 18 by a clear margin at the date of hearing and he was over the age of 18 when he entered the United Kingdom. The Judge further concluded that the appellant had told untruths about his age to benefit himself and the Judge, having assessed all the evidence, concluded he was not a credible witness and that he had not come to the attention of the authorities. There was therefore no risk on return because he fell into the category of a failed asylum seeker, who had left illegally, and case law made clear that such persons did not face a risk of persecution or face their rights under ECHR been breached.
FINDINGS ON ERROR IN LAW
8. This was an appeal brought by the appellant who claimed to have smuggled illegal goods and that he had come to the attention of the authorities.
9. There was an issue over his age and this led to the local authority undertaking an age assessment of him. Despite the best efforts of both the appellant's representative and the respondent that report was not put before the Judge and whilst that report is now available today, it is not something I have had regard to when deciding this issue.
10. In submissions, it was argued that the appellant was 16 years of age when he carried out his smuggling activities and that his age was consistent with the country evidence. The Judge was mindful that the appellant's age was in dispute as he commenced his findings on this very point. He reminded himself that it was fraught with risk to base an assessment on appearance and demeanour alone because a person's ethnicity, culture, education and background could all affect visual assessment. The Judge therefore made it clear that he would be assessing the appellant's age having regard to all the documentary evidence and evidence given to him.
11. The Judge did not require corroboration but noted that there were significant credibility issues in his appeal. This was not a case where the appellant had given a single age and had stuck to it but it was a case where there had been various accounts of age put forward.
12. He was questioned during the hearing about his identification document and the responses he gave were such that the Judge was critical about his account and concluded this aspect lacked credibility. He concluded at paragraph 21 of his decision that he was "someone older than 18 years of age by a clear margin". At paragraph 22 he stated, "I do not accept that the appellant has established even to the lower standard that he was under the age of 18 years when he entered the UK. I am satisfied that he was an adult when he arrived."
13. Whilst the Judge accepted that it was reasonably likely that he had been involved in cross-border trading or transport of goods or smuggling the Judge had to decide the extent of his activities. He had regard to the appellant's interviews and found his account of what happened on December 29, 2015 to be inconsistent with the country information and he further found he gave inconsistent evidence about the Pasda.
14. The Judge was highly sceptical of how he had been identified as he gave different accounts-in his substantive interview he suggested it was because he had left his horse behind but in oral evidence he stated that someone had given his name.
15. The Judge carried out a careful examination of his evidence and ultimately concluded that his evidence was both unconvincing and lacking in credibility. He concluded at paragraph 38 that he had not come to the adverse attention of the Iranian authorities.
16. There were further issues of credibility raised such as the fact he had described himself as an Iraqi when of course he is an Iranian. He admitted using various names and ages in order to bolster his case. At paragraph 45 of his decision the Judge concluded the appellant was neither a credible nor truthful witness and that he had been evasive throughout.
17. The Judge said at best he had probably been "advised tactically by a people smuggler at the best way of deceiving national immigration authorities so as to maximise his chances of being allowed to stay".
18. It has been argued before me that the respondent should never have proceeded with the decision letter without a fully compliant report. I accept that in an ideal world there would be a fully compliant report, but this was a case where there was a witness statement available about age, but the Judge chose not to rely on that document alone but chose to rely on all the evidence in deciding how old he was.
19. Permission was granted on the basis that it was arguable he should have made a specific finding on his age. I do not find that the Judge was able to make a specific finding on his age for the simple reason that he is not an expert. All the Judge could do was to make a finding about whether he was over or under the age of 18.
20. The Judge made two clear findings in paragraphs 21 and 22 of his decision. He made a finding that he was over the age of 18 before he came to the United Kingdom and that he was someone older than 18 years of age by a clear margin by the time of the hearing.
21. I therefore find that the Judge did make clear findings on age.
22. He also made clear findings when considering the age of the appellant when he may have been carrying out his smuggling activities. The country evidence makes it clear that teenagers carried out such smuggling and I remind myself that teenagers spanned the age 13 to 19. He had concluded that when he arrived here he was not under the age of 18.
23. It was also argued that the Judge failed to consider the risk brought about by his activities. The Judge properly considered the case law of SSH and HR (illegal exit: failed asylum seeker) Iran CG [2016] UKUT 00308. The Judge had made it clear that the appellant had not come to the adverse attention of the authorities and consequently as a failed asylum seeker who had left illegally he would not be at risk.
24. Having considered both grounds advanced the hearing I am not persuaded there is a material error in law.
DECISION
25. The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
26. I uphold the previous decision.

Signed Date 26/03/2018

Deputy Upper Tribunal Judge Alis

TO THE RESPONDENT
FEE AWARD

I do not make a fee award as I have dismissed the appeal.

Signed Date 26/03/2018

Deputy Upper Tribunal Judge Alis