Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-002827

First-tier Tribunal No: PA/58090/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 21 November 2024

Before

UPPER TRIBUNAL JUDGE BULPITT

Between

MN
(ANONYMITY DIRECTION MADE)
Applicant
and

Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr G Brown, Counsel instructed by Shawstone Associates
For the Respondent: Mr J Thomson, Senior Home Office Presenting Officer

Heard at Field House on 7 November 2024

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

1. This is the appellant’s appeal against the decision of First-tier Tribunal Judge GR Williams (the Judge) that was promulgated on 13 May 2024. In that decision the Judge dismissed the appellant’s appeal against the respondent’s refusal of his protection claim. The Judge made an anonymity order. Because this appeal concerns a protection claim, and lest anything said or done in these proceedings gives rise to a risk to the applicant I maintain that order.
2. The hearing before me was conducted remotely, meaning that whilst I was in Field House the parties appeared by video link via the Cloud Video Platform. There were no issues with the connection or communication.
Background
3. The appellant is 26 years old and is a citizen of Iraq. He is of Kurdish ethnicity and before coming to the United Kingdom was living in Sulaymaniyah in the Kurdistan Region of Iraq (KRI). The appellant arrived in the United Kingdom on 14 January 2022 in a boat and without leave to enter, stating that his life was not safe in Iraq. He claimed asylum and on 5 September 2023 was interviewed about that claim. In interview he claimed that he feared the family of Sozan, a lady whom he had met at University and wanted to marry. Sozan’s family had not approved of the relationship, rejected the appellant’s request for marriage, assaulted the appellant and threatened to kill him. The appellant feared that Sozan’s family would be able to carry out their threats because he said Sozan’s father is a leader of the influential PUK party, so he fled Iraq with the help of an agent, travelling through Turkey, Greece, France and eventually into the United Kingdom.
4. On 28 September 2023 the respondent issued the decision to refuse his protection and human rights claims. The respondent decided that the respondent’s claim did not bring him within the terms of the Refugee Convention and considered whether to grant humanitarian protection. It was accepted that the appellant is Kurdish, from the KRI and had a relationship with Sozan. It was not accepted that his life was at risk because of that relationship, as the respondent found the appellant’s credibility to be undermined by his failure to claim asylum before reaching the United Kingdom and that elements of his account were implausible and inconsistent with external information. The appellant appealed against that decision to the First-tier Tribunal.
5. Shortly before his appeal was heard the appellant served evidence of his Facebook account and asserted that he additionally feared persecution in Iraq because of the political opinion he had expressed in Facebook posts. Although this was a “new matter” which the respondent had not considered before, the respondent consented to the Judge considering it as part of the appeal. The respondent also conceded that if the appellant’s account about Sozan’s family were true then the appellant would not be able to return to Iraq safely. The Judge therefore identified that the issues he had to resolve in order to determine the appeal were (i) whether the appellant’s account about Sozan’s family was true; and (2) whether the appellant genuinely held political views that would have brought him to the adverse attention of the Iraqi authorities.
The Judge’s Decision
6. The Judge heard oral evidence from the appellant and SR who said he had taught the appellant in Iraq and knew about the appellant’s social problem with a leader of the PUK. The Judge also considered a consolidated hearing bundle plus the Facebook material that had been provided. Having identified the relevant law the Judge set out his findings on the evidence.
7. The Judge begins with the evidence from the appellant and SR. Having identified that it was common ground that the appellant had a relationship with Sozan and that the appellant’s account had generally remained consistent, the Judge noted at [30] an “inconsistency with regards to the appellant’s claims of being assaulted by Sozan’s brother and cousin” which in the context of the straightforward claim being advanced the Judge considered to “carr[y] a greater weight.” The Judge found the fact there was no direct contact between Sozan’s father as the patriarchal head of the family and the appellant to be something that diminished the reliability of the appellant’s account ([32]) and that on the appellant’s own account the intention of Sozan’s family was to end the relationship between the appellant and Sozan rather than to kill the appellant. Therefore the Judge found that the fact the relationship no longer exists means the threat to the appellant is negated ([34]). The Judge found the evidence of SR “weak and unpersuasive” being based on hearsay heard from others during visits SR has made to the KRI after the appellant left ([35]).
8. At [36] the Judge finds there to be a lack of evidence to corroborate the appellant’s account, in circumstances where he would have expected such evidence and find that this undermines the appellant’s account. At [37] the Judge finds the appellant’s credibility to be undermined by his decision not to await the outcome of an asylum claim he made in Greece and his failure to claim asylum during his fourteen days in the safe country of France.
9. The Judge then “draws all these matters together” at [38] and finds at [39] that “whilst the nature of the claimed threat of honour killing is consistent with the available background evidence, including the country expert report relied upon by the appellant…the account provided is not generally plausible and an inconsistent account has been advanced.” The Judge then concludes that the appellant has not proved the facts he seeks to rely upon to the lower standard of proof. Accordingly, at [41] the Judge finds that the appellant would not be at risk upon return to the KRI. In the alternative at [42] the Judge finds that even if the appellant had been threatened by Sozan’s brother and cousin he could relocate within the KRI to avoid and future risk from them.
10. The Judge then goes on to consider the appellant’s documentation at [43] – [46] finding that the appellant would be able to obtain relevant documentation from friends in his hometown so that he could be provided with the necessary documentation on his arrival at the airport in the KRI. At [47] – [62] the Judge considers the appellant’s claimed fear of persecution for reason of his political opinion as expressed at demonstrations and on Facebook. The Judge found the evidence to be of extremely limited nature and that the appellant’s activities will not have brought him to the attention of the authorities in the KRI. The Judge further found that the appellant does not genuinely hold anti government views but that the appellant’s activities have been an attempt to bolster his asylum claim ([60]). On this basis the Judge concludes the appellant would not be at risk in the KRI as a result of his political opinion ([62]).
11. The Judge then rejected the appellant’s protection appeal on all grounds and as it was confirmed that there was no separate human rights appeal the appeal was dismissed.
The appeal to the Upper Tribunal
12. The appellant challenges the Judge’s decision on three grounds. The first ground argues that the Judge failed to consider and give reasons for rejecting evidence submitted by the appellant from a country expert, Dr Ghobadi. The second ground challenges the Judge’s assessment of the appellant’s account and argues that the inconsistency the Judge identifies at [30] of his decision was not put to the appellant. It also argues that the Judge’s alternative finding that the appellant could internally relocate within the KRI to avoid any future risk, was contrary to the evidence of Dr Ghobadi. The third ground argues that the Judge’s assessment of the appellant’s ability to access the required documentation is predicated on a flawed assessment that the appellant is unreliable. There has been no challenge to the Judge’s findings about the appellant’s political opinion. Permission to appeal was refused by the First-tier but granted on all grounds by Upper Tribunal Judge Landes.
13. At the hearing Mr Brown focused on the first two grounds of appeal, it being accepted by all that the third ground was dependant on the Judge being found to have erred in his assessment of the appellant’s reliability. Mr Brown argued that the Judge made only a passing reference to the report of Dr Ghobadi at [39] of his decision and only having already come to the conclusion that the appellant’s account was not credible and reliable. Mr Brown submitted that the Judge should have given a clear indication of what weight he gave to the report however the appellant has been left unclear what view the Judge took of the evidence. In relation to ground 2 Mr Brown submitted that the inference drawn by the Judge that the appellant had given inconsistent evidence was based on an incorrect interpretation of the appellant’s evidence, and that the appellant was deprived of the opportunity to correct the Judge because the asserted inconsistency was not put to him. Mr Brown argued that the appellant had therefore not had a fair hearing and that the appeal should be remitted for a fresh hearing in the First-tier.
14. Mr Thompson argued that the report of Dr Ghobadi was of limited relevance to the Judge’s decision because Dr Ghobadi was commenting primarily on honour based violence towards women rather than towards men. Mr Thompson submitted that the Judge had given adequate reasons for his conclusion that the appellant’s account was not credible. By reference to the Presenting Officer’s note of the hearing in the First-tier, Mr Thompson acknowledged that the inconsistency identified by the Judge at [30] was not directly put to the appellant but submitted that this was not a material error that affected the fairness of the hearing and argued that it was for the Judge to assess the evidence that was given.
15. At the conclusion of the hearing I reserved my decision, which I now provide together with my reasons.
Analysis
Ground one
16. At [13] of his decision the Judge refers to the documentary evidence that was adduced before him and at [20] he states that he has considered all this evidence and weighed it in the round before reaching his decision. He refers to the report of Dr Ghobadi directly at [39] of his decision. Reminding myself that, without compelling reason to the contrary I am bound to assume that the Judge has taken the whole of the evidence into his consideration (see Volpi v Volpi [2022] EWCA Civ 464 at [2(iii)]) I conclude that when assessing the evidence holistically, the Judge has had regard to the expert report of Dr Ghobadi just as he says he has done.
17. I reach that conclusion notwithstanding the location of the first direct reference to Dr Ghobadi’s report coming at [39] of the Judge’s decision. I do not accept the assertion that this indicates the Judge has considered the report only having already reached the conclusion that the appellant is not reliable. This suggestion is in reality a comment about the form rather than the substance of the Judge’s decision. The Judge has to structure his written decision somehow and it is inevitable in a linear document that some factors must come before other factors. The decision should not be subject to narrow textual analysis or be construed as a piece of legislation or contract (see Volpi v Volpi at [2(vi)]). It is a carefully structured decision and it does not lead to the conclusion that the Judge has determined the appellant’s credibility before considering Dr Ghobadi’s report.
18. When he does refer to Dr Ghobadi’s report at [39], the Judge makes clear that he has considered it holistically and finds it to be consistent with the appellant’s account. No doubt the Judge does so having regard to Dr Ghobadi’s opinion that it is plausible that families refuse to allow marriages for various reasons such as financial grounds, and that it is plausible that the appellant had a relationship with Sozan, and to Dr Ghobadi’s general evidence about the importance of honour in Kurdish society. In the light of this finding by the Judge, the submission of Mr Brown that it is unclear from reading the Judge’s decision what he made of the expert report cannot succeed. On the contrary, the Judge has succinctly expressed at [39] his assessment that the appellant’s account was consistent with the report of Dr Ghobadi. Neither can the suggestion in the written grounds of appeal that there has a rejection of Dr Ghobadi’s report be maintained in the light of the Judge’s express view that the report is consistent with the appellant’s account. The reality is that the Judge did not reject Dr Ghobadi’s opinion but gave full regard to the extent to which that opinion was consistent with and supported the appellant’s account.
19. The Judge was entitled however to go on to find that even though it is broadly consistent with Dr Ghobadi’s report, he was not satisfied to the required standard that the appellant’s account is true. That was a matter for the Judge to assess as the fact finder and as Mr Thompson points out, the fact the appellant’s account was generally consistent with Dr Ghobadi’s report did not oblige the Judge to find it credible.
20. Contrary to what is said ground one therefore I am satisfied that the Judge has adequately considered the report of Dr Ghobadi when assessing the appellant’s case. It is the reasons that the Judge gives for that concluding the appellant’s account is untrue that give rise to the second ground of appeal.
Ground two
21. The focus of the grant of permission to appeal and of Mr Brown’s submissions at the hearing before me was the Judge’s consideration at [30] of what he described as an inconsistency in the appellant’s account about being assaulted by Sozan’s brother and cousin. In that paragraph the Judge says that (i) in his interview (Q40 and 41) the appellant appears to describe two occasions when he was threatened and assaulted by Sozan’s brother and cousin, (ii) in his oral evidence the appellant appeared to describe two occasions when he was beaten up by Sozan’s brother and cousin and that on the second occasion he was also threatened with a gun, but (iii) in his witness statement dated 13 June 2022 the appears to describe three incidents with Sozan’s family, two of which involved the appellant being assaulted and the third which involved him being threatened with a gun. The Judge notes that “this account of three separate incidents differs to the account advanced during the asylum interview and the hearing. At [38] of his decision the Judge describes this as a significant inconsistency.
22. Mr Brown suggested that the appellant’s witness statement was not necessarily referring to incidents on three different occasions, submitting that there was no inconsistency in the appellant’s evidence and that the Judge had drawn the wrong inference having misinterpreted the evidence. Mr Thompson by contrast submitted that the Judge’s assessment of the evidence was reasonable and that the reached a conclusion about the evidence he was rationally entitled to reach.
23. I remind myself of the need for appellate caution in reversing the Judge’s evaluation of the facts and that the Judge was in a far better position to analyse the evidence having seen the appellant give his evidence and having regard to the whole sea of evidence rather than the island hopping which is necessarily the case in an appellate court. It is trite to record that the evaluation of the evidence is a matter for the Judge of first instance whose expertise is in determining the facts. I also remind myself of the limitations of a judgement at first instance which are necessarily an incomplete impression made upon the judge by the primary evidence (see Lowe v SSHD [2021] EWCA Civ 62 at [29] – [31]).
24. I am not persuaded that the Judge has misinterpreted the evidence or drawn the wrong inference as has been suggested by Mr Brown. As the Judge acknowledged the appellant does not provide the clearest account of what happened in his asylum interview and in his witness statement leaving the Judge required to infer, analysis and assess what had been said. I consider the Judge’s conclusion having done so that the appellant was describing three distinct incidents in his witness statement to be reasonable. At [6] in that statement the appellant describes a time he was physically assaulted by Sozan’s brother when he found out that the appellant and Sozan were continuing their relationship. At [8] he describes a time when Sozan’s brother and cousin found Sozan and the appellant together and the brother and cousin battered him, humiliated him, videoed him and threatened him. At [12] he describes a subsequent time when Sozan’s brother and cousin again found the appellant and Sazan together and this time threatened him with guns. The conclusion that the appellant was describing in these passages three separate and distinct incidents in which he was threatened or harmed was one the Judge was entitled to reach on the basis of this evidence. It follows that the Judge was consequently entitled to conclude that the appellant’s oral evidence at the hearing that there were only two occasions when he was threatened or harmed, was inconsistent with his earlier account in his witness statement.
25. It was common ground in the hearing before me that this inconsistency was not put to the appellant during the hearing before the Judge. Mr Brown argued that this was a procedural unfairness and that had it been put, the appellant could have clarified any uncertainty about his account. In HA v SSHD (No 2) [2010] CSIH 28 Lord Reed (now the President of the Supreme Court) identified that the question of whether there is procedural fairness is fact-sensitive and an overall judgment must be made in the light of all the circumstances of a particular case. At [11] – [12] of his judgment Lord Reed said that where an applicant can generally be expected to be aware that the tribunal will have to assess their credibility, there will generally be no unfairness in a tribunal proceeding without drawing attention to a point which the applicant could reasonably expect to be plainly relevant to that assessment.
26. Having reflected on this, I am satisfied that in all the circumstances the procedure adopted by the Judge was a fair one notwithstanding the fact the apparent inconsistency in his evidence was not put the to the appellant during the hearing. It will always have been apparent to the appellant that his credibility was the central issue to the appeal and that his various accounts of events in the KRI were going to be carefully scrutinised by the Judge. Through his asylum interview, two witness statements and oral evidence the appellant was given every opportunity to give a clear account of what was, as the Judge identified, a relatively simple and straightforward claim about events in Iraq. The fact that there was such a lack of clarity was clearly something that the Judge was entitled to take into consideration and in circumstances where the Judge was having to analysis and assess an account which lacked clarity, fairness did not require the Judge to draw the appellant’s attention to an inconsistency in that account and invite an explanation for that inconsistency from him.
27. In all the circumstances, I find that there was no error in the Judge’s conclusion that the appellant’s account of events in the KRI has not been consistent. This was unquestionably a relevant factor for the Judge to consider when assessing the credibility of the appellant’s account. As the Judge makes clear at [38] however it was not the only factor which led the Judge to the ultimate conclusion that the appellant’s account of events in Iraq was not reasonably likely to be true. The Judge also identified the appellant’s failure to claim asylum in France and his leaving Greece before a claim there was resolved and the lack of corroborative evidence as factors which undermined the appellant’s credibility. Contrary to the assertion of inadequate reasoning made in the grounds therefore, the Judge provides an adequate explanation for why the appellant’s account has been rejected which, even though the appellant may disagree, enables him to understand why the Judge reached the conclusion he did.
28. In the original written ground two the appellant additionally submitted that the Judge’s alternative finding that the appellant could internally relocate within Iraq involved an error of law. In view of the fact I have upheld the Judge’s assessment of the appellant’s credibility and his rejection of the appellant’s account, any error made in this alternative assessment must be immaterial. The issue does however demonstrate the danger of making different evaluations based on alternative findings of fact. Here, the Judge’s says in the alternative at [41] that “if I am incorrect with regards to the finding that the appellant was threatened with a gun by Sozan’s brother and cousin I find the appellant could reasonably relocate within [the KRI].” It is subsequently apparent that this alternative evaluation is based on the facts being that the appellant had been threatened by Sozan’s family as the appellant claims, but that Sozan’s father was not a prominent member of the PUK as the appellant claims. This speculative situation is neither what the Judge found to be the case nor what the appellant claimed to be the case. In the circumstances this alternative evaluation is entirely unhelpful but it does not involve a material error of law.
Ground three
29. Although this ground was not actively pursued by Mr Brown in the hearing before me it was not withdrawn. It can however be considered fairly shortly. I have found that the Judge’s assessment of the appellant as an unreliable witness who gave an account that was not credible contained no error of law. There has been no challenge to the Judge’s finding that the appellant has sought to bolster his asylum claim with cynical sur place activities in the United Kingdom. In those circumstances there is nothing to undermine the Judge’s conclusion that the appellant would be able to rely on the help of friends to provide him with the documentation he will require to move within when he arrives in Iraq. Ground three therefore discloses no basis for finding an error of law by the Judge.
Conclusion
30. Notwithstanding Mr Brown’s careful and thoughtful submissions and arguments, I am satisfied that the Judge’s decision did not involve an error of law. The Judge has considered the report of Dr Ghobadi as part of his overall assessment of the evidence, he has adopted a fair procedure, has reached conclusions about the appellant’s credibility that were reasonably open to him and has adequately explained those conclusions. I find no basis for interfering with the decision reached by the Judge.

Notice of Decision
The appellant’s appeal is dismissed.
The decision of the First-tier Tribunal did not involve the making of a material error of law and therefore stands

Luke Bulpitt
Upper Tribunal Judge Bulpitt

Judge of the Upper Tribunal
Immigration and Asylum Chamber

19 November 2024