United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: PA/00292/2019

 

 

THE IMMIGRATION ACTS

 

 

Heard at Field House	Decision & Reasons Promulgated
On 6 June 2019	On 3 July 2019

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE J F W PHILLIPS

 

 

Between

 

mR M C

(ANONYMITY DIRECTION MADE)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

 

Representation :

For the Appellant: Ms S Panagiotopoulou, Counsel instructed by Montague solicitors

For the Respondent: Mr C Avery, Home Office Presenting Officer

 

 

DECISION AND REASONS

 

1.              I make an anonymity direction under Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 in order to protect the anonymity of the Appellant who claims asylum. This direction prohibits the disclosure directly or indirectly (including by the parties) of the identity of the Appellant. Any disclosure and breach of this direction may amount to a contempt of court. This direction shall remain in force unless revoked or varied by a Tribunal or Court.

2.              This is an appeal against the decision of First-tier Tribunal Judge Haria in which she dismissed the appeal of the Appellant, a citizen of Turkey, against the Secretary of State's decision to refuse asylum and issue removal directions.

3.              The application under appeal was refused on 5 December 2018. The Appellant exercised his right of appeal to the First-tier Tribunal. The appeal came before Judge Haria on 19 March 2019 and was dismissed. The Appellant applied for permission to appeal to the Upper Tribunal. The application was granted by First-tier Tribunal Judge Boyes on 23 April 2019 in the following terms

"The first ground, as it appears to be, is that the reasoning of the judge was woeful and there was no attempt to explain such stark findings in light of that which was found to be proven. Secondly, ground 2 appears to be that the judge has categorically failed to engage with the relevant case law and has not, at all, considered any of the risk factors.

Grounds one and two are clearly arguable. I accept that it is difficult to see whether findings are in relation to the Appellant's claims. It is arguable that there is no assessment of the facts, no findings in terms of reasoning for refusal and the paragraph 69 and 70 seemingly appear out of nowhere.

Ground two is arguable as there is no mention at all by the judge as to the guideline authority nor any assessment at all of risk."

Background

4.              The history of this appeal is detailed above. The Appellant is a citizen of Turkey born on 21 August 1992. He arrived in the United Kingdom on 21 June 2018 and he claimed asylum on the same day. The basis of his claim was that he was of Kurdish ethnicity and an active member of the HDP and had been persecuted as a result. The persecution included detention and torture and a demand to work as an informant. Having been forced to sign a blank piece of paper and then released with a reporting condition the Appellant fled the country and fears persecution if returned.

5.              The Respondent refused the application accepting that the Appellant was a national of Turkey but not accepting that he was of Kurdish ethnicity, a member of the HDP or that he had been detained and ill-treated. In dismissing his appeal, the Judge found that the Appellant was Kurdish as claimed, that he was a member of the HDP and also the Kurdish People's Democratic Assembly in Britain. The Judge also found that it was conceivable that even as an ordinary member of the HDP the Appellant was targeted and arrested at his home however the Judge found the Appellant's claim to have been required to report to the police on release not to be credible and concluded (at paragraph 70) that the core of the Appellant's account of persecution lacked credibility.

Submissions

6.              For the Appellant Ms Panagiotopoulou said that she agreed with the points made in the grant of permission to appeal. The Judge accepted certain aspects of the case, that the Appellant was Kurdish and a member of the HDP having seen photographs and a letter from the Kurdish People's Democratic Assembly. Paragraph 61 seems to infer that the Judge accepts the Appellant's account of his first two detentions. The challenge to the Appellant's credibility seems to be on the basis of the failure of the police to check the Appellant's home when he failed to report and the failure of the police to take no further action after initially threatening his father. This does not seem to take any account of the fact that the Appellant had left the country. Having found that the Appellant was a member of the HDP of Kurdish ethnicity who had been active in the United Kingdom the Judge takes no account of the authority of IK when considering risk on return despite the fact that the Appellant falls into a number of risk categories.

7.              For the Respondent Mr Avery said that the way that the Judge has set things out is confusing and the Judge does not appear to have made specific findings on each aspect however paragraph 70 shows that the Judge considered the evidence in the round before finding that the core of the Appellant's account lacked credibility and at paragraph 62 and elsewhere the Judge refers to a lack of supporting evidence. Mr Avery accepted that paragraphs 69 and 70 were hard to understand but said that the Judge had analysed the matter in detail and had given reasons.

8.              I gave an oral decision allowing the appeal and remitting to the First-tier Tribunal for hearing afresh with no findings preserved. My reasons are given below.

Decision

9.              The Appellant is a Turkish national. The basis of his claim to asylum is that he is of Kurdish ethnicity, he is a member of HDP in Turkey and the Kurdish People's Democratic Assembly in the UK and he has been persecuted in Turkey having been arrested and detained on three occasions and having suffered torture in detention. The only factor accepted by the Respondent was his nationality.

10.          Having heard oral evidence from the Appellant the First-tier Tribunal Judge accepts that the Appellant is Kurdish (paragraph 46) and accepts that the Appellant has produced sufficient evidence to show that he is a member of the HDP in Turkey and a member of the Kurdish People's Democratic Assembly in the United Kingdom (paragraph 58). It is in my judgement significant that before reaching each of these conclusions the Judge painstakingly analyses the evidence upon which her conclusions in these respects are based. Indeed before concluding that the Appellant was a member of the HDP the Judge goes through his answers to questions, photographs that were submitted and a letter ostensibly from the HDP. In respect of this letter the judge has doubts about its authenticity because, although it bears a HDP stamp, it is not written on HDP letterhead. As a result, the Judge gives little weight to this letter (paragraph 55) but nevertheless goes on to find that the Appellant was a member of both organisations. These are positive credibility findings made after weighing the evidence and ones that of themselves would cause the Appellant on return to potentially fall within some of the risk categories identified in the country guidance decision of IK (Returnees - Records - IFA) Turkey CG [2004] UKIAT 00312. I will return to this below.

11.          Having made these findings, and in doing so having found at paragraph 43 that the Appellant answered all questions put to him and that his answers "were mostly consistent with the account he had given in his screening and asylum interviews" the Judge went on to consider the Appellant's account of his arrests and detention. The Judge notes that his account in this respect was compatible with the objective evidence and finds that it is "conceivable that even as an ordinary member of the HDP the Appellant was targeted and arrested at his home". The Judge does not appear to make any specific findings as to the Appellant's first two arrests but in respect of his third detention concludes that his account of release on reporting conditions is not credible. There seem to be two reasons for this. Firstly that the police would have immediately checked the Appellant's home when he failed to report on the first occasion and secondly that having come to the Appellant's house and threatened his father on one occasion they would have returned and done so again. I should add that there is also a reference (at paragraph 59) to the fact that the Appellant's brother's witness statement did not provide support for his account of arrest.

12.          Dealing simply with the Judge's credibility assessment so far as the arrests and detentions are concerned the findings are in my judgement inadequate. Firstly, there is no specific finding either way so far as the first two arrests are concerned. Secondly as far as the third arrest is concerned the findings are either inadequate or even perverse. There is no reason why it should be expected that the police would immediately check the Appellant's home if he failed to report. This would probably not happen in this country and there is no objective evidence to suggest that the police take such swift action in Turkey. As for the failure of the police to continue their harassment of his father the Judge does not appear to take into account the fact that the Appellant had left the country. The adverse credibility finding in this respect is unsafe.

13.          However, and in any event, even given the Judge's finding in respect of the third detention the conclusion then drawn at paragraph 70 "having considered the whole of the evidence in the round I find that the core of the Appellant's account of persecution lacks credibility and is a fabrication designed to enable the Appellant to gain access to the UK" comes from nowhere. The Judge appears to have found the majority of the Appellant's account credible and then having had reservations about one aspect has apparently reversed the positive finding to make a wholesale negative finding. In my judgement this can only be perverse.

14.          Finally returning to risk on return and taking into account the positive findings there is no examination of risk. It may be that the Judge felt that paragraph 70, as quoted above, overrode the earlier positive findings and that examination of risk on return was therefore not necessary. Whether or not this is the case it is my judgement that the failure to consider risk on return against the established country guidance case amounted to an error of law in its own right

15.          The contradictory nature of this decision leads me to the conclusion that the only proper way to deal with matters is to start again. To cherry pick the positive findings given the confusing nature of the findings as a whole would be wrong. In such circumstances and in accordance with the president's guidance this matter should be remitted to the First-tier tribunal for hearing de novo.

 

Summary of Decision

16.          Appeal allowed.

17.          The decision of the First-tier Tribunal is set aside, and the matter is remitted to the First-tier Tribunal to be heard afresh.

 

 

Signed Date: 28 June 2019

 

J F W Phillips

Deputy Judge of the Upper Tribunal