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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-005069
	First-tier Tribunal No: PA/58812/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

On 25 ^th of February 2025

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE HARIA

 

Between

 

HIB

(ANONYMITY ORDER MADE)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: In person and not legally represented

For the Respondent: Ms Mackenzie, Senior Home Office Presenting Officer

 

Heard at Field House on 10 February 2025

 

 

Order Regarding Anonymity

 

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant ( and/or any member of his family, expert, witness or other person the Tribunal considers should not be identified) 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 ( and/or other person). Failure to comply with this order could amount to a contempt of court .

DECISION AND REASONS

 

Anonymity

1.              The First-tier Tribunal Judge granted an anonymity order in this appeal and no party before me requested that it be set aside so I confirm the order above. In the circumstances, I have taken into account the starting point for consideration of anonymity orders is the principle of open justice and find that in this case because the appellant claims a risk of persecution on return to Nigeria the appellant's interests outweigh the principle of open justice and an anonymity order is appropriate.

Background

2.              The appellant a citizen of Iran appeals with permission against the decision of First-tier Tribunal Judge Austin ( "the Judge") dated 19 August 2024 ( "the Decision"). The Judge in the Decision dismissed the appellant's appeal against the respondent's refusal dated 12 October 2023 of his protection claim made on 12 December 2021.

3.              The appellant claimed protection on the basis of his fear of persecution upon return to Iran due to his Kurdish ethnicity, his activities as a Kolbar in distributing leaflets in support of the Kurdistan Democratic Party of Iran ("KDPI") and his sur place activities.

The decision of the respondent

4.              The respondent accepted his nationality and identity. The respondent did not accept the appellant's account on the basis of inconsistencies and a lack of detail. The respondent placed reliance on S.8 of the Asylum & Immigration (Treatment of Claimants, etc) Act 2004.

The First-tier Tribunal hearing

5.              The appellant was represented at the First-tier Tribunal hearing by Counsel instructed by Lei Dat and Beig Solicitors. He gave evidence through an interpreter appointed by the Tribunal. The respondent was represented by a Home Office Presenting Officer.

Grounds of appeal

6.              The application for permission drafted by the appellant's solicitors raises three grounds of appeal which may be summarised as follows:

1. Ground 1: asserts the Judge placed undue focus on the screening interview without proper consideration of reasonable explanations given by the appellant and without taking into account the appellant's particular circumstances.
2. Ground 2: asserts the Judge failed to make findings on the arrest warrant issued against the appellant.
3. Ground 3: asserts the Judge failed to make findings in line with the Country Guidance case of HB(Kurds) Iran CG [2018] UKUT 430 in relation to the appellant's sur place activities.

Grant of permission

7.              Permission was refused by First-tier Tribunal Judge Adio on 16 October 2024. The appellant submitted a renewed application for permission to the Upper Tribunal.

8.              On the 2 December 2024, Upper Tribunal Judge Rintoul granted permission on all grounds stating that:

"It is arguable that the judge erred in drawing inferences adverse to the appellant for not stating that he had face (sic) difficulties due to political activities if, as averred, the point has not been taken by the respondent, and where the appellant had given details of what he had done ( renewed ground 1).

While there is less merit in the other grounds, I grant permission on all grounds."

Rule 24 Response

9.              Ms Mackenzie confirmed there was no rule 24 response from the respondent.

The Upper Tribunal hearing

10.          The appellant's representatives having uploaded an Upper Tribunal bundle and a Skeleton Argument to CE file, wrote to the Upper Tribunal on the last working day before the hearing stating that they were no longer acting for the appellant as they were without funds. They provided the appellant's contact details and stated the appellant had confirmed he intended to rely on the uploaded bundle and Skeleton Argument.

11.          The appeal came before me for a video hearing. It appeared that the appellant was attempting to connect to the video hearing but was having difficulty, so the appeal was put back into the list to enable some assistance to be provided to the appellant by the Tribunal staff. The Tribunal clerk on my instruction contacted the appellant and assisted him to connect to the hearing. On hearing from the appellant it was apparent that although an interpreter had not been requested, he required an interpreter. The appellant confirmed he required an interpreter in the Kurdish Sorani language. The appeal was put back into the list whilst the Tribunal attempted to secure an interpreter. The Tribunal managed to arrange for an interpreter to attend the hearing via video link.

12.          The hearing commenced once the interpreter and the parties joined the hearing. The appellant and interpreter confirmed they understood each other.

13.          The appellant confirmed he wished to proceed with the hearing, he relied on the documents uploaded by his previous representatives and stated that he had nothing further to add except that the Decision should be reconsidered.

14.          At the outset of the hearing, Ms Mackenzie for the respondent stated that she accepted the Judge had erred as asserted in Ground 1. She conceded the Judge had not applied anxious scrutiny when considering the screening and asylum interviews.

15.          In addition, Ms Mackenzie pointed to other "Robinson obvious" errors made by the Judge. She submitted the Judge had made an error of fact at [12] in the Decision where the Judge refers to the screening interview and misstates what the appellant had said in the screening interview. The appellant had stated that he had applied for asylum because he was a Kolbar and was caught. The appellant had made no mention of smuggling, whereas the Judge at [12] states:

"I find that the appellant's account of the facts which led to him leaving Iran in August 2021 is an unreliable account, and the reason is that his account has lacked particularity and especially has been inconsistent because when screened and asked to give the reason for leaving Iran he said that he was caught smuggling alcohol."

16.          Ms Mackenzie submitted that the Judge in stating at [12] the appellant had claimed he was caught with others, makes a further error of fact. She stated that there was no mention of the appellant claiming "... he was caught with others..." anywhere in the evidence, yet the Judge relies on this error of fact, drawing an adverse inference against the appellant as the Judge states:

"The core of his claim is that he was caught with others smuggling leaflets and although he escaped his name must have been given away by others who were caught. I find that it is inconsistent that when asked the direct question about his reasons for leaving the appellant mentioned nothing about political activity. The appellant has not provided a reasonable explanation for this inconsistency"

17.          Ms Mackenzie submitted that the factual error that the appellant had claimed "...he was caught with others..." was compounded by unfairness as the Judge finds the "... appellant has not provided a reasonable explanation for this inconsistency" when there is no record of whether this inconsistency was put to the appellant.

18.          In relation to [13] of the Decision, Ms Mackenzie stated that the respondent in the refusal decision had accepted the appellant's claim to be a Kolbar involved in distributing leaflets for the KDPI. She submitted that the respondent considered the appellant had been engaged in low profile political activity. Whereas the Judge at [13] goes behind this concession stating that:

"I also find that in the circumstances where the appellant was interviewed in full and said that he had never been involved in politics is inconsistent with his factual claim that for three months he was smuggling KDPI anti-government leaflets into Iran. How could that be anything other than an involvement in politics,..."

19.          In conclusion, Ms Mackenzie submitted that the respondent concedes the Judge materially erred as asserted in Ground 1 and that it was manifestly unfair to draw adverse inferences against the appellant on the basis of errors of fact and without giving the appellant an opportunity to provide an explanation.

20.          Ms Mackenzie having conceded the Judge had erred as pleaded in Ground 1 did not address me on the remaining Grounds.

21.          The appellant confirmed he agreed with Ms Mackenzie. Both parties indicated that they considered the appeal should be remitted to the First-tier Tribunal for a fresh hearing.

22.          At the end of the hearing I announced my decision that I agreed the Judge had materially erred as asserted in Ground 1 and that the Decision of the Judge was set aside and remitted to the First-tier Tribunal for a fresh hearing by a judge other than Judge Austin. I now give me reasons.

Error of Law Decision

23.          Given Ms Mackenzie's concession, I can be brief. I am in agreement with Ms Mackenzie that the Judge made a number of errors and ultimately the appellant was deprived of a fair hearing. The Judge made errors of fact as to what the appellant had said in his screening and asylum interviews and the Judge relied on these as inconsistencies to draw adverse inferences against the appellant.

24.          In JA (Afghanistan) 2014 EWCA Civ 450, Moore-Bick LJ cautions against judges placing too much weight on inconsistencies in asylum interviews and screening interviews because he states "there is room for mistakes and misunderstandings".

25.          Where a judge intends to give weight to such a discrepancy or inconsistency, it is incumbent on the judge as a matter of procedural fairness to put the inconsistency to the appellant to see if there is a reasonable explanation for the inconsistency. There is no record of the Judge putting the inconsistency to the appellant. The consequence of this is that the appellant was not given an opportunity to put forward an explanation. In these circumstances it was unfair of the Judge to rely on the discrepancy to make a negative credibility finding.

26.          The Judge appears to ignore what the appellant had said when asked at question 3.1 of his screening interview, why he had come to the UK. The screening interview record shows the appellant had stated, " I have come to apply for asylum because I was a kolbar and was caught with alcohol and the Ettelat were after me." This indicates a lack of anxious scrutiny.

27.          Ms Mackenzie drew my attention to other significant errors of fact on the part of the Judge which had not been raised by the appellant in the grounds seeking permission, however in line with AZ (error of law: jurisdiction; PTA practice (Iran) [2018] UKUT 245, I find these errors to be obvious, serious and relate to the appellant's claim for protection. I find that the errors are material to the outcome of the appeal.

28.          The finding at [13] the appellant had "...said that he had never been involved in politics..." was clearly an error of fact. The respondent had on the basis of the appellant's claim accepted he was a Kolbar involved in low profile political activity distributing leaflets for the KDPI.

29.          It is unclear why the Judge has taken it upon himself to go behind the reasons given by the respondent, and make findings of fact wholly unsupported by the evidence without giving the appellant an opportunity to respond. This error on its own amounts to procedural unfairness.

30.          This error informs the other findings made by the Judge at [13] that:

"It is my view that he would have said at the first and second opportunity that the reasons were because of being caught in political activity and that he had been politically active in Iran, and yet he made neither statement when given the chance."

31.          The errors are manifestly material to the outcome of the appeal.

32.          I am satisfied for all the above reasons that the appellant did not have a fair hearing and that the findings in respect of the appellant's credibility are flawed.

33.          It is agreed by both parties that given the extent of the errors in relation to the credibility findings that no findings should be preserved, and that the decision should be set aside in its entirety. While I am mindful of paragraph 7 of the Senior President's Practice Statements of 10 February 2010, it is the case that the appellant has yet to have an adequate consideration of his asylum appeal at the First-tier Tribunal and it would be unfair to deprive him of such consideration. I am therefore in agreement with this course of action.

34.          The appellant indicated that he was now in a relationship. I informed the appellant that I could not advise him and suggested that he may wish to seek legal advice in respect of this and if could not afford the fee he may be able to obtain pro bono advice.

 

Notice of Decision

1.        The decision of the First-tier Tribunal involved the making of an error of law and is set aside in its entirety.

2.        I remit the appeal to the First-tier Tribunal for a fresh hearing de novo before a judge other than First-tier Tribunal Judge Austin.

 

 

N Haria

 

Deputy Upper Tribunal Judge Haria

Immigration and Asylum Chamber

 

 

19 February 2025