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

 

IN THE UPPER TRIBUNAL Case No: UI-2024-005153

IMMIGRATION AND ASYLUM CHAMBER

First-tier Tribunal No: PA/59887/2023

LP/07653/2024

 

THE IMMIGRATION ACTS

	Decision & Reasons Issued:
	On 12 February 2025

 

Before

 

Deputy upper tribunal JUDGE Kelly

 

Between

 

MSA

(ANONYMITY ordered)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr Rahsid, Counsel instructed by Logan Kingsley Limited

For the Respondent: Mr Thompson Home Office Presenting Officer

 

Heard at Bradford on the 3 ^rd February 2025

 

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 member of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

Introduction

1.              The appellant is a citizen of Iraq. The respondent refused his protection claim on the 25 ^th October 2023 and his appeal against that refusal was dismissed by First-tier Tribunal Judge Roblin on the 7 ^th September 2024. The appellant was granted permission to appeal against Judge Roblin's decision and hence the matter came before me.

Background

2.              The essence of the appellant's claim before the First-tier Tribunal can be summarized as follows. He had a sexual relationship with L, the daughter of a high-ranking member of the Patriotic Union of Kurdistan (PUK), N. N wished his daughter to marry his bodyguard, K. N accordingly refused the appellant's request for permission to marry her. On the following day, the appellant was assaulted and beaten by a group of men that included K. The appellant therefore fled to the UK where, on the 28 ^th October 2021, he claimed surrogate protection from N and K.

Findings of the First-tier Tribunal

3.              So far as is relevant to the grounds of appeal, the First-tier Tribunal Judge's reasons for dismissing the appeal may be summarised as follows.

4.              The judge found that the appellant had failed to give a credible account of the events that he claimed had caused him to leave Iraq. The judge summarised their reasons for this finding at paragraph 32 of the Decision -

I find it implausible that the Appellant asked L to marry him knowing that she had been promised in marriage to someone else. I find it implausible that the Appellant would not take his phone with him when he left Iraq particularly if he was planning to meet L in another country. I find the Appellant's account lacks credibility. I have assessed the evidence as a whole and in the round. The Appellant's account contains elements that are inconsistent, contradictory and lack detail, the cumulative effect of which is to undermine the credibility of the Appellant's account and the veracity of the Appellant's claims.

5.              The judge thereafter considered each of the four issues in the appeal that he had earlier identified (at paragraph 9), beginning with the question: 'Does the Appellant's claim establish a [Refugee] Convention reason?'. The judge's answer to this question, "based on my findings which I bring forward" [33], was that they "do not accept the Appellant belongs to a PSG [Particular Social Group]" [35]. Similarly, the judge resolved the three remaining issues against the appellant by reference to their earlier factual findings, thereby concluding that the appellant was (i) "not at risk of honour-based crime due to his relationship" [38], and (ii) "does not require sufficiency of protection or internal relocation"[39].

The grounds of appeal

6.              The appellant was granted permission to appeal against the above decision on two linked grounds -

(1)    The judge nowhere indicated to what standard of proof he had held the appellant's evidence in finding that it fell short of what was required to substantiate the factual basis of his claim;

(2)    The reasons given for finding that the appellant's account lacked credibility were perverse and/or took account of immaterial matters.

Analysis

7.              Before turning to the grounds of appeal, I make clear that no criticism is levelled at the general structure of the Decision, whereby the judge makes factual findings prior to applying the law to those findings. That general approach is, in my judgement, the correct one. Rather, the criticisms are confined to the first part of the two-stage approach, namely, the fact-finding part.

8.              There are various ways in which a judge may explain the standard that they have applied to the evidence when deciding whether or not a litigant has discharged the burden of proof. Some judges choose to do this by way of a discrete section in their decision dealing with the legal framework of the appeal that includes a reference to the applicable burden and standard of proof, whilst others may choose to incorporate a reference to it within the findings themselves. An example of the latter may read something like, "I do/do not find that it is reasonably likely that the following claimed event(s) occurred". However, explain it they must. Thus, whilst Mr Thompson was right to submit that an appellate tribunal should be slow to conclude that a specialist tribunal of first instance has incorrectly applied the law, it cannot in my judgement be assumed to have been correctly applied in circumstances where the decision is entirely silent about a matter as fundamental as the standard of proof. This is especially so in relation to asylum claims, where the standard of proof differs according to whether the claim was made before or after the commencement of the Nationality and Borders Act 2022. If authority is needed for this proposition, it can be found in the judgements of the Court of Appeal in MAH v The Secretary of State for the Home Department [2023] EWCA Civ 216. I am accordingly satisfied that in failing to state the standard to which the evidence was found to fall short, the judge made an error of law. Moreover, in the absence of such a statement, I do not consider it safe to assume that the judge was applying the standard of a reasonable degree of likelihood when making their findings.

9.              That said, I do not accept the suggestion in the grounds of appeal that the judge expressly applied the wrong standard of proof. That suggestion is based on a finding concerning a particular reply that the appellant had given in cross-examination, which the judge described as, "evasive and improbable" [25]. I do not accept that the judge was thereby indicating that he had applied the civil standard of proof of 'a balance of probabilities' rather than the applicable standard of 'a reasonable degree of likelihood'. Given the context within which that the judge made that observation, I am satisfied that they were merely expressing their belief that the appellant's explanation for why he assumed L's father would accept his relationship with his daughter was one that they found to be inherently improbable. In other words, the judge found it implausible.

10.          Turning to the second ground of appeal, this makes several criticisms of the reasons that the judge gave for finding that the appellant had failed (to whatever standard they were applying) to give a credible account of events leading to his departure from Iraq. It will suffice to say that, with the single exception that Mr Thompson very properly conceded (see below), those criticisms amount in my judgement to nothing more than a quarrel with the judge's reasons. They are not therefore appropriately characterized as being either 'perverse' or based upon immaterialities.

11.          The exception to this is the criticism of the finding made in paragraph 29 of the Decision, whereby the judge (unfairly in my view) drew an adverse inference from the appellant's failure to volunteer his recent claim that his agent had confiscated his mobile telephone prior to his arrival when answering questions in his asylum interview. The fact of the matter is that at question 20 (the question to which the judge referred in this context), the appellant was being asked whether he possessed any identity documents. He could not therefore reasonably have been expected also to have mentioned what had become of his mobile telephone.

12.          Had the judge's error of law concerning the appellant's failure to mention what had become of his mobile telephone stood alone, I would not have exercised my discretion to set their decision aside. As it is, this error adds to my concern that, absent an express indication to the contrary, the judge may have applied too-high-a-standard of proof when assessing the appellant's overall credibility. I therefore conclude that the only safe course of action is to set aside the judge's decision and for the appeal to be remitted to the First-tier Tribunal for a complete rehearing.

 

Notice of Decision

1.       The appeal is allowed, and the decision of the First-tier Tribunal is set aside with none of its original findings being preserved.

2.       The appeal is remitted to the First-tier Tribunal for a complete rehearing before a judge other than Judge Roblin.

 

 

David Kelly Date: 4 ^th February 2025

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber