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

 

IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-004037
	First-tier Tribunal Nos: PA /60493/2023 LP/03578/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

On 4 ^th of December 2024

 

Before

 

UPPER TRIBUNAL JUDGE LOUGHRAN

 

Between

 

ZM

(ANONYMITY ORDER MADE)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr K Scott, Counsel, Pickup and Scott Solicitors

For the Respondent: Ms J Isherwood, Senior Home Office Presenting Officer

 

Heard at Field House on 18 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.               The appellant appeals with permission of Upper Tribunal Judge Gill against the decision of First-tier Tribunal Judge A M S Green (the judge) dated 2 June 2024, dismissing his appeal against the refusal of his protection/human rights claim.

Factual Background

2.               The appellant is a national of Iran who was born on 18 September 2004. He is of Kurdish ethnicity and a Sunni Muslim. He lived with his mother and father in Gorasher, Sardasht.

3.               The appellant's father was a tailor. It is the appellant's case that his father helped the KDPI by making clothes for them and by distributing leaflets and the appellant helped his father. On one occasion when the appellant was at his sister's house the appellant's mother telephoned and said that the authorities had come to the house looking for the appellant and his father. The appellant's brother-in-law took the appellant to a friend's house to hide him. The appellant's brother-in-law made some phone calls and subsequently told the appellant that his father had been arrested.

4.               The appellant was driven to Turkey. He subsequently entered the UK by boat on 3 November 2021 and claimed asylum on 8 November 2021. The appellant was 17 years old on his arrival in the UK.

The Respondent's decision and review

5.               The respondent accepts the appellant's identity, nationality and age (and that the appellant was a child on arrival in the UK), that he is of Kurdish ethnicity and that he exited Iran illegally.

6.               The respondent does not accept the appellant's account to be of adverse interest from the Iranian authorities because the appellant's account is lacking in specificity and detail concerning his father's involvement with the KDPI, and it is not considered plausible that the appellant is of adverse interest to the Iranian authorities.

7.               The respondent does not accept that the appellant would be at risk on the basis of his Kurdish ethnicity or illegal exit.

8.               Since arriving in the UK the appellant has attended demonstrations against the Iranian government, evidence of which appears on his Facebook account. The respondent provided a review of the appellant's case on 4 May 2024. In the review, the respondent considered that the nature of the appellant's sur place activities is unclear and that this aspect of the appellant's account would need to be tested under cross examination. The respondent does not accept that the appellant has a political profile that has caught the adverse attention of the authorities.

Appeal to the First tier Tribunal

9.               The appellant appealed against the refusal of his protection and human rights claim and the appeal came before the judge via CVP on 30 May 2024. The appellant was represented by Mr Scott of Counsel and the respondent was represented by Mr Davis, a Home Office Presenting Officer. The appellant gave oral evidence through a Kurdish Sorani interpreter.

10.           In his decision the judge did not accept that the appellant had established on the lower standard that he was of any interest to the Iranian authorities. At paragraph 20 of the determination the judge explained that he did not accept that the appellant had established on the lower standard of proof that he was of any interest to the Iranian authorities and at risk for the following reasons:

"(a) The appellant has provided varying descriptions of his father's involvement with the KDPI. At times, he mentioned his father was a supporter and other times, he elaborated that his father was involved in producing clothes for KDPI fighters and distributing leaflets. In one instance, he mentioned his father worked for KDPI for over a year, while in another, the involvement seemed more casual and less structured.

(b) The appellant's accounts of his own activities and the level of direct threats received from Iranian authorities have varied. While initially claiming significant involvement in distributing political leaflets, under cross-examination, he admitted to only distributing them a few times a month and lacked specific details about their content.

(c) On his own admission the appellant did personally not receive any threats from the Iranian authorities whilst he was in Iran. His fear is largely based on third-party information from his mother and assumptions.

(d) The appellant claimed in his evidence that he distributed leaflets for the KDPI for a few months. He claimed that his father worked for KDPI for almost a year. Under cross-examination, he said that both he and his father were aware of how powerful the Ettela'at were and in his own words, if he returned to Iran, he believed that he would be found by the Ettela'at in a short time. When he was asked to be more specific, he thought that he would come to their attention within a few hours or between one or two days. If that was the case, I cannot see how he would be able to deliver leaflets for a few months without being discovered by the Ettela'at. Also, he was unable to explain and how his father was able to work for the KDPI for almost a year without being discovered by the Ettela'at.

(e) The appellant has been unable to provide any proof or details of the leaflets he claimed to have distributed".

11.           In respect of the appellant's sur place activities the judge considered that the appellant's attendance at eight demonstrations was low level activity and was not satisfied that the appellant's beliefs were genuinely held. The judge could see no reason why the appellant could not delete his Facebook posts.

12.           The judge considered that the appellant could be reunited with his family members on return.

13.           The judge concluded that the appellant did not have a well-founded fear of persecution for a Convention reason and he could safely return to Iran. He therefore dismissed the appellant's appeal.

Appeal to the Upper Tribunal

14.           The appellant sought permission to appeal to the Upper Tribunal on the following grounds.

a.                   Ground 1: The judge made incorrect findings of fact.

b.                   Ground 2: The judge failed to consider the evidence of the appellant's genuinely held beliefs.

c.                    Ground 3: The judge failed to properly apply HB (Kurds) and that even low level political activity could result in persecution.

d.                  Ground 4: The judge erred in finding the appellant was able to contact his family.

15.           First-tier Tribunal Judge Saffer refused permission to appeal on 10 July 2024. The appellant applied for permission to appeal to the Upper Tribunal and Upper Tribunal Judge Gill granted the appellant permission to appeal. Upper Tribunal Judge Gill found that it was arguable that the judge did not consider the appellant's explanation in his consideration of the credibility of the appellant's evidence.

16.           The respondent did not provide a response under rule 24 of the Upper Tribunal's Procedure Rules

17.           At the hearing I heard submissions from Mr Scott on behalf of ZM and Ms Isherwood on behalf of the Secretary of State. I reserved my decision which I now give.

Discussion

18.           Having considered the arguments made by the parties I am satisfied that the judge made a material error of law in his approach to the assessment of the appellant's credibility.

19.           I am satisfied that the judge failed to consider that the appellant was a child when the events he claims happened in Iran and when he initially gave his account in the UK. The Joint Presidential Guidance Note No 2 of 2010 Child vulnerable adult and sensitive appellant guidance reminds judges to be aware that "children often do not provide as much detail as adults in recalling experiences." The judge materially erred by failing to consider the appellant's young age at the time before finding that the appellant was unable to give a clear account of his father's role with the KDPI.

20.           I am also satisfied that the judge failed to have regard to relevant matters and clearly relevant aspects of the appellant's evidence. The judge failed to have regard to the appellant's account in his interview of his involvement with the KDPI and why his father worked with the KDPI. The information he was able to provide in both his witness statement and the interview are commensurate with a child living in Iran. The judge also failed to consider the appellant's evidence as to how he managed to avoid the Ettela'at whilst distributing leaflets. It was the appellant's account that he distributed leaflets whilst it was dark.

21.           Finally, I am satisfied that although the judge referred to the relevant country guidance cases, the judge materially erred in his approach to the nature of investigation on return to Iran. The judge did not adequately address the potential risk to the appellant arising from information which might be elicited either during the emergency travel document process or on return in Iran in the circumstances where it was accepted that the appellant had left Iran illegally and was of Kurdish ethnicity.

22.           For those reasons I find that the judge materially erred in law and I set the decision aside.

23.           I have considered whether to retain the matter for remaking in the Upper Tribunal, in line with the general principle set out in statement 7 of the Senior President's Practice Statement and AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 46 (IAC), and taking into account the representatives submissions. The hearing will need to be heard afresh. In all the circumstances, I accept that the proper course is to remit rather than to remake the decision on the appeal in this Tribunal.

 

Notice of Decision

24.           The First-tier Tribunal decision involved the making of an error of law.

 

25.           I set aside the decision of the First-tier Tribunal and remit the case to the First-tier Tribunal to be heard by a different judge, with no findings of fact preserved.

 

G. Loughran

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

29 November 2024