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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI- 2024-002847
	First-tier Tribunal No: PA/55753/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On the 12 March 2025

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE DOYLE

 

Between

 

MA

(ANONYMITY ORDER MADE)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr A Jospeh, counsel, instructed by Shawstone Associates

For the Respondent: Mr A McVeety, Senior Home Office Presenting Officer

 

Heard at Field House on 3 March 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 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. I make an anonymity direction because this appeal arises from the appellant's protection claim.

2. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Khan, promulgated on 18/04/2024, which dismissed the Appellant's appeal.

Background

3. The Appellant is a national of Egypt who was born on 31/08/1993. On 30/04/2021 he made an application for international protection on the basis of his ethnicity and membership of a particular social group. The respondent refused his application on 14/08/2023.

The Judge's Decision

4. The Appellant appealed to the First-tier Tribunal. On 18/04/2024, First-tier Tribunal Judge Khan ("the Judge") dismissed the appeal on all grounds.

5. The Appellant lodged grounds of appeal, and, on 01/08/2024, Upper Tribunal Judge Sheridan granted permission to appeal. He said

The Judge characterised the appellant's evidence as "inconsistent, incoherent and so implausible as to be incapable of belief". This phrase is repeated multiple times. Although the Judge identified, and explained why he found there to be, inconsistencies in the appellant's account; it is arguable that he has not adequately explained why he found the account to be incoherent and implausible.

The Hearing

6. For the appellant, Mr Jospeh moved the grounds of appeal. He adopted the terms of the grounds of appeal dated 18 June 2024 and said that his overarching submission is that the Judge made an inadequate or unreasonable assessment of the evidence and relied on the repetition of one sweeping phrase. The Judge repeatedly described the appellant's evidence as " inconsistent, incoherent and so implausible as to be incapable of belief".

7. Mr Joseph told me that the Judge failed to identify what she found to be incoherent, nor did she specify which evidence was so implausible as to be incapable of belief.

8. Mr Joseph took me to [18] to [21] of the decision and there (he said) the Judge clearly identifies what she described as a minor inconsistency in the appellant's evidence about establishing a relationship with a teenage girl in Egypt. He complained that the Judge then says that the appellant's account is vague and lacking in detail, before falling back on one sweeping statement about incoherence and implausibility. Mr Joseph said that the Judge does not analyse the evidence.

9. Mr Joseph said that between [22] and [45] the Judge appears to assess the evidence of an assault on the appellant by the uncle of his girlfriend. He said that that assessment is fundamentally flawed and that the Judge's findings, there, are neither reasonable nor fair. He took me to the written sources of the appellants evidence and told me that those strands of evidence were consistent and detailed - yet elided by the Judge.

10. Mr Joseph said the Judge failed to engage sufficiently with detailed evidence and although the Judge complains of inconsistency, lack of detail, incoherence, and implausibility, the Judge does not say why.

11. Mr Joseph asked me to allow the appeal, set the decision aside, and remit this case to the First-tier Tribunal.

12. For the respondent Mr McVeety candidly admitted that he had some sympathy with the argument advanced by Mr Joseph and conceded that he was uncomfortable with the Judge's reliance on the expression " inconsistent, incoherent and so implausible as to be incapable of belief".

13. After speaking about the background to the case, he took me to [20] of the decision and said that the Judge was entitled to find that the appellant was vague about the establishment of his relationship with his teenage girlfriend.

14. Mr McVeety told me that the Judge identified an inconsistency in the evidence, and the Judge identified areas where some of the evidence was vague, but he conceded that the Judge does not identify incoherent evidence even though she says four times that the evidence is incoherent, and the Judge does not identify implausible evidence even though she says four times that the evidence is implausible.

15. Mr McVeety conceded that it was not easy to defend the decision and oppose the appeal.

Analysis

16. At [16] of the decision the Judge summarises the reasoning that is to come in her decision when she says for the first time that she finds the appellant's account "inconsistent, incoherent and so implausible as to be incapable of belief"

17. Between [18] and [21] of the decision, the Judge deals with the appellant's claimed relationship and his fear of honour crime. At [20] she comments on the lack of detail in the appellant's account and at [21] she says that the appellant gives inconsistent evidence. The Judge finishes [21] by saying, for the second time, that the evidence is " inconsistent, incoherent and so implausible as to be incapable of belief".

18. Between [22] and [25] of the decision, the Judge deals with evidence of an assault in 2018. At [25] the Judge describes the evidence as vague, limited, and inconsistent. At [25] the Judge finds that the evidence is vague and incredible.

19. At [26] the Judge says that she finds part of the evidence of the appellants claimed visit to his girlfriend's house to be implausible, but she does not properly explain why. At [28] the Judge starts the first four sentences by declaring that she does not accept parts of the appellant's evidence. The Judge does not properly explain why she is unable to accept that evidence. She concludes [28] by declaring (for the third time) that she finds the appellant to be " inconsistent, incoherent and so implausible as to be incapable of belief"

20. Between [29] and [32] the Judge rejects parts of the appellant's evidence, once more boldly declaring " I do not accept" parts of the evidence without explaining why she is unable to accept the evidence. At [32]( for the fourth time) the Judge says that the appellant's account is " inconsistent, incoherent and so implausible as to be incapable of belief"

21. In MK (duty to give reasons) Pakistan [2013] UKUT 641 (IAC), it was held that (i) It was axiomatic that a determination disclosed clearly the reasons for a tribunal's decision. (ii) If a tribunal found oral evidence to be implausible, incredible or unreliable or a document to be worth no weight whatsoever, it was necessary to say so in the determination and for such findings to be supported by reasons. A bare statement that a witness was not believed or that a document was afforded no weight was unlikely to satisfy the requirement to give reasons.

22. In the decision the Judge identifies an inconsistency in the appellant's overall account but nowhere does the Judge explained why, four times, she finds that the appellant's account is incoherent. Throughout the decision although the word " implausible" is used, the implausibility is not explained. The Judge does not give reasons for finding parts of the appellants evidence to be implausible.

23. On a fair reading of the decision, it is not clear which parts of the evidence the Judge finds incoherent, nor which parts the evidence the Judge finds implausible. The objective reader of the decision is not told why parts of the appellants evidence are found to be either incoherent or implausible.

24. The repeated use of a sweeping, formulaic, statement was probably intended to reinforce the decision. It is the repeated use of a sweeping, formulaic, statement without explanation which creates a material error of law in the decision.

25. Because the decision is tainted by a material error of law it is set it aside. There is a material error of law in the fact-finding. There is a material error of law created by giving inadequate reasons. For that reason, none of the Judge's findings of fact can stand.

26. A fresh hearing in the First-tier Tribunal is necessary.

Remittal to First-Tier Tribunal

27. Under Part 3 paragraph 7.2(b) of the Upper Tribunal Practice Statement of the 25 ^th of September 2012 the case may be remitted to the First-tier Tribunal if the Upper Tribunal is satisfied that:

(a) the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party's case to be put to and considered by the First-tier Tribunal; or

(b) the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal.

28. The case should be remitted because a new fact-finding exercise is required. None of the findings of fact are to stand and a complete re hearing is necessary.

29. This case is remitted to the First-tier Tribunal sitting at Newport to be heard before any First-tier Judge other than Judge Khan. An Egyptian Arabic interpreter will be required.

Decision

The decision of the First-tier Tribunal errs materially in law.

The Judge's decision promulgated 18 April 2024 is set aside .

The appeal is remitted to the First-tier Tribunal to be determined of new.

 

 

S igned Paul Doyle Date 6 March 2025

Deputy Upper Tribunal Judge Doyle