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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-003733
	First-tier Tribunal No: PA/60105/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

27 ^th of February 2025

 

Before

 

UPPER TRIBUNAL JUDGE HANSON

DEPUTY UPPER TRIBUNAL JUDGE WILLIAMS

 

Between

 

BM

(ANONYMITY ORDER MADE)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr S Hingora of Counsel, instructed by Lei Dat and Baig Solicitors

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

 

Heard at Manchester Civil Justice Centre on 10 ^th 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 members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court .

DECISION AND REASONS

Background

1.        This is our remaking of the decision of the First-tier Tribunal which was set aside in part by Upper Tribunal Judge Keith and Deputy Upper Tribunal Judge Kudhail ('the UT') in a decision promulgated on 11 ^th November 2024.

2.        The Appellant is a national of Iraq whose protection claim was made to the Respondent on 15 ^th March 2022. The claim was advanced on the basis that the Appellant feared the Popular Mobilisation Forces ('the PMF'). His claim was that whilst he was travelling in Kirkuk, he was stopped at a checkpoint and asked for ID by the PMF. The Appellant was without his ID and was stopped for further questioning.

3.        Upon seeing a Kurdish flag in the windscreen of the Appellant's car, the PMF began to swear at the Appellant. He swore back and insulted a Shia Imam. The Appellant was then physically assaulted by the PMF until he pretended to be unconscious. The PMF members became distracted and the Appellant used the distraction to escape. He was shot at whilst running away, he hid nearby until he was able to leave the area. He subsequently left Iraq on 25 ^th July 2021.

4.        The Respondent refused the claim on 15 ^th March 2022. The Respondent, whilst accepting the Appellant's identity, Iraqi nationality and Kurdish ethnicity, did not accept that he had come to the adverse attention of the PMF because of inconsistencies within the account. The Respondent considered the credibility of the Appellant was damaged because of his failure to claim asylum in the safe countries through which he passed en route to the United Kingdom.

5.        It was accepted that were the account made out, the Appellant could not relocate internally, nor would there be sufficient protection available to him in Iraq. The Respondent considered the Appellant was not entitled to humanitarian protection. Article 8 was also considered briefly and it was not considered the Appellant was entitled to leave on this basis.

The First-tier Tribunal Decision

6.        Following a hearing where the Judge gave evidence with the assistance of a Kurdish Sorani interpreter, the Judge dismissed the appeal. Her reasons were that she did not accept the Appellant's account of events which occurred in Iraq as credible, largely on the basis of inconsistencies between the Appellant's screening interview, asylum questionnaire and substantive interview. The Judge also considered the Appellant's failure to claim asylum in the safe countries through which he passed damaged his credibility. She concluded there was no risk of harm to the Appellant upon return to Iraq.

7.        The Judge considered the Appellant's sur place political activity and whilst she found the Appellant had attended demonstrations and posted on Facebook, he did so in order to bolster his protection claim, and not as a result of genuinely held political belief. The Judge found the Appellant was not of interest to the Iraqi authorities, and that he could close his Facebook account. The Judge also concluded the Appellant had his CSID and could be provided with it again by his family in Iraq. The appeal was accordingly dismissed.

The Error of Law Hearing

8.        The Appellant appealed to the Upper Tribunal, having been granted permission by Upper Tribunal Judge Loughran. At the Error of Law hearing, the UT found that the Judge had erred in the reliance placed on the lack of detail in the Appellant's screening interview as a matter undermining his credibility to the extent she did. It was further found the Judge had confused the screening and substantive interviews.

9.        As a result of this error, the Judge's findings in relation to the Appellant's account of what took place in Iraq (paragraphs 12-15) were set aside. The findings pertaining to the Appellant's sur place activity were not found to be infected by error and were accordingly preserved. It is thus the issue of the credibility of the Appellant's account of events which took place in Iraq which comes before us for determination.

The Resumed Hearing

10.    The resumed hearing was unfortunately beset by a number of procedural issues. First, the Appellant's solicitors had filed and served a bundle pertaining to another appeal for these proceedings. This issue was raised by the Judge hearing the other appeal on the same day as the hearing before us. The explanation proffered by Mr Hingora, having taken instructions, was that this was an error on the part of a junior employee of the firm. An unreserved apology was tendered to the Tribunal for the error.

11.    Had this been the extent of the procedural error, the hearing could have proceeded without difficulty. Unfortunately, there were further issues which resulted a significant delay in starting the hearing. In the Error of Law decision issued on 4 ^th December 2024, the UT directed 'the appellant shall inform the Tribunal promptly if he requires an interpreter'. This direction was not complied with, and the Appellant attended the hearing without a request for an interpreter having been made.

12.    Mr Tan indicated that he intended to cross-examine the Appellant and so an interpreter was required. This further non-compliance with a clear direction is unacceptable. The explanation given is that the following the Error of Law decision, a different fee earner had conduct of the file and had assumed that having been provided with an interpreter in the FtT, an interpreter would automatically be provided in the proceedings before the Upper Tribunal. This is a misunderstanding of the separation between the Tribunals and is no real explanation for how the explicit direction of the UT was ignored. This is a supervisory failure on the part of the solicitors' firm.

13.    There had further been a supplementary bundle containing a witness statement of the Appellant which had inexplicably not been served on the Respondent. This was also described by Mr Hingora as an error which should have been noticed when the supplementary bundle had been uploaded to the CE-File system. Mr Hingora helpfully provided Mr Tan with a copy of the supplementary bundle.

14.    After resolution of the preliminary issues, we proceeded to hearing the evidence. An interpreter, Mr Ali was able to attend the hearing via the Cloud Video Platform. There were no issues with the connection or communication between the Appellant and the interpreter. The Appellant was cross-examined by Mr Tan. We heard submissions from both advocates, and at the end of the hearing we reserved our decision which we now give with reasons.

The Respondent's Submissions

15.    For the Respondent, Mr Tan submitted there was a failure of the Appellant to mention within his screening interview elements which he now relied upon. Whilst it was accepted the nature of the screening interview requires brevity, the Appellant had been asked a direct and specific question within the screening interview about whether he had ever been accused of an offence. He answered 'no' to that question but now said he had been accused of such an offence. The only issues detailed in his screening interview was that he had been threatened and that his family had political problems.

16.    Those political problems had been explained within the substantive interview as the general issues between Kurds and Arabs. The Appellant did not mention being shot at, being accused of crimes or being wanted for arrest or detention. That was said to be more than an omission. The only amendment made to the screening interview was to that date at which he left Iraq, which was also inconsistent in any event.

17.    The Appellant was said to have provided inconsistent evidence about when he left Iraq, and when he had last been in contact with his family. The Appellant's completion of the asylum claim questionnaire had taken place with an interpreter, and no amendments had been made to what were now described as errors within the questionnaire. The finding that the Appellant's credibility was undermined because of his failure to claim asylum in safe countries was unchallenged. We were invited to conclude the Appellant's account was not credible and to dismiss the appeal.

The Appellant's Submissions

18.    For the Appellant, Mr Hingora relied on the skeleton argument which was provided to the First-tier Tribunal. As far as the omissions from the screening interview were concerned, reliance was placed on YL (Rely on SEF) China [2004] UKIAT 00145 and we were cautioned to avoid falling into the same error as the Judge did. We were reminded the screening interview took place relatively recently to the Appellant's arrival in the United Kingdom, and that the Appellant himself had said he was stressed during his interviews. The asylum claim questionnaire was completed without an interpreter and was therefore unreliable on that basis.

19.    The Appellant's account of what took place in Iraq was credible. There was nothing implausible about the Appellant being stopped and asked for documentation at a checkpoint. There was clearly tension between Kurds and Arabs in Kirkuk. The Appellant is Kurdish and his display of a Kurdish flag in his vehicle was a provocation which was met with violence from the PMF. We were taken to a number of paragraphs within the Respondent's CPIN (Iraq, Actors of protection, version 1.0, December 2020) which provides details of how the PMF behaved. Mr Hingora submitted this evidence supported the plausibility of the Appellant's account. We were invited to find the Appellant's evidence credible and allow the appeal.

The Law

20.    To succeed in an appeal on asylum grounds, an appellant must show a well-founded fear of persecution for a Convention reason (race, religion, nationality, membership of a particular social group, political opinion). The burden of proof rests on an appellant. The standard of proof is a reasonable degree of likelihood, often described as the 'lower standard'.

Analysis and Consideration

21.    In considering whether or not the Appellant's account of what happened to him in Iraq is credible, we observe first that there is nothing implausible per se in what the Appellant claims took place. We note there is objective evidence (referred to by Mr Hingora) which refers to the PMF being in control of a checkpoint and assaulting a Judge who travelled through the checkpoint (paragraph 7.3.4 of the CPIN). We further accept the Appellant driving a vehicle displaying a Kurdish flag could have the effect of provoking a violent or at the least a hostile reaction from the PMF. Whilst we accept the plausibility of the account, there are other features which tell against the credibility of the Appellant's evidence.

22.    We have considered the evidence given in the Appellant's screening interview. We have had regard to what is said in YL (China) and reminded ourselves that the screening interview is not the forum for an exhaustive provision of detail in a protection claim. We also note the Appellant's interview took place two days after his arrival to the United Kingdom, and that there was likely to have been a level of stress and tiredness as a result.

23.    Although we have considered the factors relied on by the Appellant, we do not consider it credible that a person who had experienced a violent beating at the hands of a law enforcement agency would not have mentioned this encounter when asked specific questions about it in interview.

24.    In the screening interview, the Appellant was asked ' Have you ever, in any country, been accused of, or have committed an offence for which you have been, or could have been convicted? (including traffic offences).' The answer the Appellant gave was 'no'. The Appellant claims to have insulted a Shia Imam and that he would be arrested and detained for this upon return to Iraq. He is clearly of the view that his behaviour was something for which he could have been sent to prison (AIR 38), repeatedly referring to his 'crime' in the asylum claim questionnaire, yet he did not mention this in the screening interview. The explanation given in the Appellant's oral evidence before us was that the PMF are not an 'official organisation', this in itself is inconsistent with the Appellant's evidence that the PMF have the ability to arrest and detain him. This is a matter which undermines the credibility of the account.

25.    Whilst the brief nature of the screening interview is accepted, the Appellant was asked in that interview to 'explain all of the reasons why' he could not return to his home country. The answer provided by the Appellant, that 'I was threatening [ sic] and my family have political problems' does not disclose any of the circumstances the Appellant later describes. There is no mention in the screening interview of who the Appellant feared, and for what reasons. His failure to do so further undermines the credibility of the account.

26.    We were pointed to further discrepancies between the Appellant's statements of what happened at the checkpoint where he was stopped. In his first statement of January 2024, at paragraph 5, the Appellant states ' they swore at me, and I swore back, insulting an Imam. Then a member of the PMF started to beat me up'. In the statement provided in the supplementary bundle however, dated 6 ^th February 2025, the chronology presented by the Appellant is not the same. In that statement, the Appellant does not disclose swearing at the PMF first, but only after he was attacked by them and he had started to run away. The lack of clarity around the account was put to the Appellant in cross-examination, and he was unable to explain the inconsistency between the two statements, simply reiterating that he had spoken respectfully to the PMF only to then be attacked.

27.    Assessing all of the evidence before us in the round, and applying the lower standard of proof, we do not find the Appellant's evidence to be reliable. Whilst we accept there are elements of the evidence which are consistent with external information provided, the deficiencies we have identified lead to our finding that the Appellant was not attacked in the way he claims, nor is he of any adverse interest to the PMF.

Conclusion

28.    As we have not found there is any risk to the Appellant from the PMF, it follows that we do not find he would be at risk upon return to Iraq and he therefore does not succeed in his protection claim.

Notice of Decision

29.    The decision of the First-tier Tribunal having been set aside in part, we remake the decision, dismissing the Appellant's appeal.

Direction communicated to Mr Hingora at the hearing:

By 4pm on 21 ^st February 2025, a Senior Partner of Lei Dat and Baig Solicitors shall write to the Upper Tribunal at Field House to show cause as to why the firm should not be reported to the Solicitors Regulation Authority as a result of their failure to comply with the directions relating to the booking of an interpreter for this hearing, their failure to comply with the direction for the provision of a complete bundle within the time period specified by the directions, and the failure to serve the supplementary bundle on the Respondent.

 

 

CJ Williams

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

14 ^th February 2025