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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-004601
	First-tier Tribunal No: PA/00122/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On the 18 February 2025

 

Before

 

UPPER TRIBUNAL JUDGE RINTOUL

DEPUTY UPPER TIRUBNAL JUDGE BEACH

 

Between

 

ARA

(aNONYMITY ORDER MADE)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

 

the Appellant: Mr Wilson, Solicitor from Refugee & Migrant Centre

For the Respondent: Mr Thompson, Senior Home Office Presenting Officer

 

Heard at Field House on 31 ^st January 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.              The appellant appeals with permission against a decision of First-tier Tribunal Judge Freer promulgated on 2 ^nd August 2024, dismissing his appeal against a decision of the Secretary of State made on 28 ^th April 2023 to refuse the appellant's protection and human rights claim.

2.              The appellant's claim for asylum was based on his claimed fear of the Iranian authorities as a result of becoming involved in distributing KDPI leaflets. The appellant states that his friend B agreed to teach the appellant how to ride his motorcycle in exchange for distributing the leaflets. He states that he subsequently received a telephone call from B's sister informing him that B had been arrested and that the authorities were now looking for the appellant. The appellant's claim is that the authorities raided his home and found the documents in his bag. He states that, following this, his uncle made arrangements for the appellant to leave Iran.

3.              The Secretary of State accepted that the appellant was an Iranian national of Kurdish ethnicity who left Iran illegally. She also accepted that the reason put forward by the appellant for claiming asylum was a reason that was covered by the Refugee Convention. She did not accept that the appellant's account of his reasons for claiming asylum was a credible account. The Secretary of State's position was that there were inconsistencies in the appellant's account and that it was based on speculation. She further stated that the appellant's claim was not consistent with the background evidence regarding Iran with regard to the family members of those involved in opposition activities. The Secretary of State did not accept that the appellant would be at risk on return to Iran as a result of his Kurdish ethnicity or his illegal exit from Iran.

4.              The judge heard evidence from the appellant. The judge found that the appellant had not given a credible or consistent account and that he had not shown that he would be at risk of persecution or serious harm if he were returned to Iran. The judge found that the appellant would not face a risk simply as a result of his Kurdish ethnicity and his illegal exit from Iran. The judge also dismissed the appeal under Article 8.

5.              The appellant sought permission to appeal on the grounds that the judge had erred:

(i)             in placing too much weight on the plausibility of the appellant's account

(ii)          in his requirement for corroboration of the appellant's account

6.              On 13 ^th November 2024, Upper Tribunal Judge Hirst granted permission to appeal.

7.              We heard submissions from both representatives. Mr Wilson submitted that there were two issues which were interrelated. He submitted that the Judge erred in his over-reliance on inherent probability in the plausibility analysis which the judge made. He further submitted that the findings were primarily based on the judge's assessment of what he believed the appellant would do and effectively found that he did not think the appellant would have taken the risk of distributing the leaflets. Mr Wilson said that the Judge's findings under the heading 'pure consistency issues' were not issues of consistency but rather issues where the judge believed that the appellant would not have acted in a particular way. Mr Wilson further submitted that the judge had placed an undue emphasis on the need for corroboration, in particular given that the appellant's account had always been that he had no contact with his family and so had no means of obtaining corroboration. He submitted that the judge's erroneous requirement for corroboration was highlighted where he stated [77-78] that he would have allowed the appeal had the corroborative evidence been provided.

8.              Mr Thompson referred to the initial refusal of permission to appeal by Judge Moon of the First-tier Tribunal and relied upon the reasons contained within that. He submitted that the judge had provided numerous reasons for his conclusions and was clearly aware of the need to exercise caution with respect to requiring corroboration. Mr Thompson submitted that the judge's assertion for corroboration ran alongside the judge's understanding that there was a need to have awareness of the Immigration Rules. He further submitted that whilst the judge quoted paragraph 339L and stated specifically that corroborative evidence was required, the finding that a lack of corroborative evidence undermined the appellant's account was a decision which was open to the judge. Mr Thompson submitted that the decision was a detailed and lengthy decision.

9.              Mr Wilson did not have any further submissions he wished to make in response.

Discussion

10.          We bear in mind that an appellate tribunal should be wary of setting aside a decision by a lower Tribunal. In doing so we apply what was held in in Ullah v SSHD [2024] EWCA Civ 201 at [26]: 

11.          We further bear in mind what was said in Volpi v Volpi [2022] EWCA Civ 464 at [2] and what was held in HA (Iraq) [2022] UKSC 22 at [72]. 

12.          The judge found that the appellant had not shown that he was at risk of persecution or of serious harm on return to Iran. There was a marked emphasis on the plausibility of the appellant's account despite reference being made by the judge to MAH (Egypt) v SSHD [2023] EWCA Civ 216 and ASO (Iraq) v SSHD [2023] EWCA Civ 1282; both of which confirm that a lack of corroboration is not necessarily fatal to an appellant's credibility and that caution should be exercised when expecting corroboration.

13.          Throughout the decision, the judge makes reference to how he believes the appellant would have acted in certain circumstances. At [47] he finds that the appellant would not have distributed the leaflets because he was not political and because it was dangerous but he gives no real consideration to the appellant's account of the reasons why he agreed to distribute the leaflets. There are also assumptions made regarding the appellant's failure to request a motorbike from his father with the judge finding [50] that the appellant's father could have sold a cow to buy a motorbike and [51] that the appellant's decision not to approach his father was disrespectful and not in accordance with the appellant's patriarchal culture. There are a number of other examples, throughout the decision, of the judge making assumptions about how the appellant would have acted on the basis of little or no evidence. As stated in MAH, a tribunal of fact should be cautious before finding an account to be inherently incredible on the basis of plausibility as such views are likely to be influenced by the tribunal's own background and the customs and ways of its own society. The judge has placed considerable emphasis on the plausibility of the appellant's account. He was wrong to do so and we find that this adversely affected his assessment of the credibility of the appellant.

14.          There is also a considerable emphasis on a need for corroboration of the account. The judge finds that the appellant's failure to provide an arrest warrant undermines his credibility [64] and that his failure to provide evidence of what had happened to B also undermines his credibility [66]. Whilst a failure to provide corroborative evidence can factor into an overall assessment, it is a not a requirement for appellants to provide corroboration of all of the aspects of their account, particularly where it is unclear how that corroboration could have been obtained. The judge has expected the appellant to provide corroboration of the core aspects of his account and has criticised the appellant for not doing so without having due regard to the appellant's account that he was not in contact with his family and without giving the appellant an opportunity to answer the criticism regarding the lack of corroborative evidence regarding what happened to B. The respondent had not challenged the appellant's account that he had no contact with his family in Iran but the judge specifically found in his decision that it was not credible that the appellant did not have any contact with his family in Iran [70]. There is no indication that the appellant was given an opportunity to answer that criticism. There is also no clear reasoning as to how the appellant was expected to be able to obtain corroborative evidence of what had happened to B in Iran or what it could have been.

15.          We note that a number of the findings regarding adverse credibility within the decision related to matters which were not put to the appellant at the hearing. This is recognised by the judge [44] who, notwithstanding finding that the failure to describe where or how far away he distributed the leaflets had not been put to the appellant, still found this to be an adverse point against the credibility of the appellant. This is further illustrated at [54] where the judge considers the dangerousness of riding a motorcycle and makes reference to there being no reference to buying protective helmets. To do so was in breach of procedural fairness.

16.          Taking all of these factors into account, we are satisfied that the judge's assessment of credibility with its emphasis on plausibility and overemphasis on the need for corroborative evidence and tainted by procedural unfairness, constitutes a material error of law. We are further satisfied that it would be in the interests of justice to remit this appeal to the First-tier Tribunal to be heard again afresh by a judge other than Judge Freer.

Notice of Decision

(1)           The decision of the First-tier Tribunal involved the making of an error of law and we set it aside.

(2)           We remit the appeal to the First-tier Tribunal to be heard by a judge other than Judge Freer. For the avoidance of doubt, none of the findings of fact are preserved.

(3)           A Kurdish Sorani interpreter is required.

 

Signed F Beach Date: 11 ^th February 2025

Deputy Judge of the Upper Tribunal