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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-005230
	First-tier Tribunal No: PA/55678/2022

 

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 14 ^th of March 2025

 

 

Before

 

UPPER TRIBUNAL JUDGE R THOMAS KC

 

 

Between

 

BM

(ANONYMITY ORDER MADE)

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Ms H Masih of counsel, instructed by MH Solicitors LLP

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

 

Heard at Field House on 3 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

 

1.              The Appellant is a national of Iran of Kurdish ethnicity.

2.              He left Iran in September 2021, arrived in the UK in November 2021 and made a protection claim two days later. He was 16 years of age. He was interviewed in November 2022 and in the same month the Respondent refused his claim.

3.              By the time of the appeal hearing in July 2023, he was 18 years of age. The FtTJ treated him as a vulnerable witness. It was not in dispute at the hearing that (i) he was Iranian and of Kurdish ethnicity (ii) he was mistreated by his father and stepmother as claimed in his interview and statements, (iii) he exited Iran illegally, (iv) his credibility was not damaged by failing to claim asylum in a safe third country en route to the UK, (v) he was minor when arriving in the UK, and (vi) he had attended demonstrations outside the Iranian Embassy in London and posted material on Facebook that was critical of the regime.

4.              The key factual issues in dispute were (i) whether he had forced to work as a kolbar and that his activities had been brought to the attention of the Iranian authorities and (ii) whether his sur place activity was genuine and/or whether there was a risk it had come to the attention of the Iranian authorities.

5.              As to events in Iran, in making the decision to refuse the claim, the Respondent had rejected the Appellant's account of being involved in kolbar activity on the basis he had not provided sufficient detail. The FtTJ - having considered a recently served statement and the oral evidence - found the Appellant's account to have been forced to work as a kolbar to be credible (paragraph 26). However, the FtTJ was not satisfied that it was reasonably likely the Iranian authorities were aware of his activities. The approach to this finding is the subject of the appeal. As to his sur place activities, the FtTJ concluded that the Appellant did not hold genuine political beliefs and attended demonstrations "because he has been led to believe by others that it would bolster his claim for protection" (paragraph 36). Having adopted the approach in XX (PJAK - sur place activities - Facebook) Iran CG [2022] UKUT 23 (IAC) he concluded that the there was insufficient evidence of a risk that the Appellant had already come to the attention of the Iranian authorities, and that he could delete his account prior to removal. The FtTJ concluded also that there would not be very significant obstacles to the Appellant's reintegration in Iran.

6.              Leave to appeal was granted by Upper Tribunal Judge Kebede on 26 ^th November 2024 on the ground that there was arguable merit in the assertion made in the grounds of appeal that the FtTJ had overlooked material evidence given by the Appellant about his father having reported his activities to the Iranian authorities, and that had impacted the credibility assessment / assessment of risk on return. UTJ Kebede held there was less arguable merit in the criticisms of the findings on the sur place activities / obstacles on return, but did not exclude those challenges given there are to an extent dependent upon the judge's credibility findings.

Whether the kolbar activity had been brought to the attention of the authorities

7.              Having accepted the credibility of the Appellant's account that he had been forced to work as a kolbar, the FtTJ went on to find the Appellant's account was not credible insofar as it related to the authorities becoming aware of that activity (and thus him being at risk on return). At the heart of this adverse credibility finding was the Appellant's failure to have mentioned earlier that his father had threatened to report him to the authorities and then had done so.

8.              The FtTJ held:

28. The Appellant's evidence was that when he was still in Iraq, his father threatened to inform the authorities about his son being a kolbar, but that it was only after he left that his father did so. He said that he was told about this by his aunt in a telephone call when he was in Turkey. I note that he did not mention it in his first statement dated 16 February 2021. At paragraph 46, he states: ' I spoke to my aunt when I was in Turkey. She told me that my father had been to see her and that he had disowned me and did not want to see me again. He also threatened to kill me if he ever saw me again.'

 

29. I accept that the Appellant was not specifically asked about this in the interview which followed the statement and that he cannot be criticised for not thinking to volunteer additional information. However, notwithstanding his young age, this was a statement taken with the help of an interpreter and legal advice, and even though it was corrected in the letter from his solicitors two weeks later, I find it difficult to understand why the key fact of his father having reported him to the authorities was not mentioned at the time.

 

9.              The submission made on behalf of the Appellant is that, whilst it is right to say he was not asked specifically about this in interview, in fact he did think to volunteer additional information about his father threatening to report him to the authorities about the kolbar work: see the Response to Question 91 of the interview " he said whenever i see him I will kill him then i will also tell the authorities that he did kolbar work". The clarification in the letter from the Appellant's solicitors shortly after the interview is to the effect that the appellant's account was that (in what is plainly a reference to the call with his aunt when he was in Turkey) his father had already reported him:

 

"- Question 91 - our client has stated that the information is incorrect and should actually read that he told his aunt that he already told the authorities he is working as a kolbar."

10.          The FtTJ's reasoning on what was the key credibility finding - and one determinative of the finding on risk on return based on activity in Iran - was restricted to that in the two paragraphs rehearsed above. There is merit in the submission that it appears the FtTJ did fall into error by overlooking that in interview the Appellant volunteered additional information, at the very least addressing his account in oral evidence of the threats made by his father to report him to the authorities.

11.          As to whether this oversight was material, I have considered that a fact finder would have to weigh the impact of any inconsistency between the answer volunteered and how it was corrected shortly after the interview (the oral evidence being consistent with the correction). I have also considered the FtTJ's finding on whether the account was, in any event, implausible in that the father would not draw the attention of the authorities to his own role in illegal activities and this risk punishment himself. As to plausibility, the Appellant's account was not that his father was doing the work and so the father's actions are not inherently implausible and thus the credibility assessment remains relevant. And whilst the difference between the answer in interview and the correction would be relevant, I cannot conclude that a rational tribunal would have been bound to dismiss the appeal despite the error arising from the failure to take into account relevant material ( ASO (Iraq) [2023] EWCA Civ 1282).

12.          As to the other grounds of appeal, there is force in the observations made by UTJ Kebede when granting leave, in particular in respect of the sur place activities. Having allowed the appeal on the principal ground however, it is unnecessary to examine them further. Both parties agree that in the event of there being an error of law, the correct course is to remit the case. I do have to consider whether to preserve any findings. I am just persuaded that the impugned credibility finding might be relevant to those other aspects of the case and so will remit without any preserved findings.

Notice of Decision

 

The appeal is allowed and the case remitted to the First Tier Tribunal with no preserved findings of fact.

 

 

Richard Thomas KC

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

28 ^th February 2025