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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-005626
	First-tier Tribunal No: PA/00638/2024

 

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 14 ^th of March 2025

 

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE R THOMAS KC

 

 

Between

 

A.J.M

(ANONYMITY ORDER MADE)

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr C Holmes of counsel, instructed by TPC Legal Ltd

For the Respondent: Ms A Everett, Senior Home Office Presenting Officer

 

Heard at Field House on 6 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 an Iranian national of Kurdish ethnicity born in 2004. He appeals against the decision of FtTJ Shepherd dated 7 ^th October 2024 to dismiss his appeal.

The claim

2.              The Appellant's account is that he did not go to school but instead assisted his father as a shepherd/farmer and, in doing so, came to assist Peshmerga soldiers. This assistance brought him to the adverse attention of the Iranian authorities and required him to first go into hiding and to then flee Iran. He feared that on return he would be killed by the Iranian government.

3.              The Respondent considered a Statement of Evidence Form (SEF) dated 21 ^st May 2022, a witness statement dated 21 ^st May 2022, an undated Unaccompanied Child Welfare Form, an Asylum Interview Record (AIR) dated 2 ^nd December 2022 and further written representations from the Appellant's solicitors on 19 ^th December 2022.

 

4.              The Respondent refused the refugee and humanitarian protection claim in a letter dated 13 ^th January 2023. The Respondent accepted that the Appellant was of Kurdish ethnicity and that he was 16 years and 11 months old when he made his asylum application. However, the Respondent did not accept that he had faced adverse attention from the Iranian authorities as a result of assisting the Peshmerga; that conclusion was arrived at on the grounds the Appellant's account was not credible in that there were internal inconsistencies, it was lacking in specificity and sufficient detail, and it was not plausible.

The First-tier Tribunal Hearing

5.              The Appellant was, at least initially, treated as a vulnerable witness (paragraph 14) but the FtTJ went on to then find " I do not consider that it is appropriate to still record the Appellant as a vulnerable witness going forward without further evidence of vulnerability being adduced" (paragraph 54). Before the FtT was a Cognitive Functioning Report ('Cognitive Report') of Dr Rosalind Berry dated 16 ^th August 2024, the impact of which is central to this appeal.

6.              The Appellant gave oral evidence as to events in Iran and his flight. He also gave evidence as to his attendance at demonstrations in the UK at the Iranian consulate and his Facebook postings critical of the Iranian regime.

7.              Credibility was plainly at the heart of the appeal, as it had been in the reasons for refusal letter. The Appellant's representative made submissions on plausibility and credibility. His submissions relied upon the content of the Cognitive Report in seeking to explain some potential criticisms of the Appellant's evidence.

8.              In her Findings and Reasons, the FtTJ summarised the findings of the Cognitive Report [paragraphs 43-47] and her conclusions as to the weight to be attached to the report [paragraphs 48-54]. The FtTJ went on to consider the Appellant's account of events in Iran. She considered the " inconsistencies and vagueness" in his account (see e.g. paragraph 77) as well as looking at whether some aspects were in accordance with the objective evidence (see e.g. paragraph 80). She rejected his account and concluded that he did not have a subjective or well-founded fear of serious harm or persecution from anyone in Iran based on anything that happened there prior to his leaving the country.

 

9.              As to his sur place activities, the FtTJ considered the relevant authorities including XX (PJAK, sur place activities, Facebook) (CG) [2022] UKUT 23. She concluded (i) he was not genuine in his political commitment and could be expected to delete his account before return to Iran, and (ii) there is no evidence that he has already come to the attention of the Iranian authorities. It followed that she found " the Appellant does not have a profile that would put him at greater risk than any other Kurd returning to Iran as a failed asylum seeker" (at paragraph 103) and that in itself was insufficient to put him at the requisite risk.

 

Grounds of Appeal

10.          The Grounds of Appeal argue that the FtTJ " has failed in this instance to properly weigh and consider the Registered Forensic Psychologist's report and its impact on the ability of the appellant to understand questions and answer them. As a consequence the Judge's assessment of the appellant's credibility is manifestly flawed". The Grounds raised a concern that the FtTJ appeared unaware as to why the Report had been commissioned when that information had been provided to the FtT at an earlier hearing and was the subject of a direction from a previous Judge. The second ground - and the key criticism - was that the FtTJ had chosen to give little weight to the conclusions of an expert because of her view of the appellant's demeanour, and this had a fatal impact on the credibility assessment that was determinative.

 

11.          Permission to appeal was granted by the FtT on 25 ^th November 2024.

 

The competing submissions at the appeal hearing

12.          Mr Holmes first ground of appeal was directed at the FtTJ twice commenting that she was not aware of why the Cognitive Report was commissioned (at paragraphs 45 and 49). He pointed out that the FtTJ should have been aware of this given it had been addressed in directions from a judge on a previous occasion. Mr Holmes was unable to explain why the Appellant's representative at the hearing was unable to assist the FtTJ (see paragraph 32). Given that the FtTJ accepted the expert's qualifications, and given she correctly identified the report's main conclusions, the lack of an explanation for why the report was obtained (in fact, because of concerns raised by those responsible for his care) did not amount to a material error. The real issue was the FtTJ's treatment of the expert opinion expressed in that report.

 

13.          On this second ground, Mr Holmes accepted that the FtTJ correctly summarised (at paragraphs 46-7) the main conclusions and recommendations of the Cognitive Report. He noted in particular the conclusion in the Report that:

 

I consider that his cognitive limitations are such that Mr Mohammedi will have significantly more difficulties that the vast majority of his peers in understand and responding to requests made of him, as well as retaining information and he will require significantly longer to digest information. As such, he will require the assistance of professionals to maximise his understanding.

 

14.          He also placed emphasis on the recommendations summarised by the FtTJ as follows:

 

47. In section 9, the author comments that:

(i) the Appellant will have more difficulty expressing his thoughts and feelings in an in-depth and articulate way.

(ii) he will require significantly longer to complete tasks and is likely to be slower to answer questions.

(iii) professionals working with him will be required to use repetition and patience in order to maximise his understanding.

 

15.          Mr Holmes submitted that instead of considering the expert evidence in the light of all the evidence (a permissible approach), the FtTJ had sought to undermine the expert findings by deploying her own conclusions as to the Appellant's demeanour (an impermissible approach). He pointed to paragraph 48, with an emphasis on the underlined parts of that paragraph:

The Appellant's presentation at the hearing was at odds with the Cognitive report . He maintained good eye contact, understood most of the questions asked of him first time round and did not hesitate in providing answers. ... Whilst he may not have expressed his answers in an in-depth way, they were in the range of articulacy of most Appellants speaking through an interpreter that come before me. Had I not had the Cognitive Report in front of me, I would have had no concerns at all about the Appellant's ability to participate in the hearing and understand and respond to the questions being asked of him.

 

16.          Mr Holmes also submitted that the FtTJ had (at paragraph 53) endorsed verbatim a broad stereotype made by the Respondent in its review and improperly used this to justify placing little weight on the expert report:

 

In many ways the report portrays the average Iranian person involved in subsistence farming with limited or no education, which does not mean such a person would be unaware of their societal surroundings or not be experienced and worldly wise in the essential matters of day to day life, or able to accurately report and remember events that directly affected him and his way of life.

 

17.          Reliance was placed on SS (Sri Lanka) [2018] EWCA Civ 1391 at paragraph 42:

 

No doubt it is impossible, and perhaps undesirable, to ignore altogether the impression created by the demeanour of a witness giving evidence. But to attach any significant weight to such impressions in assessing credibility risks making judgments which at best have no rational basis and at worst reflect conscious or unconscious biases and prejudices.

 

18.          Dr Berry had quite properly recognised the limitations of utilising cognitive tools normed on Western populations and accepted that it would be difficult to confirm whether the Appellant would meet the criteria for an intellectual / learning disability (APA,2013). She had plainly taken this into account when arriving at the conclusion and recommendations set out above. Despite this, it was submitted that the FtTJ (at paragraph 50) used her own (inexpert) opinions as to the methodology employed in arriving at her conclusion that the expert report should be given little weight:

 

I have not had sight of the paperwork that formed the assessment he undertook but I note that some of it involved visual symbols and patterns, mental mathematical skills and solving non-verbal problems. Given that the Appellant says he was an illiterate shepherd working in rural Iran, it appears that these things would have been entirely new to him such that it is unsurprising he may have taken some considerable time to process and response [sic] to them.

 

19.          On behalf of the Respondent, Ms Everett accepted some of the criticisms made by Mr Holmes and acknowledged that the language used by the FtTJ on this issue was "unfortunate" and that the comments about demeanour were "particularly unhelpful". She also noted that some of the reasoning employed by the Respondent in its review (and adopted by the FtTJ) was in danger of relying on cultural stereotypes. However, she said that there was no material error of law because the determination was otherwise full and carefully reasoned.

Discussion and reasons

20.          Mr Holmes accepted that the FtTJ was entitled to weigh the extent to which the conclusions in the expert report explained any inconsistencies or lack of detail in the Appellant's account, and that the expert's conclusions and recommendations were only part of the evidence, which needed to be considered in the round. He accepted that a FtTJ would be entitled, having conducted that exercise, to find that despite limitations identified in an expert medical report, a witness' credibility was undermined by inconsistency and/or lack of detail. This is trite law, but if authority is needed for the proposition, see the judgment of the Court of Appeal in Mibanga [2005] EWCA Civ 367 (which was approved by Underhill LJ in MN v Secretary of State for the Home Department  [2020] EWCA Civ 1746 at para 121) :

 

24..  It seems to me to be axiomatic that a fact-finder must not reach his or her conclusion before surveying all the evidence relevant thereto. Just as, if I may take a banal if alliterative example, one cannot make a cake with only one ingredient, so also frequently one cannot make a case, in the sense of establishing its truth, otherwise than by combination of a number of pieces of evidence. Mr Tam, on behalf of the Secretary of State, argues that decisions as to the credibility of an account are to be taken by the judicial fact-finder and that, in their reports, experts, whether in relation to medical matters or in relation to in-country circumstances, cannot usurp the fact-finder's function in assessing credibility. I agree. What, however, they can offer, is a factual context in which it may be necessary for the fact-finder to survey the allegations placed before him; and such context may prove a crucial aid to the decision whether or not to accept the truth of them.

 

21.          Mr Holmes however made the point that this is not the approach adopted by the FtTJ; that even before turning to her examination of the evidence, she had reached her conclusion that little weight should be attached to the Cognitive Report (see paragraph 54). The FtTJ went even further and decided (again before turning to the examination of the evidence) that it would no longer be appropriate to treat the Appellant as a vulnerable witness. Given the conclusions and recommendations in the expert report, I agree that it is difficult to see how the FtTJ arrived at that position without having, in effect, chosen to prefer her own views (based at least partly on demeanour, cultural assumption, and an inexpert view of the methodology employed by Dr Berry) over the conclusions of the expert. That this was the order of events is supported by the reference in paragraph 77 (when the other evidence is being considered) to having already found the expert report is of little assistance in explaining inconsistencies or vagueness. Despite the reference in paragraph 54 to having considered all the evidence in the round, I accept Mr Holmes' submissions this is not what took place.

 

22.          Ms Everett is right to note that the FtTJ gave a full and careful consideration of the evidence of events that were said to have taken place in Iran. I have had to analyse carefully whether any error in approach on the expert evidence was material: The thrust of the FtTJ's adverse credibility finding was based firstly on a lack of detail in the account ("unclear" / "minimal" / "vague") rather than inconsistency, and secondly on the extent to which the account was at odds with the available objective evidence. I have considered whether it could be said that the objective evidence going to plausibility 'trumps' any errors in the assessment of the Appellant's evidence. However, that is not a complete answer, and the lack of detail in parts of his account is key to the conclusions arrived at by the FtTJ. This is something that the FtTJ should have weighed alongside the expert medical evidence. Certainly, I cannot conclude that a rational tribunal would have been bound to dismiss the appeal despite those errors ( ASO (Iraq) [2023] EWCA Civ 1282). It follows that the errors identified above do amount to a material error of law.

 

23.          I have considered whether the findings on the Applicant's sur place activities should be preserved, but have concluded that given the expert medical evidence is relevant to the whole of the Appellant's evidence, this case should be remitted with no preserved credibility 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

 

26 ^th February 2025