(Immigration and Asylum Chamber) Appeal Number: AA/09284/2012
THE IMMIGRATION ACTS
Heard at North Shields
On 20th August, 2013
On 4th October,2013
Upper Tribunal Judge Chalkley
(No anonymity order made)
For the Appellant: Mr Gayle, Assistant Solicitor with Elder Rahimi
For the Respondent: Mr J Kingham, Home Office Presenting Officer
DETERMINATION AND REASONS
1. The appellant is a female who was born on 29th March, 1986 and who is a citizen of Iran.
2. The appellant left Iran illegally in March or April, 2012, and travelled to Turkey where she remained for three months. She then travelled by air to Spain using a passport which was not hers. She remained there until 2nd September, 2012, when she then travelled to the United Kingdom.
3. On her arrival in the United Kingdom the appellant was unable to produce a passport or documentation to Immigration Officers and claimed asylum.
4. The respondent considered, but rejected, the appellant’s asylum claim and on 1st October, 2012 decided to issue directions for her removal. It is that decision which the appellant appealed to the First-tier Tribunal. Her appeal was heard on 25th January, 2013. In his determination, promulgated on 7th February, 2013, First-tier Tribunal Judge Mark-Bell dismissed her appeals on asylum grounds, on humanitarian protection grounds and on human rights grounds.
5. Lengthy grounds of appeal were submitted by the appellant’s solicitors. For completeness they are produced in the Appendix of this determination. First-tier Tribunal Judge Froom granted permission to appeal, because he thought it was arguable that the judge’s conclusions about plausibility, particularly at paragraphs 27 and 29, were not firmly based on evidence, but based instead on the judge’s own assumptions about what might happen in Iran.
6. Mr Gayle relied on his grounds and told me that the judge had erred in what he had said at paragraph 29 of the determination by suggesting that a Basij would not try to injure the appellant with scolding water. The judge made assumptions which he was not entitled to do.
7. At paragraph 23 the judge noted that during the course of the appellant’s asylum interview, she gave the date of an incident which led to her detention overnight as being 25/11/1389. In the Gregorian calendar this is said to be 14th February, 2011.
8. However, in a letter written by the appellant’s previous solicitors on 19th September, 2012, before the asylum interview was conducted with the appellant, they stated that, “her first incident with the authorities was in 1389, exact month/day unknown. She was arrested on this occasion”. Mr Gayle said that the judge was being critical because the appellant had actually given the correct date. The appellant had explained at the hearing that she had only had a short meeting with her representatives and she claimed that she had told them that the incident had taken place on 25 Bahman 1389 which, in the Gregorian calendar is 14th February, 2011. The judge was critical of the appellant and claimed that her representatives would not have ignored the precise date had she given them it. The judge found that the appellant’s credibility was undermined by contradictions made not by the appellant, but by her solicitors.
9. Mr Gayle suggested that the judge’s findings at 24 and 25 were insufficiently reasoned by the accounts given by the appellant were plausible. At paragraph 24 the judge found that he was not satisfied that the appellant was encouraged to attend two demonstrations in 2011 and 2012 by the influence of her fiancé. At 25 the judge refers to the appellant describing her father’s disapproval following her detention in 1389 of her relationship with the young man and her involvement in politics. The judge noted that the appellant’s evidence was that she decided to dedicate herself to her study until she qualified, but claimed that that was inconsistent with evidence that she would involve herself in political demonstrations in February 2011 and February 2012 when she was still trying to obtain a place on a lawyer’s postgraduate training course. He went on to say it was particularly inconsistent that a person with the appellant’s claimed profile would provoke members of the Basij at a second demonstration in 2012 when they had shown no interest in her group and were merely withdrawing cash from a bank ATM machine. The judge went on to find that he agreed with the respondent that the Basij would not act as the appellant’s evidence would have it. Mr Gayle suggested that the judge has simply assumed how they would react. There are insufficient reasons given by the judge for his findings. The judge misunderstood the evidence of the appellant’s second arrest at the end of paragraph 25. There was no question of the Basij waiting before they came after her in an alley. They did not wait at all.
10. At paragraph 27 of the determination the judge refers to the appellant’s account of events which took place at a new year’s celebration bonfire. He found that it was neither credible nor plausible that if there were a large number of Basij attending the bonfire they would not have been able to prevent the appellant and her mother from escaping after the appellant had apparently aggressively approached a Basij to stop him filming her. The account given by the appellant was not implausible. Mr Gayle also suggested that the error referred to by the judge at paragraph 28 was an error that the appellant had corrected at the outset of the hearing.
11. Finally, at paragraph 30 of the determination, the judge found against the appellant because she claimed that she had no idea that the agent was proposing to bring her to the United Kingdom. The judge said that this was not credible because agents remain in business because their reputation is that, circumstances permitting, they deliver the goods, including a destination of choice if that is practical. Mr Gayle simply pointed out that there was no evidence to suggest that the appellant did know where she was coming.
12. Mr Kingham suggested that there were no material errors and that the challenges amounted to little more than disagreements. He suggested that if, as was claimed by the appellant, her previous solicitors had erred on her behalf then they should have been contacted and asked for a witness statement or they should have been made the subject of a complaint to the solicitors’ regulatory authority.
13. Any error that the judge may have made in paragraph 29 in his determination was not material because the medical evidence showed that the appellant had not been scalded at the time that she claimed to have been scalded. The medical evidence suggested that it was simply not credible that the appellant could have been scalded in December 2012. He pointed out that the grounds of appeal suggested that at paragraph 24 the judge had erred by applying the wrong standard of proof. He had not. It is apparent that the judge gave a proper self-direction on the standard of proof. Simply suggesting that the appellant had not satisfied him that she had been encouraged to attend two demonstrations did not mean that he was not satisfied on any higher standard than on a reasonable likelihood.
14. So far as paragraph 25 is concerned it appears that the appellant would have us believe that she actually deliberately provoked a Basij. That was inconsistent with what the appellant had claimed. The judge was entitled to conclude as he had done.
15. He disagreed that there was a material misunderstanding with the evidence demonstrated by paragraph 25 of the determination and referred me to paragraph 21 of the appellant’s statement. There clearly had been a pause because the Basij had clearly waited until the boyfriend went into the shop before they pursued the appellant.
16. The judge was similarly entitled to find as he did at paragraph 27. It was simply not plausible that on the one hand the appellant would be frightened of the authorities and on the other would knock a phone out of the hand of the Basij. The alleged error at paragraph 28 and 30 were not in any event material to the outcome of the appeal and a careful examination of the medical report reveals that the doctor does not say that he has been given a chronology, there is nothing in the report to indicate that he was aware of when it was claimed that the scalding had occurred.
17. He asked me to uphold the determination.
18. Both representatives indicated that were I to find an error of law in the determination, they would have no objection to the matter being heard afresh by the First-tier Tribunal, given the length of time the appellant would have to wait before the matter could be reheard by me in North Shields. I reserved my determination.
19. I have concluded that the judge has materially erred in law in his determination. I believe that there is no basis on which the judge could make the finding at paragraph 29 of his determination, that a Basij would not try and injure the appellant with scalding water. The judge gives no reasons at all why it is not credible that the appellant was scalding when clothed. Similarly, I believe that at paragraph 23 of his determination, the judge errs in holding it against the appellant that her previous solicitors had indicated that the appellant’s first incident with the authorities was in 1389, “exact month/day unknown”. That statement may indicate that the solicitors themselves (as opposed to the appellant) do not know the day and month that the appellant was first arrested. The appellant had indicated to the Tribunal that she was arrested on 25th Bahman, 1389 and claims that that was the date that she had given to her solicitors. It may well be that her solicitors made an error. This appears not to be something which was contemplated by the First-tier Tribunal judge. Unfortunately, it is difficult to assess how much this first credibility finding influenced the judge in his consideration of the remaining evidence. I am also concerned that the next adverse credibility findings at paragraph 24 do not appear to be sufficiently reasoned.
20. While I do not believe that the judge did necessarily misunderstand the appellant’s evidence, which he records in paragraph 25, I believe that the judge was wrong to suggest that the Basij would not react as the appellant’s evidence would have it. He had no basis on which to make that assumption.
21. I believe that those errors mean that the determination cannot stand.
22. Paragraph 7 of the Senior President’s Practice Statement provides as follows:-
“7.1 Where under section 12(1) of the 2007 Act (proceedings on appeal to the Upper Tribunal) the Upper Tribunal finds that the making of the decision concerned involved the making of an error on a point of law, the Upper Tribunal may set aside the decision and, if it does so, must either remit the case to the First-tier Tribunal under section 12(2)(b)(i) or proceed (in accordance with relevant Practice Directions) to re-make the decision under section 12(2)(b)(ii).
7.2 The Upper Tribunal is likely on each such occasion to proceed to re-make the decision, instead of remitting the case to the First-tier Tribunal, unless 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.
7.3 Remaking rather than remitting will nevertheless constitute the normal approach to determining appeals where an error of law is found, even if some further fact finding is necessary.”
23. I am satisfied that this is a case which falls squarely within paragraph 7 of the Senior President’s Practice Statement, given the length of time that the parties will have to wait for the matter to be relisted before me in North Shields. Conversely, it could be heard relatively speedily by the First-tier Tribunal and in view of the overriding objective informing the onward conduct of this appeal, I have decided that this appeal be remitted to the First-tier Tribunal for a hearing afresh before a First-tier Tribunal judge other than First-tier Tribunal Judge Mark-Bell. None of the findings of First-tier Tribunal Judge Mark-Bell are preserved.
Upper Tribunal Judge Chalkley
APPENDIX referred to above