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


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URL: http://www.bailii.org/uk/cases/UKAITUR/2025/UI2024003136.html
Cite as: [2025] UKAITUR UI2024003136

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IN THE UPPER TRIBUNAL

IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2024-003136

First-tier Tribunal No: PA/01110/2022

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

2 nd May 2025

 

Before

 

UPPER TRIBUNAL JUDGE O'BRIEN

DEPUTY UPPER TRIBUNAL JUDGE FARRELLY

 

Between

 

SH

(ANONYMITY ORDER MADE)

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr A Bradley, Solicitor

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

 

Heard at Edinburgh Tribunal Centre on 13 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 appeals against the decision of a Judge of the First-tier Tribunal ('the Judge') dismissing his appeal against the respondent's refusal of his international protection and human rights claim.

2.              I have decided to maintain the anonymity direction made by the First-tier Tribunal because the importance of facilitating the discharge of the obligations of the United Kingdom under the Refugee Convention in the circumstances of this case outweighs the principle of open justice/refuse to make an anonymity direction because of the possibility of risk arising to the appellant from the mere publication of the matters in this decision

 

The Issues

3.              Permission to appeal was granted by Upper Tribunal Judge Blundell on the grounds that it was arguable that the Judge had given the appearance of bias by asking questions on matters not raised or relied on by the respondent (when he was in Germany and how he had travelled there). Judge Blundell did, however, observe that there were obvious contradictions between the appellant's account and documents produced by the German authorities and further that the Judge was arguably on the horns of a dilemma.

 

4.              Whilst not limiting the ambit of permission, Judge Blundell noted that the remaining grounds were 'decidedly less meritorious'. These in essence were: that the Judge had failed to consider what benefit to the appellant there had been in lying about his time in Germany and/or whether the appellant's evidence had been affected by his taking strong painkillers: and that the Judge had failed to consider what benefit there would have been to the appellant telling his persecutors about the existence of children from his marriage.

 

5.              Mr Bradley argued in short that, in order to avoid an appearance of bias, the Judge was obliged to disregard any apparent inconsistency between the appellant's account and the documentary evidence. The Judge should not have taken for himself peripheral issues and developed his own theory of the case. Proceedings before the First-tier Tribunal were adversarial in nature and it was for the respondent to take any points said to damage the appellant's credibility. As it was, it appeared that the appellant had in his witness statement mixed up the details of his journey out of Iraq in 2017 with his earlier departure in 2015. There was no credibility issue.

 

6.              Mr Mullen responded that it was open to the Judge to seek clarification of matters which concerned him. Whether or not the appellant's travel to Germany was peripheral, it had a proper bearing on his credibility. The judge had fairly given the appellant an opportunity to address the inconsistencies.

 

Consideration

 

7.              The Judge was dealing with an appeal against refusal of fresh submissions made after the appellant's original asylum claim had been refused and his appeal dismissed. He correctly reminded himself that he should treat the first judge's decision as his starting point (per Devaseelan (Second Appeals - ECHR - Extra-Territorial Effect) Sri Lanka * [2002] UKIAT 00702; [2003] Imm AR 1) but directed himself that he 'should treat that determination with considerable caution for the following reasons'. Those reasons he set out at [13]-[14]:

 

13. First Tier Tribunal Judge Kempton rejected the Appellant's appeal at least in part on the basis that she considered "it seems highly unlikely that he has ever been to Germany as he claims. That throws his whole account into disarray..."

 

14. It is now accepted by the Respondent that the Appellant had in fact visited Germany and a take back requested been submitted by the Respondent on 30 October 2017, around two years before the Appellant's appeal. It is not clear to me why this information was not available at the previous appeal. However, it is now not in dispute that the Appellant was in Germany in 2016. In these circumstances, I clearly cannot be bound by the previous finding that it is highly unlikely that the Appellant has ever been to Germany. Given the importance of the issue as to whether the Appellant was in Germany to the findings by First Tier Tribunal Judge Kempton, I consider it is appropriate for me to look at this matter as if the first determination had never been made.

 

8.              Noting at [15] that there were a number of aspects of the appellant's account which caused him concern, the Judge set them out in the subsequent paragraphs. The following are relevant to the appellant's time in Germany:

 

16. My first concern relates to the Appellant's departure from Iraq in 2015 and journey to Germany. In his statement, the Appellant describes leaving Iraq for the first time in late 2015, after his wife's family discovered their whereabouts. He describes going to the home of the friend of his uncle and continuing his journey as follows: -

 

i. "We stayed there one night and the following day my uncle's friend took us to Zakho. My uncle then came to Zakho and organised an agent who took us over the border by car. We then travelled by foot and car to Istanbul."

 

b. He goes on to describe travelling for 40 days and arriving in Germany on Christmas Day.

 

17. Within the Respondents bundle there are a number of documents issued by the German authorities, as a result of what appears to be a subject access request by the Appellant. These documents include passports for the Appellant, his wife and their two children. These passports contain stamps showing the Appellant and his family left Iraq from Erbil Airport on 15 December 2015. There are also visas issued by the Turkish authorities on the same date granting them residence for what appears to be a period of 30 days. This is entirely inconsistent with the Appellant's account that they were taken to Turkey by an agent on car and by foot. It is also inconsistent with his account that it took 40 days to travel from Iraq to Germany, if he arrived as claimed in Germany on Christmas Day.

 

18. I asked the Appellant whether there was any explanation he could offer for the passport stamps. Initially he suggested that the stamps were correct, as he had arrived in Germany on 25 December 2015, before suggesting he could not recall when he left his country and believed he had left by car.

 

19. My second concern relates to when the Appellant left Germany, to return to Iraq. The information provided by the German authorities is that the Appellant and his family left Germany on 1 April 2016. This is consistent with the terms of the laissez-faire documents that have been produced, which appear to be valid until 22 May 2016. However, on the Appellant's account, they did not leave Germany until around July 2017. When this discrepancy was pointed out the Appellant, he suggested that he was issued with the card but did not go back at that time. The difficulty with this explanation is that it is inconsistent with the information provided by the German authorities. In addition, the Appellant has at no point in the past suggested he was about to leave Germany on an earlier occasion but did not do so.

 

9.              It is not suggested that the Judge misdescribed the appellant's case before him or what the documents provided by the German authorities disclosed. As Judge Blundell observed in his grant of permission, there is an obvious inconsistency between the two. As is evident from [18] & [19], the judge consequentially asked a number of questions on those issues. In fact, a recording of the relevant part of the hearing shows the following exchange with the appellant's responses in bold:

 

1. Yes you mention in your statement that you travelled to Germany via Turkey in 2015 ( OK ). You also say that you went with an agent over the border ( OK ). You say that you arrived in Germany on Christmas Day 2015 (yes it was the end of 2015 yes ) and you say that the journey took you 40 days. Now within the respondent's bundle, the documents that have been lodged by the Home Office, there is a copy of what they say is your passport, wife's passport and children's passport, and they say that you left Erbil airport on 15 December 2015... yes, yes, that's correct because I arrived in Germany on 25 December, 25 December I arrived in Germany, 25 December into Germany .

2. What the passport says is that you left Erbil airport on 15 December 2015... to be honest I cannot remember that, well honestly I cannot remember clearly, 25 December I arrived in Germany but I cannot remember when I left my country .

3. Can you remember how you left your country? I went to the border of turkey by car. Sir, I have a question do you mean how many days I was travelling?

4. No, I was asking how you left - did you leave through the airport or by car? No, I didn't travel from an airport .

5. In your statement you say you stayed in Germany until around July 2017 ( yes ). What the German authorities have said in the letter they gave to the British authorities was that you left Germany on 1 April 2016... No, I didn't go back at that time. It's true I have [been] issued with the card at that time but I did not travel, I didn't leave that time. Maybe they registered it at that time when I got the card but I didn't travel, I didn't leave the country that time .

[The judge then asked the interpreter to repeat her interpretation of the last answer, so that he could make sure he had noted it correctly]

 

10.          It is no longer suggested that there was anything in the manner in which the Judge asked the questions which gave rise to an appearance of bias. Moreover, it is no longer suggested that the exchange above comprised 13 questions (when in truth, after setting out the appellant's case, the Judge asked 4 questions). Rather it is the fact of his asking these questions which is said to give rise to that appearance.

 

11.          The test for apparent bias is whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the Judge was biased ( Porter v Magill [2001] UKHL 67 at [103]).

 

12.          In Abdi & ors v SSHD [2023] EWCA Civ 1455, the Court of Appeal dealt with situations in which it would be procedurally unfair to find against an appellant on a point not expressly put to them. The court did, however, say the following at [31]:

 

'31. Problems often arise as to how the tribunal can avoid giving an appearance of bias where, as has increasingly happened, the respondent is not represented at the hearing and so the usual adversarial testing of the applicant's evidence by cross-examination does not take place. In June 1999, the Immigration Appeal Tribunal gave guidance in what have come to be known as the Surendran Guidelines, given emphasis by the Immigration Appeal Tribunal in MNM v Secretary of State for the Home Department [2000] UKIAT 00005. Paragraph 5 of the Surendran Guidelines is of direct application in this case. It provides:

 

"5. Where no matters of credibility are raised in the letter of refusal but, from a reading of the papers the special adjudicator himself considers that there are matters of credibility arising therefrom, he should similarly point these out to the representative and ask that they be dealt with, either in examination of the appellant or in submissions."'

 

13.          In HA & Anor v SSHD [2010] ScotCS CSIH 28, the Court of Session held at [13] that:

 

'[13] Given the judicial nature of the Tribunal's function, it is generally inappropriate for it to become involved in challenging the evidence placed before it. As Moses J observed in R v Special Adjudicator, ex parte Demeter [2000] Imm AR

424 at page 430:

 

"The appeal should be, and is, adversarial. It is important that the special adjudicator should avoid, if possible, giving any appearance of entering into the arena by challenging the account that the applicant gives himself."

 

There are however circumstances where, as a matter of fairness, the Tribunal cannot remain silent in the face of the evidence presented to it. One example of such circumstances has already been given, in the case of Kriba v Secretary of State for the Home Department. Other examples can be found amongst the reported decisions, and we shall refer to some in a moment. It is however necessary to emphasise that such circumstances are fact-sensitive.'

 

14.          Whilst a number of the examples later given concerned cases where the respondent was not represented, the case of Kriba was considered at [8] thus:

 

'[8] As an expert body, the Tribunal is entitled to reject evidence notwithstanding that the evidence has not been challenged before it. Fairness may however require it to disclose its concerns about the evidence so as to afford the parties an opportunity to address them. That point is illustrated by the decision in Kriba v Secretary of State for the Home Department 1998 SLT 1113, where the applicant had relied on a letter from Amnesty International which was not challenged by the respondent and which had been relied on by the Immigration Appeal Tribunal in another case shortly beforehand. The adjudicator however attached no weight to the letter, describing it as anecdotal and inadequately sourced. The applicant was not given an opportunity to adduce additional evidence to support what was stated in the letter. Lord Hamilton granted an application for judicial review, stating at page 1116:

 

"The weighing of the evidence before him is a matter for the special adjudicator and the fact that evidence is unchallenged by the presenting officer does not of itself oblige the special adjudicator to accept it. In the present case, however, where the evidence was not only unchallenged and uncontradicted but came from an apparently responsible source and was a vital element in this part of the petitioner's case, it was, in my view, procedurally unfair wholly to reject it without first affording to the petitioner an opportunity to adduce support for it."

 

In the particular circumstances of that case, the applicant could reasonably proceed on the basis that there was no need for him to adduce evidence on this vital point besides the letter, given that the letter was unchallenged and came from a source which was generally treated as reliable (and had recently been treated as reliable in relation to that very letter), unless he was put on notice of the adjudicator's concern.'

 

15.          In XS (Kosovo- Adjudicator's conduct - psychiatric report) Serbia and Montenegro [2005] UKIAT 00093, the Immigration Appeal Tribunal (IAT) considered an appeal in which it was argued that the adjudicator acted procedurally unfairly and with the appearance of bias. Significant amongst the factors alleged and relied upon was the manner in which the adjudicator had asked questions of the appellant (repetitive, hostile and excessive). In its conclusions, the IAT made the following relevant observations.

 

'[31] It was not illegitimate for the Adjudicator to ask questions about the mode of travel and nationality of the Appellant, even though those issues were not pursued by the Home Office Presenting Officer. An Adjudicator is entitled to raise issues which trouble him. However, where there is a Home Office Presenting Officer, who does cross-examine, an Adjudicator should sense warning bells ringing over what he then does.

 

...

 

33. The questions should not be too long. There is no precise permissible ratio, but asking significantly more questions than the Home Office Presenting Officer is again an indication of apparently excessive intervention with the attendant risk of apparent bias.

 

...

 

35. We also accept that this was on a peripheral issue; the Adjudicator with his approach to nationality, frontiers, mode of travel and source of money and, seemingly inaccurately, as to when the Appellant declared himself to the police, was developing his own theory of the case. This was very different from the Secretary of State's refusal letter or the Home Office Presenting Officer questions. Again, no absolute rule can be laid down; an obvious issue may have been omitted; credibility may be at issue but a facet not otherwise explicitly identified may call for examination. However, in what remains an essentially adversarial system, for an Adjudicator to develop a hostile theory, in addition to the Secretary of State's different opposition can create a real possibility of the Adjudicator appearing biased. Warning bells should be sounding.'

 

16.          What can be distilled from these cases is that: it is usually (but not always) necessary as a matter of fairness to put to an appellant a matter which is likely to be found to be damaging to his case; such cases are usually (but not always) ones where the respondent is not represented; and the Judge should behave with propriety and remain alert to the possibility of giving the appearance of bias, in particular when the respondent is represented and more so if challenging the appellant's case on a basis different to the respondent.

 

17.          In the instant case, because the appellant's presence (or rather not) in Germany was so fundamental to the earlier judge's dismissal of the case from which the Judge was being invited to depart, the issue was fairly on the Judge's 'radar'. It was not, in our view a wholly 'peripheral' issue. Even if it were, the fair-minded and informed observer would not consider that, by examining the evidence from the German authorities, the Judge was casting around for reasons to find against the appellant, irrespective of the respondent's acceptance that he had been in the country.

 

18.          Having done so, the inconsistencies between that evidence and the appellant's evidence were so obvious that, again, the fair-minded and informed observer would take no issue with the judge giving the appellant the opportunity to explain those inconsistencies. We were told by Mr Bradley that there is (or possibly is) an innocent explanation: that the appellant had travelled through Germany again in 2017 and had mixed up some of the details of that journey with his earlier journey in 2015. However, no such explanation was offered to the Judge.

 

19.          No issue is taken with the manner of the questioning and, having heard a recording of the hearing (which we offered to play to the representatives), we find that no such criticism would have been warranted. Furthermore, the questions were of an open nature and the number of questions was modest, and certainly nowhere near an amount and nature which would give the fair-minded and informed observer any concern.

 

20.          We do not accept that the Judge was developing his own hostile theory of the case. The respondent continued to oppose the appeal on the basis that the appellant's account was incredible. The obvious inconsistencies over the appellant's time in and travel to/from Germany were merely further matters going to his credibility and, indeed, matters he might well have been able to address given the opportunity.

 

21.          All in all, we are not persuaded that the Judge gave the appearance of bias. As for the other complaints, they amount to disagreement with the Judge's conclusion. It was clearly open to the Judge, having given the appellant the opportunity to explain obvious inconsistencies in his account, and having received no adequate explanation, to consider the appellant's credibility to be significantly damaged. It cannot be said to have been irrational for the judge not to ponder on the appellant's motives for lying. He cannot be criticised for failing to take into account explanations not offered at the time, such as confusion between two journeys through Germany. The grounds do not suggest that the influence of painkillers was advanced as a reason for inconsistency in the appellant's account.

22.          The appellant's account of his journey to/from and time in Germany was not the only matter undermining his credibility in any event. The Judge also found it to have been damaged by the appellant's claim that his wife's family did not know the couple had children. That conclusion is also challenged in the grounds, essentially on grounds of perversity and/or inadequacy of reasons. However, the Judge sets out his reasoning on the issue in [20]-[21]. They are cogent and unarguably adequate. Moreover, the Judge reaches conclusions plainly open to him. This ground amounts in reality to no more than disagreement and also fails.

23.          For these reasons, the appeal fails.

Notice of Decision

 

1.   The appeal is dismissed.

2.   The decision of the First-tier Tribunal did not involve the making of an error of law, and so stands undisturbed.

 

 

 

Sean O'Brien

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

 

1 May 2025

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