BM (Iran) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lady Justice Sharp |
| Judgment Date | 20 March 2015 |
| Neutral Citation | [2015] EWCA Civ 491 |
| Docket Number | Case No: C5/2013/3297 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 March 2015 |
[2015] EWCA Civ 491
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge Martin
AA/09151/2012
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Richards
and
Lady Justice Sharp
Case No: C5/2013/3297
Raza Halim (instructed by Kesar & Co. Solicitors) for the Appellant
David Blundell (instructed by The Government Legal Service) for the Respondent
Hearing date: 12 May 2015
The appellant is a national of Iran who entered the United Kingdom illegally on 26 July 2012 and made an unsuccessful claim for asylum. His appeal to the First-tier Tribunal ("FTT") on asylum, humanitarian protection and human rights grounds was dismissed by First-tier Tribunal Judge Vaudin d'Imecourt in a determination dated 11 December 2012. On further appeal to the Upper Tribunal ("UT"), Upper Tribunal Judge Martin held in a determination dated 25 September 2013 that there was no material error of law in the FTT's determination. An appeal is now brought to this court against the UT's determination. Permission to appeal was refused on the papers by Sir Stephen Sedley but was granted by Kitchin LJ on an oral renewal.
There are two grounds of appeal. In summary, they are: (1) that the FTT erred in failing to take into account, in the proportionality assessment under article 8 ECHR, the Secretary of State's policy whereby removals to Iran were suspended for the foreseeable future; and (2) that the FTT erred in taking into account the contents of a local authority's age assessment report when reaching adverse credibility findings in respect of the appellant.
As to the second issue, I should explain that on his arrival in this country the appellant claimed that his date of birth was 18 February 1997, making him 15 years old on arrival. But in an age assessment carried out by a social worker at Kent County Council ("the council") on 14 August 2012 in accordance with the principles in R (B) v Merton LBC [2003] EWHC 1689 (Admin), [2003] 4 All ER 280, he was assessed as having a birth date of 18 February 1995, which meant that he was aged 17 years 5 months on arrival, almost 18 at the date of the FTT's determination and over 18 at the date of the UT's determination.
The FTT's determination
The appellant claimed to have lived all his life in Iran in a small village in the district of Sardasht, where he worked as a shepherd with his father. He said that he had not attended school, that he was illiterate and that he spoke only Kurdish Sorani. The basis of his asylum claim was that he had assisted two members of the PJAK (the Iranian branch of the Turkey-based Kurdistan Workers Party) by providing them with food and taking them to his house; that the Iranian Revolutionary Guards had then visited his village looking for him; and that he feared that if returned to Iran he would face mistreatment due to his imputed political opinion.
The FTT judge found that the appellant was around 18 years of age. He was satisfied that the council's age assessment was correct. Referring to the assessment report, he said:
"29. … A perusal of the same clearly shows that it was a carefully crafted report which is Merton compliant. No submissions to the contrary was [ sic] made on the appellant's behalf by Ms Dassa [counsel for the appellant], who also did not seek to address me on matters disclosed therein which directly affect the appellant['s] credibility generally …."
At para 30 he gave a detailed description of the contents of the report. That he then took the contents into account, together with other factors, in reaching his adverse findings on credibility is illustrated by the following passages from the determination:
"39. I also find that the appellant did not tell the truth when he said that he was uneducated. This is clearly endorsed by the fact that he was observed by social workers and he had given every appearance of somebody who had received an education, he had some clear understanding of English before he came to the centre, and although he claimed to have learnt some when in Greece, this cannot explain how he was able to make himself understood at the very early stages by staff members at the centre. Nor does it explain how he was able to type, was able to write, and was able to do mathematic calculations. I also bear in mind that the appellant has claimed that he was a shepherd in his home village. He was asked by myself how long was the gestation period in sheep. I had made quite sure that he understood the question by carefully having it explained to him by the interpreter. The appellant, who claims that he had been a shepherd since the age of 6 and claims that he is 15 and therefore been a shepherd for nine years, said that the gestation period was 25 to 30 days. I find that however illiterate the appellant might be, as a shepherd of long standing he would at least know the answer to that question and would have been able to give the correct answer. I indicated to his Counsel that I have [bred] sheep myself and knew the gestation period. The gestation period in sheep is usually counted as five months less five days or approximately 146 days and certainly not 25 to 30 days. I find therefore that the appellant as someone who has claimed that he had been a shepherd for nine years could not possibly have given the answer he gave if he had genuinely been a shepherd. This leads me to find that the appellant was not and has never been a shepherd.
40. Having considered the whole of the evidence in this case in the round, including the answers and behaviour of the appellant when assessed by the social workers, I find that the appellant was never a shepherd and was simply making up that account. The core claim of the appellant was that as a young shepherd caring for his father's sheep he came across men from PJAK. I find that the appellant clearly was never a shepherd and as a result also find that the appellant has never come across any men from PJAK. In addition, I find that his claim that two unarmed alleged terrorists would admit to his father, a complete stranger that they are fleeing from the Iranian security services and that they are members of PJAK carrying important documents, beggars belief …. In addition, I also find that the appellant's account that his father had made arrangements for the departure of only the appellant in the circumstances … again beggars belief …."
For those and other reasons he rejected the core features of the appellant's account. He summarised the position as follows:
"42. Therefore, looking at the evidence in the round, I accept that the appellant is from the Kordestan area of Iran. I do not find that the appellant was telling the truth when he says he was a shepherd and that he was illiterate. I do not accept that the appellant was telling the truth when he said that he fled Iran because he was seen in the company of two men from PJAK. I find that the appellant has made up his account in order to make a false claim for asylum and I find that there is no truth at all in his claim to be in need of international protection …."
That led to the dismissal of the claims for asylum and humanitarian protection and the claim under articles 2 and 3 ECHR.
It is also necessary to consider how the judge dealt with the claim under article 8 ECHR. He had noted at paragraph 27 that "Ms Dassa specifically said that she was not relying on Article 8". In his conclusions on the issue, he effectively endorsed that concession:
"48. The appellant had initially raised a claim under Article 8. At the hearing it appears quite clearly that Ms Dassa has taken a pragmatic view of this case. The appellant arrived in the United Kingdom on 26 July 2012. This is barely six months. The appellant has clearly no family life in the United Kingdom and set down no roots in the United Kingdom. Applying the step-by-step approach adumbrated in the case of Razgar I find that the appellant's claim must fail at the second question.
49. The appellant's claim cannot possibly succeed under the Immigration Rules Article 8 [ sic] either. He has only been in the United Kingdom for under six months."
The UT's determination
There are only two points in the UT's determination to which I need refer. One concerns the argument that, although the conclusion of the council's age assessment was accepted, the FTT should not have relied on the observations in the report. The UT judge dismissed the argument in these terms:
"14. … With respect to Mr Halim it is a nonsense in my view to state that the only part of a Merton compliant age assessment report that can have any evidential value is its conclusion. Its conclusion is based on the report itself; the enquiries and observations of the experts who are undertaking the task. Where they record things that have been said by the Appellant, if the Appellant says they are inaccurate it is for him to say so. In this case he did not. What is clear is that he said things to those experts which he later resiled from. In my view an age assessment report which is Merton compliant, as in this case, has the same weight as an expert's report and the Judge was entitled to take its contents into account along with all the other evidence in the case."
The other point concerns the argument before the UT that, in view of the Secretary of State's policy not to enforce escorted returns to Iran, the FTT ought to have found that "the impossibility of removing the Appellant to Iran meant that he would...
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