NA (UT Rule 45: Singh v Belgium) Iran
| Jurisdiction | UK Non-devolved |
| Judge | The Hon MR Justice McCloskey,Storey,Storey UTJ,McCloskey J |
| Judgment Date | 27 January 2014 |
| Neutral Citation | [2014] UKUT 205 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 27 January 2014 |
[2014] UKUT 205 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
THE PRESIDENT, The Hon MR Justice McCloskey
UPPER TRIBUNAL JUDGE Storey
NA (UT rule 45: Singh v Belgium) Iran
(1) Rule 45 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 confers discretionary, procedural case management powers. It does not require the First-tier Tribunal to undertake evidence-gathering. Any direction given under rule 45 to the Secretary of State to seek out or validate evidence must be exercised sparingly and in a fact-sensitive way, bearing in mind CM (Zimbabwe) v Secretary of State for the Home Department [2013] EWCA Civ 13. When considering whether to exercise its power under rule 45 to direct a party to produce evidence, the First-tier Tribunal should also be alert to its duty of impartial and independent adjudication and the essentially procedural nature of this rule.
(2) Neither Article 47 of the Charter of Fundamental Rights of the European Union nor the decision of the CJEU in MM v Minister for Justice, Equality and Law Reform, Ireland [Case – 277/11] establishes anything to the contrary. Similarly, neither of the ECtHR decisions in Singh and Others v Belgium [Application number 33210/11] and RC v Sweden [Application number 41827/07] is authority to the contrary.
(3) The decision of the Upper Tribunal in MJ (Singh v Belgium: Tanveer Ahmed unaffected) Afghanistan [2013] UKUT 254 (IAC), that in relation to assessing the reliability of documentary evidence the Tanveer Ahmed [2002] Imm AR 318* principles continue to apply, is reaffirmed.
By a decision dated 22 nd August 2012, the Secretary of State for the Home Department (hereinafter “the Secretary of State”), the Respondent herein, communicated to the Appellant a refusal of his application for asylum. His case under Articles 2, 3 and 8 ECHR and his claim for humanitarian protection were also rejected. The Appellant exercised his right of appeal to the First-Tier Tribunal (hereinafter “the FtT”). The appeal was dismissed on all grounds. The Appellant's application for permission to appeal to this Tribunal was refused initially. Following a renewed application, Upper Tribunal Judge Storey granted permission to appeal on the following ground:
“…. It is arguable that the FtTJ erred in law in failing to engage with the conclusions of the ECtHR in Singh and Others v Belgium and seeking to distinguish it on the facts without more.”
We shall comment at a later stage of this judgment on the procedural course which this appeal followed thereafter.
The Appellant is a national of Iran, of Kurdish ethnicity, aged 21 years. He entered the United Kingdom without leave in January 2012 and claimed asylum almost immediately. His case, in brief compass, is that in the event of returning to Iran he faces a real risk of death and torture or inhuman or degrading treatment or punishment on account of his race and imputed political opinion. The Secretary of State accepted his professed nationality and Kurdish ethnicity. The main elements of his account were evaluated and determined in the following way:
The decision maker further highlighted that the Appellant had lived an entirely normal life until December 2011 (the occasion when the authorities allegedly visited his home, in his absence) and that the Iranian authorities had granted him an exemption from national service due to the death of his father, which was considered suggestive of no adverse interest in him on account of his uncle's alleged political activities. The omnibus conclusion was that the Appellant had failed to demonstrate a well founded fear of persecution in Iran on account of his Kurdish ethnicity or professed political opinion.
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(a) His claim that his maternal uncle had worked for and supported the KDPI and was executed by the Iranian authorities five years before the Appellant's birth on account of his political opinion was assessed as unsubstantiated.
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(b) His assertion that he had possessed a managerial role in a photocopying shop was rejected as unworthy of belief.
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(c) His claim that a friend had been photocopying KDPI literature and was politically active in this organisation was treated as unsubstantiated.
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(d) Ditto his claim that the authorities had visited his home on 1 st January 2012.
The FtT at first instance, having considered the evidence in some detail, made the following findings in paragraph [34]:
“Looking at the evidence in the round I have found that the Appellant did not have sole charge of a photocopying shop. I have found his evidence to be vague and lacking in the detail I would expect if his claim were true. I have found that he lied about losing contact with his family. I have found that he has produced documents that are not reliable to support his claim. I do not accept that there is credible evidence to support a finding that the Appellant has been the victim of persecution at the hands of the Iranian authorities for his imputed political beliefs. I do not accept that he has been convicted in his absence or that he is of interest to the authorities and I find that the far more likely situation is that he has fabricated this story to bolster a claim for asylum.”
The Judge then reasoned, drawing on these findings, that the Appellant's profile is that of an Iranian national who left his country illegally and subsequently claimed asylum unsuccessfully in the United Kingdom. Giving effect to the country guidance decision in SB (risk on return-illegal exit) Iran CG [2009] UKAIT 00053, he concluded that the Appellant would not be exposed to a real risk of persecution or other ill treatment in the event of returning to his country. The appeal was dismissed on all grounds.
We have adverted above to the narrow ground on which permission to appeal to this Tribunal was granted. At the outset of the hearing, Counsel for the Appellant made an application that all of the grounds contained in the renewed application for permission to appeal be considered. This application was made without prior notice to either the Respondent or this Tribunal. Acceding to it would inevitably have resulted in an adjournment to enable the Respondent to make proper preparations, with consequential wasted costs and delay. Taking this factor into account, together with the care with which and terms in which the other grounds of appeal had been refused by two Judges of the Upper Tribunal, coupled with the inexplicable absence of advance notice, we refused this application.
In the hearing which followed, this Tribunal's exhortations to Counsel for the Appellant to formulate his main arguments in clear and unambiguous terms met with limited success. The absence of a skeleton argument, unacceptable in the context of this appeal, compounded this difficulty. Ultimately, following careful and repeated enquiry, it appeared to us that Counsel was advancing the following two central arguments:
The documents in question consisted of a summons to attend court in Iran, an Iranian court judgment and a medical report. The Appellant's case was that these documents had been transmitted to him by his brother in Iran by email attachment. Counsel appeared to submit that it had been practically impossible for the Appellant to secure the originals of these documents and produce them in evidence.
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(a) The FtT was under a duty to take positive steps to confirm the authenticity of certain documents on which the Appellant relied in support of his case and had erred in law in failing to perform this duty.
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(b) Linked to (a), the FtT had further erred in law in failing to order the Secretary of State to take appropriate verification steps.
In developing these two main arguments, Counsel submitted that the FtT had a duty to take steps to dispel all doubts concerning the Appellant's case. It was further submitted that the FtT should have specifically warned the Appellant that without the originals of the documents under scrutiny his appeal would be dismissed. Next, it was submitted that the FtT should have asked the Appellant to consent to the Tribunal undertaking further enquiries, directed to unspecified national Iranian authorities, in an attempt to secure the originals of the documents. When we probed this submission, Counsel suggested that the practical outworkings of this duty would entail the FtT pursuing enquiries through UK Government Agencies such as the Foreign and Commonwealth Office (“the FCO”).
Counsel was pressed by this Tribunal to identify the source of the power for which he was contending. The submission in response, which was repeated, was that this takes the form of an implied power, to be derived from the FtT's duty of “anxious scrutiny”. This Tribunal then adjourned to allow Counsel to consider this discrete issue further. Following the adjournment, Counsel revised his submission, contending that the power reposes in rule 45 of the Asylum and Immigration Tribunal (Procedure) Rules 2005. This provides, in material part:
“(1) The Tribunal may give directions to the parties relating to the conduct of any appeal or application ……..
(4) Directions of the Tribunal may, in particular –
(a) relate to any matter concerning the preparation for a hearing;
(b) specify the length of time allowed for anything to be done;
(c) vary any time limit …….
(d) provide for ……….
(iii) a party to provide further details of his case, or any other information which appears to be necessary for the determination of the appeal ……”
At this belated stage of the hearing, the Respondent's submissions having been completed, counsel's submissions also invoked, for the first time, the EU Charter of Fundamental Rights, specifically Article 47.
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