AZ (Error of law: Jurisdiction; PTA practice) Iran
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Lane,Blum,Lane J |
| Judgment Date | 05 July 2018 |
| Neutral Citation | [2018] UKUT 245 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 05 July 2018 |
[2018] UKUT 245 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Mr Justice Lane, PRESIDENT
UPPER TRIBUNAL JUDGE Blum
For the Appellant: Mr D Clarke, Senior Home Office Presenting Officer
For the Respondent: Mr K Smyth, Kesar & Co Solicitors
AZ (error of law: jurisdiction; PTA practice) Iran
(1) Before it has re-made the decision in an appeal, pursuant to section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007, the Upper Tribunal has jurisdiction to depart from, or vary, its decision that the First-tier Tribunal made an error of law, such that the First-tier Tribunal's decision should be set aside under section 12(2)(a).
(2) As Practice Direction 3.7 indicates, that jurisdiction will, however, be exercised only in very exceptional cases. This will be so, whether or not the same constitution of the Upper Tribunal that made the error of law decision is re-making the decision in the appeal.
(3) Permission to appeal to the Upper Tribunal should be granted on a ground that was not advanced by an applicant for permission, only if:
(a) the judge is satisfied that the ground he or she has identified is one which has a strong prospect of success:
(i) for the original appellant; or
(ii) for the Secretary of State, where the ground relates to a decision which, if undisturbed, would breach the United Kingdom's international Treaty obligations; or
(b) (possibly) the ground relates to an issue of general importance, which the Upper Tribunal needs to address.
This case:
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(a) concerns the correct approach to be taken to “error of law” decisions of the Upper Tribunal, where the re-making of the decision under appeal is to be undertaken by that Tribunal; and
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(b) is an example of the difficulties that can arise when permission to appeal is granted on a ground which was not advanced by the applicant for permission.
The respondent (hereafter claimant) is a citizen of Iran, who was born in January 1997. He is an ethnic Kurd. The claimant's father was said by the claimant to be involved politically in what the claimant now believed to be the KDPI Party.
When the claimant was 8 years old, his parents took him to live in Iraqi Kurdistan, where he was educated.
More recently, the claimant's father, according to the claimant, travelled to Iran for a week, on what the claimant thought was a trip in order to arrange accommodation for the family to return to that country. On reappearing in Iraq, however, the claimant's father showed the claimant a piece of paper which, according to what the claimant is recorded as saying at interview, was an Iranian arrest warrant.
The claimant concluded that his father must have been working for an organisation that was opposed to the Iranian regime. So, instead of returning to Iran, the family went by train and later by lorry to Europe. The claimant travelled in a separate lorry to that of his parents and found himself in the United Kingdom, where he claimed asylum.
The basis of the claimant's case was that he believed the Iranian government would arrest him as the son of a person who had run away from that country.
The Secretary of State rejected the claim. Amongst other things, the Secretary of State considered that it was not believable that an arrest warrant from Iran would have been given to the claimant's father by the Iranian authorities. Overall, the Secretary of State considered that the claimant could safely be returned to Iran.
The claimant appealed against that decision to the First-tier Tribunal. On 20 August 2015, his appeal was heard at Hatton Cross by First-tier Tribunal Judge Dineen.
Judge Dineen's decision was promulgated on 13 April 2016. At paragraph 41 of his decision, the judge said: “I regret the delay which has occurred in finalising this decision, which has been due to pressure of work in the Tribunal”. The judge nevertheless said that he had “carefully considered all the evidence and submissions made in the appeal both at and immediately following the hearing and in the period since then”. At paragraphs 42 to 47 of his decision, the judge set out the reasons why he was not satisfied, on the lower standard of proof, that the claimant's father had been involved in activities against the Iranian regime, as the claimant had suggested.
At paragraph 42, the judge found that the claimant's father had not been in possession of an Iranian arrest warrant, as had been claimed. This was because of the fact that the evidence relating to such warrants, referred to in paragraph 27 of the refusal letter, rendered it incredible that the Iranian authorities would give the subject of a warrant a copy of it prior to arresting him “thus making it clear to him that he should abscond”.
At paragraph 43, the judge found that the claimant's father had returned to a Kurdish area of Iraq and there was no evidence to suggest the Iranian authorities could execute a warrant against him there. In general, the judge was not satisfied that flight from Iraq to Europe “would have been necessary to avoid the consequences of such a warrant” (paragraph 43).
At paragraph 44, the judge found that, since the details of any involvement of the claimant's father in the activities of the KDPI had not been communicated to the claimant, the judge was not satisfied that the claimant's mother would have told the claimant that people they regularly visited were involved in the activities of that organisation.
The accounts given by the claimant of visits by the KDPI to the family home and of evenings away from the home spent by the claimant's father, were not, the judge said, specifically linked to any evidence of political activity and were consistent with many other explanations, including social activities by the claimant's father.
At paragraph 46, the judge found he could not be satisfied that if the claimant's father had been involved in KDPI activity, the latter would have returned to Iran with the intention of making arrangements for his wife and child to move back there with him.
Having made those findings, the judge turned, beginning at paragraph 48, to the issue of risk on return. The judge said that he had considered the country guidance decision in SB (Risk on return – illegal exit) Iran CG [2009] UKAIT 00053. According to the judge, that decision indicated that “there would be no risk to an asylum seeking person returning to Iran merely on account of being a failed asylum seeker, unless there were a further risk factor such as having been involved in criminal proceedings in Iran before leaving”.
At paragraph 50, however, the judge noted a report from Amnesty International, mentioned in the Secretary of State's refusal letter, that asylum seekers were “interrogated on return, whether or not they have been political activists in Iran or abroad”. At paragraph 51, the judge found that it must be “highly likely that the appellant would be asked whether he had applied for asylum in the UK, and what grounds he had given for seeking asylum”. Assuming that the claimant must be expected to respond truthfully, “this would, perhaps somewhat paradoxically, mean that he would, regardless of the truth of such claim, have to state that he had claimed that his father was a KDPI activist”.
According to the judge, this was sufficient to put the claimant at real risk. The judge accordingly allowed the claimant's appeal on asylum and human rights grounds.
The Secretary of State applied to the First-tier Tribunal for permission to appeal against Judge Dineen's decision. The Secretary of State submitted that the facts of the claimant's account, as found by the judge, fell “squarely within the country guidance case law” of SB. According to the Secretary of State, there were no further risk factors advanced by the claimant. The Secretary of State submitted that, on the judge's reasoning, “all failed asylum seekers would be at risk on return as by the very nature of them attempting to obtain refuge in the UK or any other country, the account they would advance would be one which would contain an element that placed them at risk from the Iranian authorities if it was discovered”.
Permission to appeal was granted by First-tier Tribunal Judge Holmes on 4 May 2016. At paragraph 3, Judge Holmes considered that it was arguable Judge Dineen had failed to follow the current country guidance, without giving any adequate reasons for departing from it.
However, at paragraph 2, Judge Holmes raised, of his own accord, a ground which had not featured in the Secretary of State's application for permission:-
“2. There appears to have been a very substantial, and unexplained delay in preparing the decision upon the appeal of some eight months, which gives rise to legitimate concern as to whether the parties received a fair hearing of the appeal, since the Judge could not be expected to retain a proper level of recall of the oral evidence after four months (sic); Mario [1998] Imm AR 281 and Sambasivam [1999] IATRF 1999/0419/4.”
Both sides accept (and we agree) that Judge Holmes' decision on permission was to grant permission to appeal on those two grounds. As we shall see, it is the ground Judge Holmes raised of his own volition that has led to this case going to the Court of Appeal and back to the Upper Tribunal.
In a written decision, dated 20 June 2016, which was sent to the parties, Deputy Upper Tribunal Judge Hutchinson, sitting in the Upper Tribunal, found that Judge Dineen's decision, allowing the...
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