BA (Demonstrations in Britain – risk on return) Iran CG
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Cranston,McGeachy,Nichols |
| Judgment Date | 06 October 2010 |
| Neutral Citation | [2011] UKUT 36 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 06 October 2010 |
[2011] UKUT 36 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Mr Justice Cranston
Senior Immigration Judge McGeachy
Senior Immigration Judge Nichols
For the Appellant: Mr Basharat Ali of Messrs Aman Solicitors
For the Respondent: Mr L Tarlow, Home Office Presenting Officer
BA (Demonstrators in Britain — risk on return) Iran CG
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1 Given the large numbers of those who demonstrate here and the publicity which demonstrators receive, for example on Facebook, combined with the inability of the Iranian Government to monitor all returnees who have been involved in demonstrations here, regard must be had to the level of involvement of the individual here as well as any political activity which the individual might have been involved in Iran before seeking asylum in Britain.
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2 (a) Iranians returning to Iran are screened on arrival. A returnee who meets the profile of an activist may be detained while searches of documentation are made. Students, particularly those who have known political profiles are likely to be questioned as well as those who have exited illegally.
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(b) There is not a real risk of persecution for those who have exited Iran illegally or are merely returning from Britain. The conclusions of the Tribunal in the country guidance case of SB (risk on return-illegal exit) Iran CG [2009] UKAIT 00053 are followed and endorsed.
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(c) There is no evidence of the use of facial recognition technology at the Imam Khomeini International airport, but there are a number of officials who may be able to recognize up to 200 faces at any one time. The procedures used by security at the airport are haphazard. It is therefore possible that those whom the regime might wish to question would not come to the attention of the regime on arrival. If, however, information is known about their activities abroad, they might well be picked up for questioning and/or transferred to a special court near the airport in Tehran after they have returned home.
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3 It is important to consider the level of political involvement before considering the likelihood of the individual coming to the attention of the authorities and the priority that the Iranian regime would give to tracing him. It is only after considering those factors that the issue of whether or not there is a real risk of his facing persecution on return can be assessed.
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4 The following are relevant factors to be considered when assessing risk on return having regard to sur place activities:
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(i) Nature of sur place activity
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• Theme of demonstrations – what do the demonstrators want (e.g. reform of the regime through to its violent overthrow); how will they be characterised by the regime?
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• Role in demonstrations and political profile – can the person be described as a leader; mobiliser (e.g. addressing the crowd), organiser (e.g. leading the chanting); or simply a member of the crowd; if the latter is he active orpassive (e.g. does he carry a banner); what is his motive, and is this relevant to the profile he will have in the eyes of the regime>
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• Extent of participation – has the person attended one or two demonstrations or is he a regular participant?
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• Publicity attracted – has a demonstration attracted media coverage in the United Kingdom or the home country; nature of that publicity (quality of images; outlets where stories appear etc)?
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(ii) Identification risk
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• Surveillance of demonstrators – assuming the regime aims to identify demonstrators against it how does it do so, through, filming them, having agents who mingle in the crowd, reviewing images/recordings of demonstrations etc?
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• Regime's capacity to identify individuals – does the regime have advanced technology (e.g. for facial recognition); does it allocate human resources to fit names to faces in the crowd?
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(iii) Factors triggering inquiry/action on return
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• Profile – is the person known as a committed opponent or someone with a significant political profile; does he fall within a category which the regime regards as especially objectionable?
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• Immigration history – how did the person leave the country (illegally; type of visa); where has the person been when abroad; is the timing and method of return more likely to lead to inquiry and/or being detained for more than a short period and ill-treated (overstayer; forced return)?
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(iv) Consequences of identification
• Is there differentiation between demonstrators depending on the level of their political profile adverse to the regime?
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(v) Identification risk on return
• Matching identification to person – if a person is identified is that information systematically stored and used; are border posts geared to the task?
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This is an appeal against a decision of Immigration Judge Chana. The judge had dismissed the appellant's appeal against a decision of the Secretary of State to refuse to grant the appellant asylum and to give directions for his removal. The case comes to us as an appeal but has been designated as an intended country guidance case in relation to those like the appellant who seek to resist removal to Iran by reliance on risk arising from sur place activities.
We have decided this appeal strictly on the basis of the evidence before us. However, since in the course of our deliberations we were made aware of a decision in draft by a separate panel of the tribunal dealing with some related issues [now reported as SA (Iranian Arabs—no general risk) Iran CG [2011] UKUT 41 (IAC)] we would simply note that that panel's conclusions appear to be very much in line with ours.
The appellant entered the United Kingdom on 12 July 2008 with his own passport and with a student visa, valid until 31 October 2009. He had worked in Iran at his father's company. He is unmarried and has no children and the rest of his family live in Iran.
In June and early July 2009 the appellant participated in five demonstrations outside the Iranian Embassy in London. That was at a time when there were protests both in Iran and around the world following what were perceived to be malpractices leading to the re-election as President of Iran of Mahmud Ahmedinejad over his rival, Mir-Houssein Mousavi. The appellant features briefly, for 2–3 seconds, in a video clip of the demonstrations, chanting anti-regime slogans. The clip was uploaded onto YouTube and is thus available on the internet. The appellant's photograph also appeared in a story about the protests in the October 2009 edition of a magazine called Bamdad e Iran, which is an anti-regime publication. The Supreme Leader of Iran appears on the cover of that edition as the devil. The YouTube feature and magazine are associated with a secular nationalist group, the United Front of Iranian Nationals, UFIN, based in the Iranian community in London.
The appellant applied for asylum on 13 November 2009. There was a screening interview that day, and an asylum interview was conducted on 24 November 2009. On 26 November 2009 the Secretary of State refused the application, with detailed reasons. The appellant appealed and there was a hearing before Immigration Judge Chana on 15 December 2009. The judge rejected the claim and promulgated her detailed reasons on the following day. At the hearing the appellant was represented by counsel.
As part of his case before the judge the appellant alleged certain incidents to demonstrate a heightened threat of mistreatment should he be returned to Iran, for example, his previous arrest in 1999; his sister's arrest on 15 June 2009 in Tehran, which led to his demonstrating in London; and the detention of his father, who appeared before a revolutionary court in November 2009, because of his son's activity. The judge discounted or disbelieved the appellant's account of these matters.
That left the appellant's own participation in demonstrations outside the Iranian Embassy. The judge found that the appellant “deliberately and opportunistically attempted to establish a claim as a refugee sur place” by participating in the demonstrations. However, the judge added: “I do not however take this into account when assessing the appellant's risk upon return”. Even if the appellant had been involved opportunistically in demonstrations to lay the basis of his asylum claim sur place, the judge said, on his own evidence he had only attended five demonstrations, with hundreds of others. He was not politically active while in Iran.
The judge then made findings – which we have re-examined in the light of the additional evidence adduced before us – about the extent to which the Iranian authorities could, or would try to, identify the appellant from among the demonstrators and the risk he faced, were he to be identified, when he was not perceived to be a political dissident by the Iranian authorities. Even applying the lower burden of proof, and resolving doubts in the appellant's favour, the judge was not satisfied that there were substantial grounds for believing that the appellant, if returned to Iran, would face a real risk of persecution, death, torture or inhuman or degrading treatment or punishment.
Although only obliquely referred to in submissions a bundle of the country Guidance cases relating to Iran was placed before us. Although most of the determinations refer to the brutality of the regime in Iran the only determination in a country guidance case which deals in part with a similar factual matrix to that of this appellant is that in SB (risk on return – illegal exit) Iran [2009] UKAIT 00053. In that determination the Tribunal considered evidence of what happens on arrival to those who are...
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