HB (Anonymity Direction Made) v The Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | Dr H H Storey |
| Judgment Date | 25 May 2018 |
| Neutral Citation | [2018] UKUT 430 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 25 May 2018 |
[2018] UKUT 430 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
UPPER TRIBUNAL JUDGE Martin
UPPER TRIBUNAL JUDGE Kopieczek
For the Appellant: Ms S Naik QC and Mr R Spurling, Counsel instructed by Barnes Harrild & Dyer Solicitors
For the Respondent: Mr E Metcalfe, Counsel instructed by the Treasury Solicitor
HB (Kurds) Iran CG
COUNTRY GUIDANCE
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(1) SSH and HR (illegal exit: failed asylum seeker) Iran CG [2016] UKUT 308 (IAC) remains valid country guidance in terms of the country guidance offered in the headnote. For the avoidance of doubt, that decision is not authority for any proposition in relation to the risk on return for refused Kurdish asylum-seekers on account of their Kurdish ethnicity alone.
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(2) Kurds in Iran face discrimination. However, the evidence does not support a contention that such discrimination is, in general, at such a level as to amount to persecution or Article 3 ill-treatment.
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(3) Since 2016 the Iranian authorities have become increasingly suspicious of, and sensitive to, Kurdish political activity. Those of Kurdish ethnicity are thus regarded with even greater suspicion than hitherto and are reasonably likely to be subjected to heightened scrutiny on return to Iran.
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(4) However, the mere fact of being a returnee of Kurdish ethnicity with or without a valid passport, and even if combined with illegal exit, does not create a risk of persecution or Article 3 ill-treatment.
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(5) Kurdish ethnicity is nevertheless a risk factor which, when combined with other factors, may create a real risk of persecution or Article 3 ill-treatment. Being a risk factor it means that Kurdish ethnicity is a factor of particular significance when assessing risk. Those “other factors” will include the matters identified in paragraphs (6)-(9) below.
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(6) A period of residence in the KRI by a Kurdish returnee is reasonably likely to result in additional questioning by the authorities on return. However, this is a factor that will be highly fact-specific and the degree of interest that such residence will excite will depend, non-exhaustively, on matters such as the length of residence in the KRI, what the person concerned was doing there and why they left.
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(7) Kurds involved in Kurdish political groups or activity are at risk of arrest, prolonged detention and physical abuse by the Iranian authorities. Even Kurds expressing peaceful dissent or who speak out about Kurdish rights also face a real risk of persecution or Article 3 ill-treatment.
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(8) Activities that can be perceived to be political by the Iranian authorities include social welfare and charitable activities on behalf of Kurds. Indeed, involvement with any organised activity on behalf of or in support of Kurds can be perceived as political and thus involve a risk of adverse attention by the Iranian authorities with the consequent risk of persecution or Article 3 ill-treatment.
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(9) Even ‘low-level’ political activity, or activity that is perceived to be political, such as, by way of example only, mere possession of leaflets espousing or supporting Kurdish rights, if discovered, involves the same risk of persecution or Article 3 ill-treatment. Each case however, depends on its own facts and an assessment will need to be made as to the nature of the material possessed and how it would be likely to be viewed by the Iranian authorities in the context of the foregoing guidance.
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(10) The Iranian authorities demonstrate what could be described as a ‘hair-trigger’ approach to those suspected of or perceived to be involved in Kurdish political activities or support for Kurdish rights. By ‘hair-trigger’ it means that the threshold for suspicion is low and the reaction of the authorities is reasonably likely to be extreme.
| Description | Paragraphs |
| INTRODUCTION | 1–8 |
| The Country Guidance question | 1 |
| RULE 15(2)(A) APPLICATION | 9–17 |
| EXISTING COUNTRY GUIDANCE AND RELATED CASES | 19–22 |
| THE LEGAL FRAMEWORK-COUNTRY GUIDANCE STATUS | 23–25 |
| COUNTRY BACKGROUND-HUMAN RIGHTS | |
| General | 26–28 |
| Kurds | 29–32 |
| ASSESSMENT AND CONCLUSIONS-COUNTRY GUIDANCE | |
| (i) SSH and HR; a starting point? | 33–41 |
| (ii) The expert evidence-evaluation | 42–66 |
| (iii) Returns | 67–79 |
| (iv) Conclusions | 80–97 |
| COUNTRY GUIDANCE | 98 |
| THIS APPELLANT-ASSESSMENT AND CONCLUSIONS | 99–122 |
| ANNEX A | |
| Error of law decision | |
| ANNEX B | |
| Expert evidence | |
| ANNEX C | |
| Submissions | |
| ANNEX D | |
| Index of background evidence |
The appellant is a citizen of Iran, born in 1988, and is of Kurdish ethnicity. This decision gives country guidance in relation to the following question, namely “whether a failed asylum seeker of Kurdish ethnicity will be at risk of persecution on return”.
Although in the parties' various written submissions there were mildly different iterations of the country guidance issue, the country guidance question was and is as expressed in the preceding paragraph, as agreed by the parties at the hearing before us.
There was before us a statement of agreed facts which was, ultimately, confirmed by the parties as agreed between them at the hearing on 25 May 2018.
The statement of agreed facts is reproduced here in full, with the only editing being that in relation to the appellant's full date of birth. The agreed facts are as follows:
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“1. The appellant is of Kurdish ethnicity. He was his parents' only child, born [in] 1988 in Betoosh, Sardasht, Iran. His father was a shepherd, his mother a housewife. In 1994 his parents disappeared. The appellant believes that this is because they were arrested by the authorities for involvement in Kurdish nationalist activities. At or around the same time there was a fire at his family home, during which the appellant suffered burns injuries.
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2. The appellant was taken by his uncle to Iraq, where he grew up undocumented. He was bullied and harassed by others in the village due to a disability in his legs and the fact that he was an outsider. When he reached adulthood he returned to Iran, where, with his uncle's assistance, he raised money to pay for his journey abroad by the sale of his family land. He left Iran illegally on 1 September 2015, reaching the United Kingdom in early July 2016.
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3. The appellant claims he cannot live undocumented and discriminated against in Iraq – where he does not have citizenship or right to reside – and he cannot return to Iran given his family's claimed involvement with pro-Kurdish separatist groups.”
The appellant's appeal against the respondent's decision dated 19 December 2016 to refuse his protection claim, came before First-tier Tribunal Judge Nicholls (“the FtJ”) at a hearing on 27 January 2017 whereby his appeal was dismissed. In a decision promulgated on 31 May 2017 Upper Tribunal Judge Storey found an error of law in Judge Nicholls' decision and set his decision aside, for the decision to be re-made in the Upper Tribunal (“UT”). Judge Storey's error of law decision is included as an annex to our decision.
The agreed facts reflect the findings made by the FtJ, subject of course to the matters that remain in dispute, and subject to further specific reference to the FtJ's findings. However, the FtJ found that the evidence did not show that the appellant had been involved in any sur place political activity which had drawn him to the adverse attention of the authorities in Iran. Thus, the anti-Iranian government messages that he had claimed to have posted on Facebook would not expose him to risk. Further, permission to appeal was granted only on the issue of whether a failed asylum seeker of Kurdish ethnicity would be at risk of persecution on return.
We heard oral evidence from two expert witnesses, Anna Enayat and Professor Emile Joff�. They each provided written reports and written answers to questions in writing from the respondent. Professor Joff�'s report is dated 14 October 2017 and that of Ms Enayat is dated 22 January 2018. Although their evidence is summarised at Annex B, it essential to a full understanding of this decision that full reference is made to the summarised expert evidence. We make further reference to aspects of their written and oral evidence in our conclusions.
We give a summary of the parties' submissions which is to be found at Annex C. We make further reference to the submissions as appropriate in our conclusions. So far as the written submissions are concerned, these are in the parties' skeleton arguments provided in advance of the hearing, and written submissions provided in advance of closing oral submissions. It is the closing written submissions which we summarise since they crystallise the parties' arguments with necessary references to the skeleton arguments.
Before hearing the oral evidence we considered an application made pursuant to rule 15(2A)(a) of the Tribunal Procedure (Upper Tribunal) Rules 2008 to admit additional evidence. That evidence was of Facebook posts made by the appellant both prior to and after the hearing before the First-tier Tribunal (“FtT”).
The documents which were the subject of the application are contained in a bundle of 59 pages. They are posts under the appellant's name and are accompanied by translations of posts between 24 December 2016 and 16 January 2017. The date range for the posts is 24 December 2016 to 16 January 2017 (pre-FtT hearing) and 23 February 2017 to 23 October 2017 (post-FtT hearing), the latter not being accompanied by translations. The written application to admit the evidence, dated 19 February 2018, refers to the appellant having given...
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