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HS (Homosexuals: Minors, Risk on Return)

Judgment Cited authorities 23 Cited in 6 Precedent Map Related
Vincent
JurisdictionEngland & Wales
JudgeC JARVIS,Senior Immigration Judge
Judgment Date28 July 2005
Neutral Citation[2005] UKAIT 120
CourtAsylum and Immigration Tribunal
Date28 July 2005
Categories

[2005] UKAIT 120

Asylum and Immigration Tribunal

THE IMMIGRATION ACTS

Before:

Ms C Jarvis Senior Immigration Judge

Miss C Griffith Immigration Judge

Between
HS
Appellant
and
Secretary of State for the Home Department
Respondent
Representation:

For the Appellant: Ms J Rothwell of Counsel instructed by Scudamores Solicitors

For the Respondent: Ms P Clarke Home Office Presenting Officer

Interpreter: Mrs L Clark (Farsi — English)

HS (Homosexuals: Minors, Risk on Return) Iran

This case is reported for what we say about the treatment of homosexuals in Iran, including minors, and the assessment of risk on return, in the light of the background evidence that we received; some of which post dates that which formed the basis for the determination in RM and BB (Homosexuals) Iran CG [2005] IUKIAT 00117 (8 July 2005), and which determination has guided our deliberations and decision making.

1

This is the appeal of (________), national of Iran, whose date of birth is given as 29 June 1985. He appeals the decision of the Respondent made on 21 November 2003, to give directions for his removal to Iran, following refusal to grant leave to enter or remain in the UK on asylum or human rights grounds.

2

The Appellant appeals to the Asylum and Immigration Tribunal pursuant to section 82 of the Nationality, Immigration and Asylum Act 2002, (the 2002 Act), as amended by the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, (the 2004 Act), by a notice of appeal dated December 2003 and the Tribunal has borne in mind the grounds of appeal set out in that notice, which refer to alleged prospective breach of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, as well as prospective breach of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), as that Convention has been incorporated into United Kingdom domestic law by the Human Rights Act 1998.

3

The Appellant's case is that he has a well-founded fear of being persecuted, and of experiencing other serious harm, at the hands of the authorities in Iran, by reason of his membership of a particular social group, namely homosexuals in Iran, as a person who has already come to the adverse attention of the authorities there and who has a criminal record resulting from homosexual activity.

4

The history of the matter is this. The Appellant claims that he left Iran on or about 10 November 2002, and arrived in the UK, apparently at Purfleet, on about 3 December 2003, clandestinely, having travelled by lorry through a number of countries unknown to him. He was taken to police at Grays, who, on taking account of the fact that he was a separated child, handed him into the care of the local authority social services department. It was not until 16 December 2003 that the Appellant was taken to the Home Office, by a social worker, in order to lodge his claim to asylum.

5

A written statement of evidence in support of the claim was lodged, dated 27 December 2002, and the Appellant was interviewed by a Home Officer on 16 October 2003. The Respondent set out his reasons for refusing to recognize the Appellant as a refugee and refusing to grant leave to enter or remain on human rights grounds in a letter dated 20 November 2003 and a supplemental letter dated 12 January 2004.

6

The Appellant appealed to an Adjudicator, as she then was, of the Immigration Appellate Authority, Ms M Dean. His appeal was dismissed in a determination issued on 30 March 2004. The Appellant appealed to the Immigration Appeal Tribunal (IAT) and was granted permission to appeal.

7

In its determination of that appeal, issued on 14 January 2005, the IAT held that the Adjudicator had materially erred in law, in that she had failed to make findings of fact in relation to matters central to the Appellant's claim, and to the assessment as to risk on return to Iran. The appeal was allowed to the extent that it was remitted to be heard afresh, other than by Ms M Dean. It is in this way that the appeal comes before us now.

8

The appeal before us is, by virtue of the Commencement No.5 and Transitional Provisions Order 2005, to be reconsidered by the Asylum and Immigration Tribunal (AIT) as if it had begun its life as an AIT appeal. It is governed by the provisions of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 (the 2004 Act), including provisions that amend the Nationality, Immigration Asylum Act 2002, (the 2002 Act). In particular we refer to Section 103A of the 2002 Act, as inserted by Section 26 of the 2004 Act (unification of appeal system); and the Asylum and Immigration Tribunal (Procedure) Rules 2005 (the 2005 Procedure Rules).

9

We remind ourselves that when hearing a case by way of reconsideration, the Tribunal must first decide whether or not the determination discloses a material error of law. It is only where that question is answered in the affirmative that it is open to the Tribunal to go on to consider what relief, if any, should be granted, and whether or not fresh evidence, if any, should be admitted.

10

That decision, in this case, was reached by the IAT, in the terms and for the reasons set out in paragraph 7 above, in the light of which we proceeded by way of a fresh, full reconsideration. We received oral evidence from the Appellant with the assistance of a Farsi speaking interpreter. We are satisfied that, with the able assistance of Mrs Clark, the Appellant was enabled to give all the evidence that he wished to, in terms that the Tribunal was able to understand.

11

We have before us all the documents referred to above including interview records, and the Respondent's letters, in which he sets out his reasons for refusing the Appellant's application (the Home Office appeal bundle). Also before us was the Respondent's Country Assessment of April 2005. In addition, Ms Clarke lodged an article entitled ‘Should I Convert to Judaism?’, and an article entitled ‘Q & A about being Gay and Frum (a religious observant Jew), downloaded from the internet.

12

From the Appellant, we received his three statements; a chronology; Psychiatric reports of Dr F E Winton dated 5 February 2004 and 25 April 2005; medical report of Dr Juliet Cohen, November 2003, and addendum dated 27 February 2004; Photographs of scarring to the Appellant's person; three expert reports from Anna Enayat, dated 4 March 2004, 24 April 2005, and 19 July 2005; Article downloaded from Roozonline, 21 July 2005 “The Execution of Two Gay Young Men”; Article from the Times of London, 22 July 2005: “Public Execution for the Teenagers Convicted of Rape”, and various reports from bodies including Amnesty International; Radio Free Europe; Voice of America; Human Rights Watch; the UK FCO; US State Department; European Parliament, and UNHCHR.

13

The Appellant lodged two cases: the decision of the New Zealand Refugee Status Appeals Authority No.74665/03, 7 July 2004, and the determination of the IAT in RM and BB (Homosexuals) Iran CG [2005] UKIAT 00117.

14

Aware that the IAT was shortly to give authoritative guidance relating to issues before us, we adjourned the hearing of this appeal, part-heard, on 19 May 2005, having concluded the oral evidence, to enable us to take into account that guidance. We reconvened the hearing on 22 July 2005, when we were able to receive a copy of that case, and receive a written skeleton argument from Ms Rothwell, and oral submissions from both representatives, in order to conclude the hearing. We reserved our determination, which we now give with our reasons.

The Law and the Burden and Standard of Proof
15

In reaching our decision we have borne fully in mind the relevant law and immigration rules, including the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, and the Handbook on Procedures and Criteria for Determining Refugee Status ('The Handbook) (Geneva, January 2000). By Article 1(A) (2) of the Refugee Convention the term “refugee” shall apply to any person who:-

“Owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality, and is unable, or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence is unable, or, owing to such fear, is unwilling to return to it.”

16

We remind ourselves that it is for an Appellant to satisfy us that there is a reasonable degree of likelihood, or real risk that, should he or she have to leave this country, he or she will be required to return to a country where he or she fears persecution for a Convention reason, that is to say, for reasons of race, religion, nationality, membership of a particular social group or political opinion. We apply throughout the lower standard of proof as referred to in R -v- SSHD ex parte Sivakumaran [1988] Imm AR 147 and the Court of Appeal in Karanakaran -v- SSHD [2000] INLR 122. We have also been guided by the judgment of the Court of Appeal in the case known as Ravichandran and Others [1996] Imm AR 97, and in particular, we have borne in mind the definitions of persecution found there; the leading judgment having been given by Simon Brown LJ. We consider whether or not the Appellant is a person in need of international protection not only at the date of application and of the Respondent's decision, but also today, ( R -v- SSHD ex parte Adan [1998] INLR 325 HL).

17

The Appellant places specific reliance on Article 3 of the ECHR. It is for an Appellant to show that there are substantial grounds for believing that he or she is at real risk of ill-treatment contrary to Article 3 ECHR, which prohibits torture, inhuman or degrading treatment or punishment. The standard of proof equates to...

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