IA v Secretary of State for the Home Department (Scotland)
| Jurisdiction | Scotland |
| Judge | Lord Kerr,Lady Hale,Lord Wilson,Lord Hughes,Lord Hodge |
| Judgment Date | 29 January 2014 |
| Neutral Citation | [2014] UKSC 6 |
| Date | 29 January 2014 |
| Court | Supreme Court (Scotland) |
| Docket Number | No 6 |
[2014] UKSC 6
Lady Hale, Deputy President
Lord Kerr
Lord Wilson
Lord Hughes
Lord Hodge
Appellant
Jonathan Mitchell QC Daniel Byrne
(Instructed by Drummond LLP)
Respondent
Mark Lindsay QC
John MacGregor
(Instructed by Advocate General)
Intervener (United Nations High Commissioner for Refugees)
Ailsa Carmichael QC Tom Hickman
(Instructed by Baker & McKenzie LLP)
Lord Kerr ( with whomLady Hale, Lord Wilson, Lord HughesandLord Hodgeagree)
The appellant has been allowed to remain anonymous for the purpose of these proceedings and has been referred to by the initials, I.A. He is a native of Iran, having been born there on 20 September 1976. He arrived in the United Kingdom on 23 August 2007 and applied for asylum the following day. An initial, screening interview of the appellant took place on 24 August 2007 followed by a substantive interview on 20 September 2007. In anticipation of the second of those interviews, he made a statement dated 19 September in which he described his background and the circumstances in which his claim to asylum was made. The account which follows in the next 5 paragraphs is taken from that statement.
The appellant stated that he was a member of a Kurdish family. He said that his parents, 3 sisters and 4 brothers continued to live in Iran. While still a young man, the appellant claimed to have witnessed ill-treatment of people who visited detainees in a detention centre near his place of work. This experience prompted a desire to join the Kurdistan Democratic Party of Iran (KDPI). Initially thereafter, he had some loose association with that party, largely consisting of the distribution of leaflets and writing political slogans on walls. On one occasion he and another man, who was a member of KDPI, sprayed anti-colour paint on a car belonging to the prison authorities of Bukan, his home city in West Azerbaijan. They were seen by a prison guard who shouted at them but they were able to flee the scene without being detained. The appellant was, he alleged, terrified that the authorities would arrest him because of his involvement in this incident, so he decided to leave the country.
At that time, the appellant was 16 years old. After the car painting incident, he did not return home. He stayed briefly with an aunt in Saghez and then went to another city. Shortly afterwards he was smuggled from there into Kurdistan in Iraq where he joined the KDPI. He was involved with them for about 6 or 7 years and then separated from them because, he said, the leaders began thinking more of their own interests than the interests of the Kurdish people of Iran.
In 1998 the appellant applied for asylum at the United Nations High Commission for Refugees (UNHCR) in Kurdistan and was recognised as a refugee. He was advised that he would be sent to a safe country in due course. He claimed that this did not happen because Saddam Hussein's regime refused to offer any assistance to UNHCR refugees. He therefore decided to leave Iraq and go to Turkey. It appears that he arrived in Turkey in May 2002.
After he arrived in Turkey the appellant presented himself to the UNHCR in Van city. He was again recognised as a refugee. (From information lately received from UNHCR it is clear that this second recognition occurred in May 2003.) UNHCR again undertook to send him to a safe country. Despite this, the appellant remained in Turkey for a further 3 years. He claimed that after he had been accepted by the UNHCR as a refugee he was sent to Kutahya city in western Turkey and was not permitted to leave. In 2006, frustrated by UNHCR's inaction, the appellant and 20 other refugees protested in front of their offices. The police arrested and detained them. After some 3 months the appellant was served with a court summons to appear in court. He claimed that he was frightened to appear in court and so went into hiding until he managed to leave Turkey and travel to the United Kingdom.
After arriving in the United Kingdom the appellant had been in contact with his family in Iran. He learned that the authorities had visited his home on a number of occasions and that his father had been taken to the Intelligence Office in Bukan and had been questioned about the appellant's whereabouts. He claimed that his parents had been "expelled" from Iran to Iraq because of his involvement with KDPI. They remained there for only 2 days, however, and were then permitted to return to Iran.
During his interview on 20 September 2007, the appellant said that after joining the KDPI he carried out activities for them in the organising department of the party. He also claimed that he had gone back to Iran in 1993, 1994 and 1995 in order to recruit for KDPI and for propaganda purposes. He and others who accompanied him were attacked by Iranian security forces with rockets and mortars.
He said that he was in charge of 15–20 freedom fighters within the KDPI. On their trips to Iran, they would stay about 3 months at a time. They carried weapons in case they were involved in fighting with Iranian troops. In the event they did not engage in fighting although they were on occasions attacked by cannons and mortars. The appellant also told his interviewers that he had discovered in 2002 that his father had been imprisoned by the Iranian authorities but he did not know when.
The appellant's claim for refugee status was refused by the Secretary of State on 27 September 2007. That initial refusal was withdrawn, however, while further inquiries were made of UNHCR. Before the second decision on his application was made, another statement dated 30 November 2007 was submitted on the appellant's behalf. This purported to deal with some of the matters raised in the first refusal letter.
In the second statement the appellant said that he had not referred to his having returned to Iran in 1993–1995 because the solicitors who had acted for him at the time that the first statement was compiled had prepared it on the basis of questions that they had put to him and the answers that he had given. The question of his having returned to Iran had not been raised in this exchange.
The appellant also said in the second statement that he had been a peshmerga between 1992 and 1994. (A peshmerga or peshmerge (in Kurdish: Pêsmerge) is the term used by Kurds to refer to armed Kurdish fighters. Literally meaning "those who face death" the peshmerga forces of Kurdistan have been in existence since the advent of the Kurdish independence movement in the early 1920s.) During this time the appellant also wrote articles and poetry in support of the peshmerga cause, he said. He also described the guns which he had been trained to use and claimed that he had worked as a radio operator and had trained other peshmerga. He alleged that he had been on a mission with one Mohammed Armandzadeh in about 1995. Mr Armandzadeh had been arrested in the course of the mission and had later been executed.
Mr Armandzadeh's brother, Kamaran, was a friend of the appellant and in his second statement the appellant claimed that he and Kamaran had lived together in Iraq. Kamaran had worked as a paramedic in a hospital run by KDPI. It was claimed that the two had worked together for "some years" or for "3–4 years".
In his second statement the appellant claimed that the only document that he had taken with him when he left Iraq was his certificate of refugee status that had been issued by UNHCR. He said that he had left all other documents with a Dr Maraf Khazadar. Even after he had been refused asylum in the United Kingdom, he did not ask Dr Khazadar to send the documents to him. He explained that he did not do so because, "culturally, [Dr Khazadar] is a respected elder gentleman, [and] it would not be appropriate to ask such a favour of him." The appellant claimed that after he had been refused asylum on the second occasion, he knew that one of his sisters was living in Iraq and he asked her to obtain the documents for him. The documents included a card with a photograph of the appellant which, he claimed, showed that he was a security guard at a KDPI Congress; a second card with his photograph purporting to show that he was a trainee in the Political and Military School of the KDPI; and a document which stated that the appellant was a former peshmerga for KDPI. These documents and their late production played an important part in the determination of the appellant's appeal against the refusal of asylum for reasons that I will consider below.
The second refusal letter was issued on 5 November 2008. The appellant's account was deemed to be incredible. It was considered unlikely that the appellant would have been sought by the Iranian authorities as a result of the car spraying incident in Iran. His story was that he had been observed engaging in what was thought to be a low level of vandalism. It was not accepted that this would result in his acquiring a noteworthy profile in Iran or that he would be at significant risk throughout Iran. The claim that the appellant's parents had been expelled from the country 2 years later in 1994 as a result of his activities was considered not to be believable. If the authorities had positively identified the appellant, it would not have taken them 2 years to take action against his parents. Nor would such action have taken the form of such a brief period of exile. Moreover, if they had been exiled while the appellant was active as a peshmerga, it was thought unlikely that they would have returned to Iran. It was also noted that, despite the appellant's claims that the Iranian authorities were aware of his activities as a peshmerga with the KDPI, his family had not received...
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