E.s. V. Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lord Burns |
| Judgment Date | 2013 |
| Neutral Citation | [2013] CSOH 174 |
| Court | Court of Session |
| Date | 08 November 2013 |
| Published date | 08 November 2013 |
| Docket Number | P866/13 |
| OUTER HOUSE, COURT OF SESSION | |
| [2013] CSOH 174 | |
| P866/13 | OPINION OF LORD BURNS in the cause E.S. Petitioner; against SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: ________________ |
Pursuer: Winter, advocate; Drummond Miller LLP
Defender: Gill, advocate; Office of the Advocate General
8 November 2013
[1] A procedural first hearing called before me on 11 October 2013. Mr Winter appeared on behalf of the petitioners and Mr Gill on behalf of the respondent. The petitioner challenges the decision of the Upper Tribunal Judge dated 21 February 2013 in refusing permission to appeal from a determination of the First Tier Tribunal (FTT). The respondent has intimated that it would be submitted that the test in Eba v Advocate General 2012 SC UKSC 1 (Eba) is not met in this case.
Background
[2] The petitioner is an Iranian national who entered the United Kingdom illegally in September 2012. He stated to the UK Border Agency that he had left Iran on 15 July 2012 hidden in a lorry and had made his way to the United Kingdom. He made an asylum and human rights claim on the basis that he had a genuine fear for his life in Iran due to his political opinion and his activities as a body builder. The former claim was based on the contention that he and others had been responsible for writing anti-government slogans on walls in his home town. This went on for two or three months until one night in July 2012 when a police car stopped nearby as the petitioner and his associates were engaged in painting walls. This led to a series of events which caused the petitioner to flee from Iran. He had left his ID card and mobile phone in the car which was used to go to the area in question and the next day he learned that the authorities were looking for him. They had been to his house and to the gym where he worked. His father was detained. A friend told him that he and his family were in imminent danger and it was better for him to leave Iran. He then proceeded to do so.
[3] His asylum and human rights claims were refused by the respondent by letter of 16 October 2012. It was found that he was not a credible witness and it was not accepted that he was wanted by the authorities for writing anti-regime slogans. He appealed to the FTT and a hearing took place on 12 December 2012. His claims were rejected by the judge on the basis that he had not established that his experiences were credible. The judge rejected his evidence on all crucial matters. It was found that the petitioner had not established that he had been persecuted in the past or would be in the future by the authorities in Iran and thus he had no well-founded fear of persecution for a refugee convention or other reason if returned to Iran. Further, he was not considered to be eligible for humanitarian protection since he had failed to show substantial grounds for believing that, if removed to Iran, he would face a real risk of suffering serious harm. At paragraph 45 of the Determination it was specifically found that the petitioner failed because his claims regarding his experiences in the Iran were not true.
[4] The petitioner applied for permission to appeal against that determination. The permission was refused at FTT level and the petitioner proceeded to apply for permission to the Upper Tribunal direct. It was contended that the FTT had failed to consider the relevant country guidance cases and in particular that there was a failure to consider "the reaction of the Iranian authorities" to the appellant on return when he is questioned due to his method of leaving Iran, the time spent abroad and the method of his return as a failed asylum seeker. There was a real risk the authorities would learn of the appellant's asylum claim based, as it was, on his political opinions and his opposition to the regime. The appellant is not expected to lie about his asylum claim. It was further argued that the Tribunal failed to consider that, even if the appellant passed through the airport, he would not be able to live openly in expressing anti-government views in light of the authorities' attitude towards those opposed to the regime. The Tribunal had erred by failing to consider that it was the reason "in the mind of the persecutor for inflicting that persecutory treatment" that was of relevance. Reference was made to H J (Iran) v Secretary of State for Home Department 2011 1 AC 596 and R T (Zimbabwe) v Secretary of State for Home Department 2013 1 AC 152.
[5] The Upper Tribunal judge refused permission to appeal by decision dated 21 February 2013. In paragraph 2 of the reasons it is stated:
"The appellant claimed that he dislikes the regime in Iran, put up opposition posters, was discovered and fled the country. The FTTJ rejected this claim in its entirety and the grounds do not raise any challenge to his reasons for doing so. The facts as found, therefore, are that the appellant does not show that he was opposed to the regime in anyway. The FTTJ found correctly at (43) that the case of SB (Risk On Return- Illegal Exit) Iran C G 2009 UK AIT 00053 indicated that the appellant would not be at risk on return as a failed asylum seeker even if he left illegally. The suggestion otherwise in the grounds at (i) is misconceived. The grounds at (i) also state that the FTTJ failed to refer to country guidance but no country guidance case is stated. There is no country guidance case that suggests that this appellant, having been comprehensively found to have lacked credibility, would face a risk on return".
Reason 3 states:
"The grounds at (i) also refer to H J (Iran) and R T (Zimbabwe) but these cases are not relevant where the appellant has not shown himself to harbour any anti-government sentiments whether kept discretely to himself or not....
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