SB v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeSenior Immigration Judge Storey
Judgment Date06 May 2009
Neutral Citation[2009] UKAIT 53
CourtAsylum and Immigration Tribunal
Date06 May 2009

[2009] UKAIT 53

Asylum and Immigration Tribunal

THE IMMIGRATION ACTS

Before

SENIOR IMMIGRATION JUDGE Storey

IMMIGRATION JUDGE Brunnen

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

For the Appellant: Mr Cole of Cole & Yousaf Solicitors

For the Respondent: Miss C Johnstone, Home Office Presenting Officer

SB (risk on return-illegal exit) Iran CG

  • (i) Events in Iran following the 12 June 2009 presidential elections have led to a government crackdown on persons seen to be opposed to the present government and the Iranian judiciary has become even less independent. Persons who are likely to be perceived by the authorities in Iran as being actively associated with protests against the June 12 election results may face a real risk of persecution or ill treatment, although much will depend on the particular circumstances.

  • (ii) Iranians facing enforced return do not in general face a real risk of persecution or ill-treatment. That remains the case even if they exited Iran illegally. Having exited Iran illegally is not a significant risk factor, although if it is the case that a person would face difficulties with the authorities for other reasons, such a history could be a factor adding to the level of difficulties he or she is likely to face.

  • (iii) Being a person who has left Iran when facing court proceedings (other than ordinary civil proceedings) is a risk factor, although much will depend on the particular facts relating to the nature of the offence(s) involved and other circumstances. The more the offences for which a person faces trial are likely to be viewed as political, the greater the level of risk likely to arise as a result. Given the emphasis placed both by the expert report from Dr Kakhki and the April 2009 Danish fact-finding report's sources on the degree of risk varying according to the nature of the court proceedings, being involved in ongoing court proceedings is not in itself something that will automatically result in ill-treatment; rather it is properly to be considered as a risk factor to be taken into account along with others.

  • (iv) Being a person involved in court proceedings in Iran who has engaged in conduct likely to be seen as insulting either to the judiciary or the justice system or the government or to Islam constitutes another risk factor indicating an increased level of risk of persecution or ill treatment on return.

  • (v) Being accused of anti-Islamic conduct likewise also constitutes a significant risk factor.

  • (vi) This case replaces AD (Risk-Illegal Departure) Iran CG [2003] UKAIT 00107.

DETERMINATION AND REASONS
1

The appellant is a national of Iran born on 22 June 1971. On 9 January 2007 the respondent decided to remove him as an illegal entrant from the United Kingdom having refused to grant him asylum. His appeal came before Immigration Judge (IJ) Hague who in a determination notified following a hearing on 23 February 2007 dismissed his appeal. He successfully obtained an order for reconsideration and in a decision dated 7 September 2007 Senior Immigration Judge (SIJ) Lane found he had materially erred in law: see Appendix A. When his case came before Immigration Judge Foudy as second-stage reconsideration she again dismissed his appeal. The appellant obtained permission to appeal to the Court of Appeal, Laws LJ remitting it by consent back to the Tribunal. The statement of reasons for disposal by consent states at para 5:

“5. The Respondent considers that the Tribunal made a material error of law by re-opening the issue of the Appellant's credibility despite the findings of the first Immigration Judge (ground 1). Further, or in the alternative, the respondent considers that the Tribunal made a material error of law by not considering the medical evidence submitted by the Appellant when assessing the Appellant's oral evidence and credibility (ground 2(ii)). Accordingly the parties agree that this matter should be remitted to the Tribunal to consider the appellant's case with respect to the assessment of risk on return to Iran in light of the positive credibility findings of the first Immigration Judge, which the parties agree shall stand.”

2

The positive credibility findings here referred to were those made by the first IJ, IJ Hague. As set out by him at para 7 of his determination, they were as follows:

“7. The appellant's account can be summarised thus. He began military service in 1989 and was posted to serve in a Sepah unit. His duties involved guarding political prisoners. The sound of the ill treatment of prisoners was distressing to him and he asked his superior officer, Haji Karimi, for transfer to other duties. The refusal resulted in a scuffle between the two in which the officer's nose accidentally got broken. The appellant was court martialed, sentenced to four months custody and given an extra ten months military service. During the period of his detention he was subjected to beatings and interrogations. On release he was sent to serve out his time at the Sepah Yekum headquarters in Ahwaz. Haji Karimi who was still his commanding officer was vindictive and ensured that the appellant had extra duties and restricted leave. Towards the end of the period of military service a building that the appellant was guarding was burnt and the files therein destroyed. He was arrested and held without charge for eight months, before being given bail upon his father persuading a neighbour to lodge the deeds of his house as surety. On release the Appellant went on to complete his military service and then was discharged but he was not issued with a “completion card”. As a consequence of this he has been unable to obtain a driving licence, to take work in nationally owned companies, to marry or to open a bank account. The arson case has never been brought to court and he remains on bail. In consequence the neighbour's house deeds remain as surety in the court file. The neighbour has died and his children wish to divide the estate up, but are unable to do so and have been putting pressure upon the Appellant to get the deeds released. The Appellant has been unable to do so as the courts insist that it is a matter for the Sepah and the Sepah insist that it is a matter for the court. On 7/10/06 the Appellant went to court with his neighbour in order to demonstrate to him that he was doing everything that he could. The judge told him that he had no power and that it was a matter for the Sepah, and the appellant responded by telling the judge that although he professed to do justice it was only a lie. That night the authorities came to his home when he was out. They told his mother that he must surrender to them as he is guilty of anti Islamic conduct. He decided to flee the country fearing the treatment the he would receive.”

3

The medical evidence referred to in the statement of reasons consisted in a report dated 19 December 2007 by Dr Michael Scott who is an established expert in the assessment and treatment of patients with post-traumatic stress disorder (PTSD). His report concluded that the appellant was suffering from severe PTSD and that this was a consequence of torture in Iran. There was also a letter from Miss V C Lees, a Consultant in Hand and Plastic Surgery, dated 21 December 2007. She stated that the appellant had alleged he was tortured in Iran 13 years ago, sustaining a deep laceration to the base of the palm affecting his ulnar nerve.

4

In addition to the medical evidence from late 2007 the parties had adduced a considerable number of background documents dealing with conditions in Iran, including a 1 November 2007 report by Gozaar (Freedom House) entitled “The Judiciary: A stronghold of Authoritarianism”, and a Human Rights Watch World Report 2007: Iran, dated 11 January 2007. There was also produced very late in the day, on 1 May 2009, an expert report from Dr Mohammad M H Kakhki. Subsequent to the hearing we sent a memorandum to the parties dated 24 July 2009 pointing out that in view of recent political events in Iran we wanted further evidence and/or submissions on (i) the likely impact on the appellant's case of recent events in Iran and (ii) the issue of whether an Iranian returnee will currently face a real risk of serious harm merely by virtue of being someone who left the country illegally or being someone who faces court proceedings and/or judicial punishment.

5

At the hearing itself Miss Johnstone had submitted that the Tribunal should confine itself to the evidence that was before IJ Hague, as the appellant had not lodged any Rule 32(2) notice under the Asylum and Immigration Tribunal (Procedure) Rules 2005 and in any event the expert report had not been served in accordance with Tribunal directions. Mr Cole for the appellant submitted that we should admit all of the evidence that had been produced. He apologised for the late production of the expert report, which was due to delay on the part of the expert.

6

Following those submissions we told the parties that we would delay our final decision on admission of post-hearing evidence until we were determining the case, but would want submissions from the parties on the further evidence. We briefly adjourned to give Miss Johnstone time to consider the expert report.

7

We have decided to admit all the post-hearing evidence. It is clear from the Statement of Reasons for disposal by consent by the Court of Appeal that the parties agreed that specific regard should be had to the medical evidence. It is also clear from the decision of SIJ Lane finding a material error of law that the Tribunal was concerned that a decision on risk on return be made in the light of the latest evidence about country conditions, and indeed it would be contrary to Ravichandran principles not to decide an asylum appeal in the light of evidence on conditions in a country currrently: see Saber...

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