SSH (First Appellant) v The Secretary of State for the Home Department

Both appellants are nationals of Iran. Their appeals against decisions of the First-tier Tribunal have been listed before us to enable us to give country guidance on the issue of risk on return to Iran for a person who left that country illegally, is a failed asylum seeker and is undocumented. As we set out below at paragraphs 6-8 a person would not be returnable unless documented to the extent described there, but they would not be documented in the sense of possessing a passport.

The first appellant, SSH, is of Kurdish ethnicity. He claims to be at risk on return on the basis that he would be seen as a member of PJAK (Party for a Free Life in Kurdistan) and for having weapons in his house. The judge concluded that his account was fabricated and it was rejected in its entirety.

The second appellant, HR, is also of Kurdish ethnicity. He claimed to be at risk on return on account of his support for the Kurdish cause, distributing books and leaflets to other like-minded Kurds. He became afraid for his own safety when a friend of his was detained by the authorities in Iran for taking part in similar activities. The judge accepted that he was politically aware and in all probability a supporter of the Kurdish cause in general terms but was not satisfied that there was any evidence of him being a member of any particular political party. Otherwise his claim was found to lack credibility including a finding that he was most unlikely to be identified by reference to his internet activity.

We had an expert report and detailed oral evidence from Dr Kakhki, who had given evidence previously in the country guidance case of SB (risk on return – illegal exit) Iran CG [2009] UKAIT 00053. We have summarised that evidence separately as we also have the detailed and careful submissions from the representatives, for which we are grateful. All three members of the panel have contributed to the writing of this decision.

As set out above the issues in this case are risk on return on account of illegal exit from Iran, being a failed asylum seeker and being undocumented. Clearly we must assess risk in relation to these matters both separately and cumulatively. In asylum appeals the standard of proof requires the appellant to show a ‘real and substantive risk’ or a ‘reasonable degree of likelihood’ of persecution for a Refugee Convention reason ( R v Secretary of State for the Home Department ex parte Sivakumaran[1988] AC 958: including the need to show that there is a real, as opposed to a fanciful risk of future events happening ( MH (Iraq)[2007] EWCA Civ 852.

The issues in respect of a lack of documentation are not so much matters which would lead to a risk on return (other than in respect of an example to which we shall come subsequently) but are rather to do with the process through which a person who is a failed asylum seeker and/or left illegally would have to go in order to return to Iran.

It is clear from Dr Kakhki's evidence that the situation may be different for a person who left Iran lawfully and a person who left unlawfully, but in either case such a person who finds himself undocumented while in the United Kingdom would have to engage with the same process. At paragraph 12 of Dr Kakhki's report in HR's case it is said that, according to the passport law and related official guidelines, in order to enter Iran a national should be in possession of a passport, travel document or a “barge obour”, the latter being a temporary travel document issued by the embassy and valid only for twenty days and for just a single entry. This is in effect a laissez passer of the kind which a number of countries employ as a temporary travel document, and we shall refer to it subsequently in this decision as a laissez passer. Dr Kakhki goes on to say that in order to obtain a laissez passer an application form would have to be completed and there would have to be submitted original photographic proof of identity which should be in the form of a birth certificate and/or a national identity card, submission of a ticket or a booking confirmation showing the date of intended return to Iran and a letter from the Home Office explaining the person's status within the United Kingdom. Taken at its highest, this would entail informing the Iranian authorities that the person was a failed asylum seeker rather than simply a person without leave to remain in the United Kingdom, but we accept that the former status would be likely to be revealed by the person since they cannot be expected to lie.

Dr Kakhki had a conversation with an official at the Iranian Consulate in January 2016 from which it is clear that the applicant must first prove that he or she is an Iranian national and the laissez passer will not be issued simply on the basis of what a person says about their national identity and nationality. A person in the position of these appellants who lacks a passport and can therefore not show that they left Iran legally would be asked and would have to say why they had left illegally. Whether the Iranian system would be able to verify the claim of a person who simply said they had lost their passport and they had left lawfully is not a matter on which we had evidence and we do no more than mention the point in passing. The case proceeded on the basis that the authorities would be, or would be made aware of the illegal exit from Iran by both appellants. It seems also, from Dr Kakhki's evidence, that when the request for a laissez passer is made the embassy will carry out security checks concerning the kind of activities the particular person had been involved in while out of Iran. The outcome of such checks would not lead to refusal of a laissez passer but such information would be passed on to the authorities in Iran. It can be seen from the Danish Refugee Council Report of 2008, at tab 10 of the Secretary of State's bundle, at page 281 of the bundle, that if a person is from an ethnic or religious minority background or has engaged in opposition or political activities the consulate or embassy might not issue them with a travel document. This contrasts with Dr Kakhki's evidence that the embassy is obliged to issue a travel document if the person can establish Iranian nationality. This view seems preferable, but in any event the issuing of a travel document would not mean that they would not potentially face problems with the Iranian authorities on return to Iran. In the cases with which we are concerned in this country guidance decision, that kind of background would be lacking, and consequently there would be no reason why a laissez passer would not be granted on application by an undocumented Iranian, (assuming they can prove their nationality), who had left Iran illegally and was a failed asylum seeker.

Thereafter there are said to be two stages at which a person potentially faces difficulty. The first, which we shall consider under this heading, is the matter which was emphasised in particular by Mr Drabble QC in his submissions, that being the risk at the time of questioning on return to Iran. It is clear from Dr Kakhki's evidence that a person who returns to Iran on a laissez passer will be questioned. We accept that this is likely to be the case. The authorities will have been notified of the basis upon which the person has obtained the laissez passer and, it was argued by Mr Drabble, the questioning would not be cursory but would be lengthy and interrogatory and that interrogation would be likely to involve techniques amounting to persecution and/or breach of Article 3. Dr Kakhki also suggested that the Iranian authorities at the airport hold a ‘wanted list’ which is checked on arrival, but he had no evidence of this, and accepted that the list was a confidential document, to which he has no access. We consider that the evidence does not establish that a person returned on a laissez-passer would be on a wanted list.

The other matter, which we consider in detail below under a separate heading, is that of risk of prosecution, imprisonment and as a consequence ill-treatment as a consequence of being a person who left illegally and/or is a failed asylum seeker.

On the issue of risk in the course of initial questioning and detention, Mr Drabble drew our attention to several issues addressed in the...