Upper Tribunal (Immigration and asylum chamber), 2024-03-13, UI-2023-004915
| Appeal Number | UI-2023-004915 |
| Hearing Date | 29 January 2024 |
| Date | 13 March 2024 |
| Published date | 28 March 2024 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Case No: UI-2023-004915
First-tier Tribunal No: PA/54627/2022
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2023-004915 |
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First-tier Tribunal No: PA/54627/2022 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 13th of March 2024
Before
UPPER TRIBUNAL JUDGE BEN KEITH
Between
AG
(ANONYMITY ORDER MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Azmi, Counsel
For the Respondent: Ms Isherwood, Senior Home Office Presenting Officer
Heard at Field House on 29 January 2024
Order Regarding Anonymity
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.
No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.
DECISION AND REASONS
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This is an appeal against the decision of First-Tier Tribunal Judge Richards (“the Judge”) promulgated on 11 October 2023. By that decision the Judge rejected the Appellant’s appeal on asylum and human rights grounds.
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The Secretary of State for the Home Department (“SSHD”) rejected the Appellant’s asylum claim on 20 October 2022.
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The Appellant is an Iranian national of Kurdish Ethnicity, born in 2004. He entered the UK on 2 March 2021 and claimed asylum on arrival.
Grounds of Appeal
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The grounds of appeal are not clearly particularised but are best summarised by the grant of permission. In short, the Appellant argues that the judge failed to properly assess the evidence and to assess it in light of the Country Guidance cases.
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In granting permission on 19 December 2023 UTJ Sheridan said the following:
“1. The judge found that it was “inherently unlikely” that the appellant would flee Iran just because his friend had been arrested and might have given his name to the authorities. Given the “hair-trigger approach” of the authorities, as described in HB (Kurds) (illegal exit: failed asylum seeker) CG [2018] UKUT 430 (IAC), this was arguably an irrational finding and/or a finding that was inconsistent with Country Guidance and objective evidence about the level of risk faced by those suspected by the authorities of Kurdish political activities.
2. I do not restrict the grounds that can be pursued.”
The Hearing
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At the hearing I asked for submissions in relation to paragraph 4 of the judgment which states (my emphasis):
“Burden and Standard of Proof
4. The burden of proof is on the Appellant. To establish the first ground of appeal, he must show that he has a well-founded fear of persecution to a reasonable degree of likelihood; to establish the second, it is the balance of probabilities.”
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The second ground of appeal before the First Tier was Article 3 of the European Convention on Human Rights. The parties had not pleaded any issues relating to this paragraph however, the case of R v Secretary of State for the Home Department, ex p Robinson [1997] 3 WLR 1162 provides that there remains the power to consider any other point arising from the decision if the interests of justice require. This is such a case.
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The SSHD accepted that given there was no Article 8 appeal in this case and the Judge was only dealing with Article 3 the correct test is that of “real risk” see R(Ullah) v Special Immigration Adjudicator [2004] 2 AC 323, para 24; Saadi v Italy (2009) 49 EHRR 30, para. 140, Soering v UK 11 EHRR 439.
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Reading the judgement as a whole to try a discern if in fact the correct test was applied only compounds the issue. The judge in conclusion states at §19 (my emphasis):
“19. Consequently, I do not find that the Appellant’s account is credible or that any sur place activity is genuine and would put him at risk on return. The Appellant has also failed to demonstrate to the requisite standard that he would be at any risk on his return to Iran.”
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As a result, I find a material error of law as the judge applied the wrong test in relation to Article 3 ECHR.
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In relation to the asylum claim there is only passing reference to the Country Guidance in the judgement, the judge states:
“18. The evidence of the Appellant’s continued interest within the UK in the KDPI and involvement in their activities is also unpersuasive. Nine screenshots over a 4 month period of postings drawn from other channels, posted in a name that could not be associated with the Appellant, seems to me to be wholly inadequate to show that he would be of interest on his return to Iran, even taking account of HB (Kurds) Iran CG [2018] UKUT 430 and XX (PJAK –sur place activities – Facebook) Iran CG.”
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In the judgment there is no analysis of how the evidence of the Appellant fits (or does not fit) within the Country Guidance. In HB (Kurds) (illegal exit: failed asylum seeker) CG [2018] UKUT 430 (IAC) the Upper Tribunal gave detailed Guidance the head note sets out as follows:
(1) SSH and HR (illegal exit: failed asylum seeker) Iran CG [2016] UKUT 308 (IAC) remains valid country guidance in terms of the country guidance offered in the headnote. For the avoidance of doubt, that decision is not authority for any proposition in relation to the risk on return for refused Kurdish asylum-seekers on account of their Kurdish ethnicity alone.
(2) Kurds in Iran face discrimination. However, the evidence does not support a contention that such discrimination is, in general, at such a level as to amount to persecution or Article 3 ill-treatment.
(3) Since 2016 the Iranian authorities have become increasingly suspicious of, and sensitive to, Kurdish political activity. Those of Kurdish ethnicity are thus regarded with even greater suspicion than hitherto and are reasonably likely to be subjected to heightened scrutiny on return to Iran.
(4) However, the mere fact of being a returnee of Kurdish ethnicity with or without a valid passport, and even if combined with illegal exit, does not create a risk of persecution or Article 3 ill-treatment.
(5) Kurdish ethnicity is nevertheless a risk factor which, when combined with other factors, may create a real risk of persecution or Article 3 ill-treatment. Being a risk factor it means that Kurdish ethnicity is a factor of particular significance when assessing risk. Those “other factors” will include the matters identified in paragraphs (6)-(9) below.
(6) A period of residence in the KRI by a Kurdish returnee is reasonably likely to result in additional questioning by the authorities on return. However, this is a factor that will be highly fact-specific and the degree of interest that such residence will excite will depend, non-exhaustively, on matters such as the length of residence in the KRI, what the person concerned was doing there and why they left.
(7) Kurds involved in Kurdish political groups or activity are at risk of arrest, prolonged detention and physical abuse by the Iranian authorities. Even Kurds expressing peaceful dissent or who speak out about Kurdish rights also face a real risk of persecution or Article 3 ill-treatment.
(8) Activities that can be perceived to be political by the Iranian authorities include social welfare and charitable activities on behalf of Kurds. Indeed, involvement with any organised activity on behalf of or in support of Kurds can be perceived as political and thus involve a risk of adverse attention by the Iranian authorities with the consequent risk of persecution or Article 3 ill-treatment.
(9) Even ‘low-level’ political activity, or activity that is perceived to be political, such as, by way of example only, mere possession of leaflets espousing or supporting Kurdish rights, if discovered, involves the same risk of persecution or Article 3 ill-treatment. Each case however, depends on its own facts and an assessment will need to be made as to the nature of the material possessed and how it would be likely to be viewed by the Iranian authorities in the context of the foregoing guidance.
(10) The Iranian authorities demonstrate what could be described as a ‘hair-trigger’ approach to those suspected of or perceived to be involved in Kurdish political activities or support for Kurdish rights. By ‘hair-trigger’ it means that the threshold for suspicion is low and the reaction of the authorities is reasonably likely to be extreme.
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Of particular relevance to this case are (7) to (10) above. The Appellant’s case is that he handed out leaflets on behalf of the KDPI (Kurdish Democratic Party of Iran), attended demonstrations and it was as a result of that activity that his friend was detained. The judge dismissed the whole of the evidence as not credible on the basis of the likelihood that the friend was detained and passing on the Appellant’s name was inherently unlikely, the judge stated:
“17. I have considered all of the evidence of the Appellant, both within his witness statements as well as his oral evidence, in determining whether his account is credible. Even taking account of the Appellant’s limited education and his young age, his account of his activities in Iran is extremely vague....
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