Upper Tribunal (Immigration and asylum chamber), 2016-01-12, DA/01227/2014
| Jurisdiction | UK Non-devolved |
| Date | 12 January 2016 |
| Published date | 09 September 2016 |
| Hearing Date | 04 January 2016 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | DA/01227/2014 |
Appeal Number: DA/01227/2014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/01227/2014
THE IMMIGRATION ACTS
|
Heard at Field House |
Decision and Reasons Promulgated |
|
On 4 January 2016 |
On 12 January 2016 |
|
|
|
Before
UPPER TRIBUNAL JUDGE SMITH
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
MR A R N
[ANONYMITY DIRECTION MADE]
Respondent
Representation:
For the Appellant: Mr Duffy, Senior Home Office Presenting Officer
For the Respondent: Mr K Smith, Legal Representative
Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
An anonymity direction was made by the First-tier Tribunal. As a protection claim, it is appropriate to continue that direction.
DECISION AND REASONS
Background
-
This is an appeal by the Secretary of State for the Home Department. For ease of reference, I refer below to the parties as they were in the First-Tier Tribunal albeit that the Secretary of State is technically the Appellant in this particular appeal.
-
The Appellant is a national of Iran. He arrived in the UK on 14 November 1978 with leave as a visitor which was subsequently extended as a student. He was then granted leave to remain as a spouse but following the breakdown of his marriage he was refused indefinite leave to remain. He originally claimed asylum in 1984 but that was refused and his appeal rejected. Following convictions for drug offences, he was made the subject of a notice of liability to deport but the Respondent did not pursue that action at the time since, as a result of the drug convictions, the Appellant might face disproportionate punishment on his return to Iran. The deportation order was therefore revoked. The Appellant was granted indefinite leave to remain in 1993. He continued to commit drugs offences and was the subject of further convictions in 1992 and 2003. He was convicted in 2012 of having an offensive weapon and wounding with intent to commit grievous bodily harm. In all, the Appellant has committed 23 offences for which he has received 12 convictions. As a result of this latest offence, he was made the subject of automatic deportation action. The signed deportation order and a decision that section 32(5) of the UK Borders Act 2007 applies to him were served in June 2014. It is that decision which is the subject of this appeal.
-
The Appellant’s appeal was originally allowed on Article 8 grounds but dismissed on protection grounds in a decision promulgated on 17 November 2014. There was an appeal by the Respondent against that decision and a cross-appeal by the Appellant in relation to his protection claim. In a decision dated 5 March 2015, the President of the Upper Tribunal found that there was no error of law in the previous decision allowing the appeal on Article 8 grounds with the consequence for my decision that the Appellant has already succeeded on those grounds and will presumably need to be granted some form of leave on that basis. Removal is not therefore in prospect. However, the President found that there was an error of law in the decision dismissing the Appellant’s appeal on protection grounds. The Appellant pursues his appeal in relation to the protection claim to determine whether he is entitled to status as a refugee. The President remitted the protection claim to the First-Tier Tribunal. That culminated in the decision under challenge which is that of First-Tier Tribunal Judge Britton promulgated on 20 May 2015 (“the Decision”).
-
The Respondent sought permission to appeal the Decision on the basis that the Judge misdirected himself in law in finding that the Appellant would be at risk on return to Iran. The Respondent asserts that the Judge erred by failing to apply the relevant case law correctly, failing to provide adequate reasons for the Decision including failure to engage with or provide reasons for departing from the findings of the earlier Tribunal which dismissed the asylum claim in 1987, and failing to properly consider the evidence.
-
Permission to appeal was granted by Upper Tribunal Judge Clive Lane in a decision dated 4 August 2015 on the basis that the Judge’s reasons for accepting the Appellant’s account as true and accurate and his consequent assessment of risk on return were arguably inadequate. The matter comes before the Upper Tribunal to determine whether the First-tier Tribunal Decision involved the making of an error of law.
Submissions
-
Mr Duffy relied on the grounds. He directed my attention to [31] to [36] of the Decision. He submitted in particular that the case law did not show that the Appellant would be at risk on return to Iran as a result of his convictions. Those were not convictions in Iran to which the case of SB (Risk on Return: Illegal Exit) Iran CG [2009] UKAIT 00053 might be relevant. That case talks of criminal convictions as the basis of risk but that relates to convictions in Iran not in the UK. The Respondent would not identify the Appellant as a convicted criminal. In response to a question from me concerning the impact of HJ (Iran) v Secretary of State for the Home Department [2011] 1 AC 596 and RT (Zimbabwe) v Secretary of State for the Home Department [2012] UKSC 38, Mr Duffy submitted that even if the Appellant were identified as a convicted criminal, that did not mean that he would be at risk on that account.
-
Mr Smith relied on his Rule 24 response. He submitted that there was no error of law in the Decision. The Judge made a clear finding that the Appellant’s criminal convictions some of which related to drugs and were associated with alcohol abuse and his other conduct including sexual relations outside marriage would be seen by the regime as amounting to anti-Islamic conduct. The Respondent’s grounds did not engage with what would happen to the Appellant on return. He would be returned on an emergency travel document because he had no exit stamp in his passport as he had lost his passport on which he travelled. The headnote at (3) and (4)(iii) of BA (Demonstrators in Britain: Risk on Return) Iran CG [2011] UKUT 36 (IAC) makes clear that the authorities would therefore take an interest in how the Appellant left Iran and on what visa. The Appellant left Iran when the Shah was still in power. The fact that he has no passport issued after the Revolution would also attract attention. As a result, he would be questioned. Following the decision in RT (Zimbabwe) he could not reasonably be expected to lie about his convictions or his views of the current regime. The authorities would thereby be aware of his convictions, the circumstances of those convictions and his views of the regime. Those factors would place him at risk.
-
In reply, Mr Duffy accepted that there were factors in this case which might lead the authorities to interview the Appellant on return to Iran but he continued to submit that even if the convictions were disclosed those would not lead to a risk. Even if the convictions and the circumstances of those convictions were seen as anti-Islamic conduct, there would not be a risk on that account.
-
I reserved my decision in relation to whether there is an error of law in the Decision and indicated that I would give my decision and reasons in writing which I now go on to do. Both parties agreed that if I were to find an error of law, I could go on to re-make the Decision on the evidence before me without a further hearing as the facts were accepted and provided I did not consider that further oral evidence was required.
Decision and reasons
-
In his decision dated 5 March 2015, the President set out the basis on which he found an error of law in the previous First-Tier Tribunal decision as follows:-
“[3] The first ground relates to the sustainability of the Judge’s assessment that the Appellant’s asylum claim was lacking in credibility by virtue of its timing. The burden of the Appellant’s case is that there is no tenable basis for this assessment and, further, that it disregards the case made by him in response to the Form ICD/0350/AD questionnaire accompanying the “minded to deport/one stop warning” letter sent on behalf of the Secretary of State, together with the Appellant’s letter which accompanied his response and certain other evidence generated at an earlier stage. The exercise for this Tribunal is to juxtapose all of these sources with the determination of the FtT. Having performed this exercise, I conclude that this ground of appeal is established. There is, in my judgment, a failure on the part of the FtT to acknowledge these various strands of evidence and to assess them accordingly. Had the FtT performed this exercise, I cannot be confident that its adverse credibility assessment of the Appellant would nonetheless have been made. Thus this error...
To continue reading
Request your trial