Upper Tribunal (Immigration and asylum chamber), 2016-04-19, AA/06274/2015


Appeal Number: AA/06274/2015


Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number AA/06274/2015


Heard at Field House

Decision & Reasons Promulgated

On 26th February 2016

On 19th April 2016




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For the Appellant: Ms N Mallick Counsel

For the Respondent: Mr S Staunton Home Office Presenting Officer


  1. The Appellant is a national of Iran born on [ ] 1966. On 12th June 2001 the Appellant was granted indefinite leave to remain with a grant of status (asylum).

  2. On 28th May 2014 the Secretary of State notified the Appellant of their intention to withdraw his refugee status on the grounds that they believed that he had voluntarily re-availed himself of the protection of Iran. Thereafter the Appellant’s previously instructed solicitors submitted representations on 13th January 2015 and 11th February 2015. On 25th March 2015 following careful consideration of those representations the Secretary of State decided that compelling reasons had not been provided as to why the Home Office should not cease the Appellant’s status and the cessation of refugee status letter was issued.

  3. The Appellant appealed and the appeal came before Judge of the First-tier Tribunal Morron sitting at Taylor House on 24th September 2015. In a decision promulgated on 9th October 2015 the Appellant’s appeal was allowed and the Appellant was granted anonymity. On 27th October 2015 the Secretary of State lodged Grounds of Appeal to the Upper Tribunal. On 9th November 2015 First-tier Tribunal Judge Davidge refused the application for permission to appeal. On 25th November 2015 renewed Grounds of Appeal were lodged. Those renewed grounds were identical to the original.

  4. On 9th December 2015 Upper Tribunal Judge Kekic granted permission to appeal. Judge Kekic noted that the Respondent’s case was that having found the Appellant had a fear of criminal gangs and not the authorities i.e. a non-Convention reason the judge erred in finding that the Appellant remained a refugee. It was argued that the judge also erred in failing to consider whether the Appellant would be able to seek the protection of the authorities against those gangs and whether relocation would be an option. She considered the grounds to be arguable and granted permission.

  5. No Rule 24 response appears to have been served on behalf of the Appellant. Whilst noting that this is an appeal by the Secretary of State for the purpose of continuity throughout the appeal process Mr AN is referred to herein as the Appellant and the Secretary of State as the Respondent. The Appellant appears by his instructed Counsel Ms Mallick. Ms Mallick has served a skeleton argument dated 25th February 2015 in support of the appeal which I have given due consideration to. The Secretary of State appears by her Home Office Presenting Officer Mr Staunton.

  6. The Appellant personally did not attend. Correspondence has been produced showing that the Appellant has a heart condition and that he is unable to attend. A prior application had been made seeking an adjournment but this had been refused on the basis that the Appellant did not need to be present at this hearing. I further note that there is a change of solicitors on behalf of the Appellant, his present solicitors going on the court record on 17th February. It is on that basis that the appeal comes before me to determine whether or not there is a material error of law in the decision of the First-tier Tribunal Judge.


  1. It is the contention of the Secretary of State that the Immigration Judge misdirected himself by finding the Appellant to be a refugee despite his fear of return to Iran being for a non-Convention reason. Mr Staunton considers the nub of the appeal to be in paragraphs 26 and 27 of the Immigration Judge’s decision. He points out it is noted by the Immigration Judge at paragraph 27 that the Appellant sought Facilitated Early Release in October 2009 and wished to return to Iran to assist his brothers who had been arrested. The Secretary of State therefore contends that at that point in time the Appellant did not express a fear of returning to Iran for any reason and therefore was not outside his country of nationality due to a well-founded fear of persecution. The judge accepts that the Appellant changed his mind after speaking to his mother and the risk he faced on return. He submits that the judge goes on to state that “I further find that the reason for his change of mind is more likely to have been his fear of the Iranian mafia than of the Iranian authorities”. He consequently submits that the judge had found that the Appellant was a refugee for a reason not covered by the Refugee Convention but for fear of criminal gangs and as a result the Appellant should not be classed as a refugee if their fear is for a reason not covered by the Refugee Convention. He further submits that the judge has failed to consider what protection the Appellant could get from the State and his ability to relocate away from those that might wish to harm him. He emphasises that the sole thrust of the Secretary of State’s appeal is that there is no Convention reason now outstanding preventing the Appellant’s return to Iran. He asked me to find a material error of law and to remit the matter to the First-tier for re-hearing.

  2. Ms Mallick takes me to her skeleton argument. This is a very detailed document which I have considered and it is inappropriate to recite the content therein in detail. She starts by reminding me that at the hearing before the First-tier Tribunal Judge both parties were represented and that this is a question of whether refugee status can continue or whether it can be taken away. She points out that this is not an asylum appeal. She takes me to the decision of the First-tier Tribunal Judge and reminds me the legal issue is set out therein at paragraph 3. That is: Article 1C(1) of the Convention and Protocol relating to the Status of Refugees which states as follows:

“This Convention shall cease to apply to any person falling under the terms of Section A if ...

(1) he has voluntarily re-availed himself of the country of his nationality.”

The burden of proof lies with the Appellant to prove, on the balance of probabilities, that Article 1C(1) does not apply him.

  1. She points out that Article 1C(1) requires an affirmative action from the Appellant and that it would be necessary for the Appellant to re-avail himself of his nationality and that this did not happen. She submits that the judge rightly focused on what the Appellant actually did pointing out that that shows clearly that the Appellant was not re-availing himself of his country of nationality.

  2. She submits that that is why the Secretary of State wrote in the terms that he did but that it was found that the Appellant did not have an Iranian passport. She submits that there was no evidence for the Secretary of State allowing him to conclude that the Appellant would re-avail himself of his Iranian nationality.

  3. Ms Mallick submits that in granting permission UTJ Kekic focused on the wrong question. She takes me to the objective evidence of the UNHCR Handbook at paragraph 48 therein which states that possession of a passport cannot always be evidence of loyalty on the part of the holder or as an indication of the absence of fear and that the mere possession of a valid national passport is not a bar to refugee status. Further any national passport or an extension of its validity under certain exceptional circumstances would not involve terminating refugee status; for example whereas the holder of a national passport would not be permitted to return to the country of his nationality without specific permission. She consequently submits that what has happened is not such that would constitute re-availment and thereafter refers me to paragraph 128 of the handbook which suggests that nationality must be expressly or impliedly accepted before cessation under Article 1C(2) would be appropriate and that the guidelines on the application of cessation clauses suggest that the mere possibility of reacquiring the lost nationality by exercising a right of option is not sufficient to put an end to refugee status. She therefore submits that the Appellant did not nothing to re-avail his status. The Secretary of State accepts that the burden is on the Appellant. Thus she contends he has done nothing to re-avail himself of his status and that the error that the Secretary of State has fallen into and Judge Kekic is...

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