Upper Tribunal (Immigration and asylum chamber), 2019-05-30, AA/13094/2015
| Jurisdiction | UK Non-devolved |
| Date | 30 May 2019 |
| Published date | 25 July 2019 |
| Hearing Date | 14 January 2019 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | AA/13094/2015 |
Appeal Number: AA/13094/2015
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/13094/2015
THE IMMIGRATION ACTS
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Heard at Royal Courts of Justice |
Decision & Reasons Promulgated |
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On 14 January 2019 |
On 30 May 2019 |
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Before
UPPER TRIBUNAL JUDGE CRAIG
Between
h b
(ANONYMITY DIRECTION made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms E Fitzsimons, Counsel, instructed by Hammersmith & Fulham Law Centre
For the Respondent: Ms S Cunha, Senior Home Office Presenting Officer
DECISION AND REASONS
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This appeal was first before me on 27 July 2018, when in an Error of Law Decision given orally immediately following the hearing which was subsequently sent to the parties in writing, I set out the background to this current hearing. Of necessity, much of what I said in that decision will now be repeated below.
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The appellant is a national of Iran who was born in September 1994. He claims to have entered this country in or around November 2010 when he was 16 years old and he claimed asylum in January 2011. His application for asylum was refused in April 2011 but he was granted discretionary leave as an unaccompanied asylum seeking child until March 2012. He then made an application for further leave on 16 March 2012 when was when he was about 17½. I presume that it had been anticipated that this would be decided when he was an adult in the usual way with such applications.
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Unfortunately by the time of the hearing before me in July 2018, his application and now subsequent appeals had been going on for some years. The respondent took a long time to consider his application, eventually writing to him in October 2015 advising him that his application had been refused and giving reasons for that refusal. Subsequently, he appealed against this decision to the First-tier Tribunal and his appeal was heard by Immigration Judge Barker at Hatton Cross on 24 June 2016 but Judge Barker dismissed his appeal. Then the appellant applied for permission to appeal against Judge Barker’s decision and although he was initially refused permission, he renewed that application before the Upper Tribunal and in a decision dated 10 March 2017 Deputy Upper Tribunal Judge Chapman granted permission to appeal. The error of law hearing then came before Deputy Upper Tribunal Judge Black on 26 April 2017; although she preserved all the adverse credibility findings which had been made by Judge Barker in relation to the account which had been relied on by the appellant as the factual basis for his claim, in a decision promulgated on 5 May 2017, she nonetheless concluded that there had been a material error of law in Judge Barker’s decision, which it is not necessary to go into for the purposes of this decision. The result was that the appeal was remitted back for rehearing at the First-tier Tribunal and that rehearing was before First-tier Tribunal Judge Miles again at Hatton Cross on 22 January 2018.
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In a Decision and Reasons promulgated on 1 February 2018 Judge Miles again dismissed the appellant’s appeal, but the appellant was granted permission to appeal against this decision also, permission being granted by Upper Tribunal Judge Rimington on 12 June 2018. In her very concise reasons, Judge Rimington stated as follows:
“It is arguable that the judge failed to apply the correct standard of proof and arguably erred in law in the speculation of the Iranian government’s approach”.
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She added that “All grounds are arguable”.
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The position was accordingly that there was again an appeal before this Tribunal in respect of a decision which had been made nearly three years earlier in 2015 with regard to an application that had been made three years before then in 2012, so we were then over six years on from when the original application had been made.
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The facts were in a relatively narrow compass. It was now common ground, because the findings of Judge Black to this effect had been retained, that the appellant’s original claim lacked credibility in a number of respects and so that claim no longer formed the basis of the appellant’s current case. Judge Miles made certain findings included amongst which were that if the applicant was the age that he says he is and he exited Iran illegally, one of the consequences of his not being in Iran is that he was not available to undertake military service which had he been in Iran he would have been required to undertake.
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The appellant’s current case, as advanced before Judge Miles, is that he would be at risk on return to Iran because of a combination of factors. The most important is that he would be treated as a draft evader and because of this would be at risk of being imprisoned on return to Iran. This factor is linked with the second factor which is that he had exited that country illegally. The effect of that is, it was argued, that he would almost certainly be questioned on return and would be likely to be interrogated and that interrogation would of itself result in his incarceration for some period of time. He would also, it was argued, be at risk of imprisonment by reason of his evasion of military service. An additional factor that was argued before Judge Miles was that he would be treated more harshly than he otherwise might be (even though the first two factors alone would put him at real risk) because of his Azeri ethnicity. There were other subsidiary factors that were said to evidence the risk the appellant would face on return, such as that his position would be looked at more closely because he would be returning from London which was a known centre of dissent against the Iranian regime.
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I did not have to consider all of these matters in detail save insofar as they were relevant to my consideration of whether there been a material error in Judge Miles’ decision. One of the grounds of appeal was that the judge in effect, as Judge Rimington considered was arguable, failed to apply the correct standard of proof. Although it is right to say that at paragraph 9.1, when considering the burden and standard of proof, the judge stated, correctly, that “the appellant must establish that he will be at real risk of persecution, serious harm under Rule 339C HC 395, or treatment in breach of his protected human rights if he were now to return to Iran”, it was submitted that it is clear from the manner in which he set out his findings that he did not in fact adopt this standard of proof.
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This was particularly said to be the case with regard to what the consequences would be to the appellant by returning as somebody who had left the country illegally and who had thereby evaded his obligations to undertake military service.
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There had been expert evidence submitted on behalf of the appellant by Dr Kakhki and there had also been before the judge the Home Office’s “Country Policy and Information Note – Iran: Military service (October 2016)” which had been issued on 24 October 2016. At paragraph 10.12, having set out certain of the factors involved, Judge Miles said this:
“He is also liable for military service and on the agreed objective evidence and expert report, will be treated as a deserter rather than a person who has evaded such service. In my judgment the background evidence indicates that the more common penalty for such a person would be for him to be required to undertake the period of service that is appropriate for his age rather than for there to be an additional prosecution and resultant risk of prison or military detention”.
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What Judge Miles then went on to state, which is part of the judgment that is said to indicate that he applied the wrong standard of proof, was as follows:
“While it is of course possible that the authorities may view his case more seriously because of his illegal exit and ethnicity it is equally arguable, in my judgment, that they may also decide that enlisting a young and fit healthy male into the military would be an appropriate remedy and also a preferable option at this time, given that the army is engaged in operations in Syria, together with the fact that this appellant has not deserted in the conventional sense but was simply out of the country when his liability for service arose”.
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Judge Miles then, in the same paragraph, said that:
“In the particular circumstances of this case, the likelihood of the appellant facing persecution or treatment in breach of Article 3 ECHR is a possibility rather than a real risk and on that basis therefore the appellant does not qualify for protection either as a refugee or on human rights grounds”.
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I noted in my earlier decision that it was necessary when considering the statements by the judge to have regard to what is contained within the Country Policy and Information Note referred to above. At paragraph 7.1.1 of this Note which specifically deals with “evasion and desertion” it is said as follows:
“If a person does not report to the authorities within this timeframe, he is considered a draft evader or objector. There is no alternative civilian service in Iran. Conscientious objection...
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