Upper Tribunal (Immigration and asylum chamber), 2022-04-19, PA/13943/2018
| Appeal Number | PA/13943/2018 |
| Hearing Date | 10 March 2022 |
| Published date | 04 May 2022 |
| Date | 19 April 2022 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: PA/13943/2018
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/13943/2018
THE IMMIGRATION ACTS
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Heard at Cardiff Civil Justice Centre |
Decision & Reasons Promulgated |
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On the 10 March 2022 |
On the 19 April 2022 |
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Before
UPPER TRIBUNAL JUDGE GRUBB
Between
M S
(ANONYMITY DIRECTION MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms S Walker, instructed by Turpin & Miller, Solicitors
For the Respondent: Ms S Rushforth, Senior Home Office Presenting Officer
DECISION AND REASONS
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Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) I make an anonymity order. Unless the Upper Tribunal or court directs otherwise, no report of these proceedings shall directly or indirectly identify the appellant. This direction applies to both the appellant and to the respondent and a failure to comply with this direction could lead to contempt of court proceedings.
Introduction
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This is the decision of the Upper Tribunal (“UT”) remaking the decision in the appellant’s appeal following UTJ Kebede’s decision sent on 4 December 2020 that the First-tier Tribunal (“FtT”) had erred in law and to set aside its decision.
Background
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The appellant is a citizen of Iran of Kurdish ethnicity. He was born on 15 August 1989. He arrived in the United Kingdom clandestinely on 21 January 2006.
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On 25 January 2006, the appellant claimed asylum. He claimed that his uncle had been a fighter for the Kurdish Democratic Party of Iran (“KDPI”) who was killed in 1985. The appellant claimed that he had been involved in anti-government demonstrations in Iran on 3 October 2005 and that shortly after, he was informed that the Iranian authorities were looking for him. As a result, he went into hiding and on 1 January 2006 came to the UK.
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On 6 March 2007, the Secretary of State refused the appellant’s claim for asylum. The appellant appealed to the FtT. On 30 May 2007, the FtT (Judge Morris) dismissed the appellant’s appeal. Judge Morris made an adverse credibility finding and concluded that the appellant had fabricated the core of his account of persecution in order to gain access to the UK. Thereafter, permission to appeal to the Upper Tribunal was refused by both the FtT and the UT itself. On 30 November 2007, the appellant became appeal rights exhausted.
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On 22 January 2010, the appellant made further submissions but, on 8 June 2010, that application was withdrawn as the appellant was granted indefinite leave to remain under the ‘Legacy’ scheme.
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Between 9 January 2012 and 14 July 2016, the appellant was convicted of a number of criminal offences involving, inter alia, driving offences and possession of Class B controlled drugs. None of these convictions resulted in terms of imprisonment.
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On 14 November 2016 at the Swansea Crown Court the appellant was convicted of wounding with intent to cause grievous bodily harm contrary to s.18 of the Offences against the Person Act 1861. He was sentenced to a term of six and a half years’ imprisonment. He did not appeal against that conviction or sentence.
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On 30 April 2018, the appellant was informed of the respondent’s intention to deport the appellant in accordance with the automatic deportation provisions in s.32(5) of the UK Borders Act 2007. The appellant was invited to make representations in response, including by a further letter dated 30 October 2018, why he should not be deported and why s.72 of the Nationality, Immigration and Asylum Act 2002 (as amended) (“the NIA Act 2002”) should not apply.
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On 10 May 2018 the appellant responded making both international protection and human rights claims.
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On 30 November 2018, the Secretary of State refused the appellant’s claims for asylum, humanitarian protection and under the ECHR.
The Appeal to the First-tier Tribunal
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The appellant appealed to the FtT. In a decision sent on 31 July 2020, Judge I D Boyes dismissed the appellant’s appeal on all grounds.
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First, as had Judge Morris before him, Judge Boyes rejected the appellant’s claim to be at risk on return based upon his account of his family’s (and his own) involvement with the KDPI and Kurdish causes in Iran.
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Secondly, Judge Boyes also rejected the appellant’s new claim based upon his sur place activities in the UK. Judge Boyes did not accept that the appellant and a witness, whom he called to give evidence on his behalf, were reliable witnesses of truth. Judge Boyes did not accept that the appellant had, as he claimed, attended a anti-Iranian demonstration in Birmingham in 2007.
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Further, Judge Boyes rejected the appellant’s claim based upon his Facebook posts which, it was said, were pro-Kurdish. The judge did not accept that any of the posts were visible, other than to his own circle of friends and that, further, the appellant was “apolitical” and that the creation of the pro-Kurdish posts on his Facebook pages was “nothing more than a mendacious and deception based act by the appellant trying to create some leave in the United Kingdom” (see paras 104 and 105). On the basis that the appellant’s activity was not based upon a “genuine and sincerely held political opinion or belief”, Judge Boyes concluded that the appellant could be expected to delete his Facebook account. There was nothing in the appellant’s history, including his being “Kurdish” which would create a real risk to him on return to Iran.
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Thirdly, in any event, as regards the appellant’s asylum (and humanitarian protection) claims, Judge Boyes found that Art 33(2) of the Refugee Convention applied as the appellant had not rebutted the presumptions in s.72 of the NIA Act 2002 that he had been convicted of a “particularly serious crime” and was a “danger to the community”.
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Finally, as regards Art 8 Judge Boyes found that neither Exception 1 nor Exception 2 in ss.117C(4) and (5) of the NIA Act 2002 applied and there were not “very compelling circumstances” over and above those Exceptions sufficient to outweigh the public interest reflected in the serious offence committed by the appellant (s.117(6)).
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As a consequence, Judge Boyes dismissed the appellant’s international protection claims and under Art 8 of the ECHR.
The Appeal to the Upper Tribunal
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The appellant sought permission to appeal to the Upper Tribunal on a number of grounds challenging the judge’s findings in respect of the appellant’s claimed political activity in Iran; his rejection of the appellant’s claimed risk on the basis of his sur place activities on Facebook; and on the basis that the judge had failed properly to take into account the appellant’s Kurdish ethnicity. Also, the judge’s application of s.72 of the NIA Act 2002 was challenged.
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The First-tier Tribunal (Judge Nightingale), on 20 August 2020 granted the appellant permission to appeal, limited to the challenge to the judge’s adverse finding in relation to the appellant’s sur place activities.
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Thereafter, on 8 October 2020, the Upper Tribunal issued directions provisionally expressing the view that the error of law issue could be determined without a hearing and seeking submissions on that and the substantive issues in the appeal from the parties.
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In response, the appellant filed submissions dated 19 October 2020 and the respondent filed submissions dated 23 October 2020.
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The respondent accepted that the judge’s decision in relation to the appellant’s sur place claim should be set aside and further findings of fact made on that issue. However, the remainder of the judge’s findings, against which the appellant had not been granted permission to appeal, should be preserved.
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The appellant accepted, in his submissions, that an oral hearing was not required if the respondent conceded the error of law in relation to the judge’s findings in respect of the appellant’s sur place claim.
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On 24 November 2020, in the light of the parties’ respective submissions, in particular the respondent’s concession as regards the judge’s adverse finding in relation to the sur place claim, UTJ Kebede found that the judge had erred in law in that regard and set aside his decision. The identified error of law was that the judge had failed to take into account, when assessing the risk to the appellant and the genuineness of his [political activity, the fact that the appellant had made his posts at a time when he had settled status in the UK and was thus not facing the prospect of removal to Iran.
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However, all the remaining findings made by Judge Boyes were preserved. UTJ Kebede directed that the appeal be relisted in the UT in order to remake the decision in respect of the appellant’s claim, limited to Art 3 on the basis of his sur place claim. The asylum appeal was correctly dismissed because Art 33(2) of the Refugee Convention applied.
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Following a Case Management Review Hearing on 3 June 2021, UTJ Kebede directed that the resumed hearing should await the publication by the UT of a new country guidance case...
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