Upper Tribunal (Immigration and asylum chamber), 2023-02-28, PA/02255/2019
| Appeal Number | PA/02255/2019 |
| Hearing Date | 15 December 2022 |
| Published date | 15 March 2023 |
| Date | 28 February 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: PA/02255/2019
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02255/2019
THE IMMIGRATION ACTS
|
Heard at Field House |
Decision & Reasons Promulgated |
|
On 15th December 2022 |
On the 28 February 2023 |
|
|
|
Before
UPPER TRIBUNAL JUDGE KEITH
Between
‘XX (IRAN)’
(ANONYMITY DIRECTION CONTINUED)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr G Lee, instructed by Turpin & Miller LLP Solicitors
For the Respondent: Ms A Ahmed, Senior Home Office Presenting Officer
DECISION AND REASONS
-
This is the remaking of the decision in the appellant’s appeal against the respondent’s refusal of his protection and human rights claims.
The History of the Claim
-
In a decision of this Tribunal promulgated on 20th October 2021, we concluded that an earlier First-tier Tribunal, Judge Abebrese, had erred in law in allowing the appellant’s appeal. In reaching that conclusion, we set aside the FtT’s decision without preserved findings of fact. We canvassed with the legal representatives at that hearing whether they wished us to remit the matter to the FtT but they confirmed that they wished us to retain remaking in the Upper Tribunal. We specifically considered §7.2 of the Senior President’s Practice Statement, taking into account the parties’ views, the fact that the appeal had already been considered twice by the FtT, and our ability to determine the remaking expeditiously. We agreed to the parties’ request.
-
There had been an earlier undisturbed FtT decision of Judge Price, published on 16th December 2005, in which Judge Price had rejected the appellant’s asylum and human rights claims. The appellant later made further submissions that the respondent accepted as a fresh claim, but nevertheless refused his protection and human rights claims in her decision dated 5th February 2019.
-
There is a protracted litigation history with previous abortive hearings and case management hearings. We do not dwell on these in any detail, except to make two points. First, there had been an earlier adjournment whilst the respondent sought to clarify her position in light of the archiving of a Country Policy and Information Note or “CPIN”, “Double Jeopardy,” January 2018. The appellant places particular emphasis on the fact that the CPIN has been archived, saying that it undermines the refusal decision, and that his evidence since the CPIN on the relevant risk of double-jeopardy should be preferred. Second, this Tribunal and the FtT had issued directions (albeit different in content) concerning the appellant’s claim to have worked with the Security Service (MI5) and the extent to which that organisation would be willing to confirm the same, or the respondent would be willing to make appropriate enquiries. No such confirmation from the Security Service had been forthcoming, nor is there any relevant material to which the respondent has access. I deal with these matters later in this decision.
-
I turn to the documents which the parties provided to me and the issues which I identified and agreed with the representatives that I should decide.
Documents and Issues
-
I considered a consolidated bundle prepared by the appellant running to 680 pages, which I refer to as “AB”. This bundle included numerous statements written by the appellant himself when he was not legally represented. As Mr Lee accepted, the statements comprised a mixture of evidence of the fact, with legal submissions and it was practically impossible to extract the evidence of fact from his legal submissions.
-
I accepted that it was not appropriate for them to be redrafted and so whilst I have considered the statements, a substantial proportion of them includes assertions and legal submissions rather than evidence. The appellant also provided a supplementary bundle (“SB”) which included an expert report of Dr Mohammad Nayyeri, relevant to the issue of the likelihood of the appellant being re-prosecuted if he were returned to his country of origin, Iran. The supplementary bundle also contains excerpts from a website produced by the appellant, which I do not name as it would otherwise risk ‘jigsaw’ identification. I am satisfied (and Ms Ahmed accepted) that the website itself exists, having been created by the appellant in or around 2017.
-
The appellant gave evidence in English, without the need for an interpreter. He adopted his witness statements and Ms Ahmed cross-examined him.
-
The respondent also relied on a position statement of 17th August 2022 and the appellant relied upon a skeleton argument written by Mr Lee of 14th December 2022.
-
Mr Lee had set out in the skeleton argument the issues which Ms Ahmed accepted were the correct ones.
Issue (1)
-
The first issue was whether the appellant had rebutted the presumption under Section 72 of the Nationality, Immigration and Asylum Act 2002. The appellant accepts that the crime, of which he was convicted, of rape, was a particularly serious crime, but he disputes, for the purposes of Section 72(2), that he continues to constitute a danger to the community of the UK. The question was therefore whether he had rebutted the presumption. If he has not rebutted the presumption, then I am bound to dismiss his protection claim, noting the authority of Essa (Revocation of protection status appeals) [2018] UKUT 244 (IAC). The gist of the appellant’s appeal on issue (1) is that he has a psychologist’s report indicating that he is at low risk of further offences, which he says is corroborated by the fact that he has been removed from the Sex Offenders’ Register, with letters relevant to risk from the Metropolitan Police.
-
The respondent says that the appellant has consistently denied responsibility for the rape for which he was convicted and he has protested his innocence. He never gave any indication of having insight into the impact of his actions on his victim, nor has he undertaken any rehabilitation courses. The fact that the offence was a single offence, and was committed twenty years ago does not prevent the appellant from continuing to constitute a danger.
Issue (2)
-
The second issue was whether the appellant has a well-founded fear of persecution based on a combination of his claimed engagement with the Security Service and his hosting an environmental campaigning website. He accepts that the prime focus of the website is environmental campaigning but he says that the website is unequivocally critical of the Iranian and other neighbouring regimes and the impact that the regimes’ actions have had upon the local marine environment. The appellant refers to these two characteristics in the context (but not as separate claims) of the Iranian regime’s likely suspicion and/or hostility to those returning from countries such as the UK after a long period of time, in circumstances where the Iranian regime would be aware of the appellant’s conviction for rape in the UK.
Issue (3)
-
The third issue was whether the appellant faced a real risk of serious harm contrary to Article 3 ECHR, (not relied on as a Refugee Convention reason) as a result of the Iranian regime’s likely attitude towards his conviction for rape, or that his removal would be in breach of his article 8 rights. The appellant says that his case does not need to go as far establishing that he will be the subject of further prosecution for the same offence (double jeopardy), with the possible sanction for rape in Iran of the death penalty. Although he claims there is a real risk of both prosecution and the death penalty, he says that his claim should succeed because at the very least, on return, he will be at the risk of detention and interrogation, bearing in mind the combination of the other factors relied upon for Convention reasons.
-
In terms of the appellant’s Article 8 claim, while the appellant has family members in the UK, he does not rely on them in an Article 8 sense. For the purposes of his claim of a right to respect for his private life in the UK, the appellant refers to the period of time that he has spent in the UK (even if much of it has been without leave) and his integration following his release from prison in 2005. He relies on his circumstances as constituting very compelling circumstances for the purposes of Section 117C(6) of the 2002 Act.
Findings
-
I do not recite the representatives’ submissions or the evidence given, except where necessary to resolve competing submissions and to resolve any areas of factual dispute.
I turn first to Judge Price’s 2005 decision. I bear in mind that the decision is a starting point and not a legal ‘straitjacket’ and that I may depart from the earlier decision on a principled and properly reasoned basis (see R (MW) v SSHD (fast-track appeal: Devaseelan guidelines) [2019] UKUT 00411 (IAC)). I bear in mind, as well, that facts pertinent to the appellant were not brought to the attention of Judge Price, particularly the appellant’s assertion that he had dealings with the Security Service. Bearing...
To continue reading
Request your trial