Upper Tribunal (Immigration and asylum chamber), 2023-04-19, PA/03456/2020
| Appeal Number | PA/03456/2020 |
| Hearing Date | 02 February 2023 |
| Published date | 04 May 2023 |
| Date | 19 April 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Case No: UI-2021-000607
First-tier Tribunal No: PA/03456/2020
|
IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2021-000607 First-tier Tribunal No: PA/03456/2020 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On the 19 April 2023
Before
UPPER TRIBUNAL JUDGE BLUNDELL
Between
AN (IRAN)
(ANONYMITY ORDER MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Azmi, instructed by Central England Law Centre
For the Respondent: Mr Williams, Senior Presenting Officer
Heard at Birmingham Civil Justice Centre on 2 February 2023
Order Regarding Anonymity
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity. No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court. I make this order in order to reduce the risk to the appellant in the event that he is ultimately unsuccessful in his claim for international protection.
DECISION AND REASONS
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The appellant is an Iranian national who was born on 3 September 2002. He appeals, with the permission of First-tier Tribunal Judge Neville, against the decision of First-tier Tribunal Judge French (“the judge”). By that decision, which was issued on 28 April 2021, the judge dismissed the appellant’s appeal against the refusal of his claim for international protection.
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It is not clear to me why it took more than a year for the appeal to the Upper Tribunal to be listed after Judge Neville’s decision.
Background
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The appellant entered the UK in May 2019. He was an Unaccompanied Asylum-Seeking Child at that stage. He stated that he was Kurdish and that he had worked as a smuggler in Iran. He said that his brother’s house had been raided by the Iranian authorities and that political material which was critical of the regime had been discovered, as a result of which he was sought by the authorities, and had exited Iran illegally. The respondent did not believe his account and refused his claim.
The Appeal to the First-tier Tribunal
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The appellant appealed to the First-tier Tribunal against the refusal of his claim. Before the judge, he claimed that he was at risk for the reasons above and also on account of political activity he had undertaken in the UK, both online and in person.
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The judge heard oral evidence from the appellant and submissions from the advocates before reserving his decision. In his reserved decision, the judge concluded that the appellant’s primary account (of the papers being discovered in his brother’s house) was not reasonably likely to be true. At [10], he analysed the risk to the appellant as a result of his ethnicity, illegal exit and sur place activity. The judge concluded as follows:
As far as the sur place activity was concerned it is my view that this was contrived to bolster a weak case. There was no evidence that the material was publicly available and in event it was mainly re-postings of material produced by other people. It was claimed that the Facebook screen shots showed his attendance at demonstrations, but it is not clear when and where the photographs were taken. There is nothing to suggest that he was a leader or organiser of a demonstration, which might have made it feasible that he might be of interest to the Iranian authorities. I also find it strange that as far as I can see from the produced material there was no political material on Facebook between December 2019 and October 2020. That does not seem to reflect a person who is politically active. Moreover it is unbelievable that someone who had demonstrated some IT proficiency, should be unable to contact PJAK members in the UK and join the party, if he was supportive of it. The fact that he had no done so was not an indicated that PJAK material and contact details were not available online, but rather the fact that he had never looked. Leaving aside the fact that I do not believe that the Appellant is at risk because of smuggling or political activities, I must still consider whether the Appellant would be at risk, simply by virtue of being a Kurd and/or because he left the country illegally. On the first point I note that in HB it was stated that a person of Kurdish ethnicity would not face a real risk of ill treatment or persecution tantamount to the threshold set by Article 3, purely on account of his ethnic origin. I do not believe his account of fearing return to Iran on fear of death or torture. On the second point I rely on the findings of the Upper Tribunal in SSH and HR (illegal exit: failed asylum seeker) (referred to above) where it was stated that "evidence suggests that there is no appetite to prosecute for illegal exit alone". Since in my view there was no other reason for the Appellant to have come to the adverse attention of the Iranian authorities, he would not be prosecuted upon return for his illegal exit. In my view there was no reason why anyone should have cause to wish to cause him harm. It follows from what I have said above that I reject the Appellant's asylum claim. Equally since I do not accept that the Appellant is at risk of death or serious physical harm upon return to Iran, I reject the claim that a refusal of the application would be a breach of the Appellant's rights under Articles 2 and 3.
The Appeal to the Upper Tribunal
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Grounds of appeal were settled by the appellant’s solicitors on 19 May 2021. It was expressly acknowledged at [3] of the grounds that no challenge was made to the judge’s rejection of the appellant’s account of events in Iran. The two grounds of appeal which were advanced were as follows.
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Firstly, that the judge had wrongly directed himself that the ‘essential question’ was whether he believed the appellant, whereas the real question was whether the appellant was at risk on return to Iran.
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Secondly, that the judge had failed in his decision as a whole to apply the guidance in HB (Kurds) Iran CG [2018] UKUT 430 (IAC).
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Judge Neville extended time for bringing the appeal and granted permission on both grounds. In doing so, he observed as follows:
The grounds are arguable in their assertion that the Judge failed to consider whether the appellant’s political activity, even if conducted in bad faith, might give rise to risk on return. The submissions recorded by the Judge at the lower part of page 7 would appear to have been applied in the subsequent analysis at [10], by an examination of whether the appellant has an organisational or leadership role in pro-Kurdish political activity such as to engage the interest of the Iranian authorities. That approach is, arguably at least, contrary to the guidance at headnote (7)- (10) of HB (Kurds) Iran (illegal exit: failed asylum seeker) CG [2018] UKUT 430 (IAC).
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Before me, Mr Azmi made oral submissions with economy and precision. He submitted that the judge had failed to consider whether the appellant’s sur place activity would give rise to risk even if it was not genuine. The judge had considered whether the appellant occupied a leadership role in the UK diaspora but he had failed to consider other aspects of the guidance in HB (Iran).
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For the respondent, Mr Williams opposed the appellant’s appeal. He submitted that the judge had found for proper reason that the appellant’s sur place activities were contrived. The judge had not then proceeded to consider the risk factors set out in HB (Iran) but any such failing was immaterial to the outcome. The appellant could delete the Facebook account, as considered in XX (PJAK - sur place activities - Facebook) Iran CG [2022] UKUT 23 (IAC), since he had no genuinely held belief in the opinions expressed. In response to my question about whether the appellant would be expected to lie on return, Mr Williams submitted that this was not so; the question was not whether he was expected to lie but whether it was anticipated that he would do so. Given the lies told to the British authorities by the appellant, it was inevitable that he would lie to the Iranian authorities about his activities in this country.
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In reply, Mr Azmi acknowledged the point made by Mr Williams in reliance on XX (Iran) but he submitted that there would need to be a closer analysis of the Facebook evidence and the three demonstrations which the appellant had attended. The appellant should, he submitted, have an opportunity to provide full disclosure of his Facebook account in compliance with the guidance in XX (Iran), which post-dated the FtT’s decision in this case.
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The advocates agreed that the proper course, in the event that I found there to be material error of law of the type contended for by Mr Azmi, was to set aside the decision to that extent and to remake the decision on the appeal in the Upper Tribunal.
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I reserved my decision on the question posed by s12(1) of the Tribunals, Courts and Enforcement Act 2007, of whether the FtT’s decision involved the making of an error on a point of law.
Analysis
At [1]-[5] of the headnote to HB (Iran), the Upper...
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