Upper Tribunal (Immigration and asylum chamber), 2023-12-29, UI-2022-000049
| Appeal Number | UI-2022-000049 |
| Hearing Date | 15 November 2023 |
| Date | 29 December 2023 |
| Published date | 15 January 2024 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI- 2022-000049 (PA/53016/2020)
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2022-000049 |
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First-tier Tribunal No: PA/53016/2020 |
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IA/00097/2021 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 29 December 2023
Before
UPPER TRIBUNAL JUDGE REEDS
Between
HOM
(ANONYMITY ORDER MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Malik, Counsel instructed on behalf of the appellant.
For the Respondent: Mr McVeety, Senior Presenting Officer
Heard at Manchester Civil Justice Centre on 15 November 2023
DECISION AND REASONS
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Pursuant to section 12 (2) (b) (ii) of the Tribunals, Courts and Enforcement Act 2007, this is the remaking of the decision of Judge of the First-tier Tribunal Lewis promulgated on the 23 June 2021, following the decision dated 6 October 2022 of the Upper Tribunal panel (UTJ Plimmer and DUTJ Kelly) setting aside the decision of the FtT having found a material error of law in that decision.
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The FtTJ did make an anonymity order and no grounds were submitted during the hearing for such an order to be discharged. Anonymity is granted because the facts of the appeal involve a protection claim.
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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.
The background:
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The background is set out in the evidence in the decision of the FtTJ and the documentary evidence. The appellant is a citizen of Iran of Kurdish ethnicity. He left Iran in November 2019 and travelled via Turkey to Italy where he was arrested and fingerprinted on 2 December 2019. He did not claim asylum in Italy and continued his journey and arrived in the United Kingdom on 13 December 2019.
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The appellant claimed asylum in the UK on the basis of his imputed political opinion in Iran and his actual political opinion in the UK. His claim was that he had fled Iran as he feared the state authorities after they found political material supporting the KDPI in a shop in which he worked with his father. He stated that his problems began a few days before he fled the country and that motivated by shortage of money he agreed to help a male who was a member of the KDPI and offered to pay the appellant to collect a package and deliver it elsewhere for him.
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A few days later the appellant was approached by the man again. The appellant said that he was reluctant to help but motivated by doubling of his pay and operating through fear of his father being informed of his help for the KDPI, the appellant agreed again to help. The man did not arrive to collect the package, so the appellant stored in the stockroom at his father’s shop.
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The appellant claimed that he was later told that the Ettela’at had raided his father’s shop and attain the appellant’s father. The appellant was told that he was wanted by them as well and his uncle advised him not to return home. The appellant claimed the family home was raided and his mother was asked about the appellant’s whereabouts.
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The appellant’s uncle provided him with financial and practical assistance to leave Iran and he left Iran illegally.
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Upon his arrival in the UK, the appellant stated that he was aggrieved at the Iranian regime in particular their treatment of Kurds and created a Facebook account and attended demonstrations.
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The respondent refused his claim in a decision dated 10 December 2020. It was considered that the appellant had not provided a detailed consistent account of his problems in Iran and that it was not accepted that he had engaged in smuggling activities of political material or that he come to the adverse attention to the authorities due to his political opinion ( paragraph 69). As to his sur place claim, the respondent considered that he had not substantiated his claim to hold a hypothetical profile, nor was it accepted that his activities in the UK would gain the adverse attention of the Iranian authorities,
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The appellant appealed the decision, and it came before FtTJ Lewis. The FtTJ accepted the appellant was an Iranian National of Kurdish ethnicity. However in respect of the events the appellant claimed to have occurred in Iran, the FtTJ rejected his account.
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As regards the findings of fact on the sur place claim they were set out between paragraphs 27 – 34. Then FtTJ did not accept his account that he was able to travel to London as he was not able to read or write and no means to navigate to address by himself. He did not accept that the activities represented his views. In the alternative the judge found that even if such posts and activities did represent the appellant’s now genuinely held political views the appellant did not demonstrate that he could be identified by the Iranian regime.
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The FtTJ therefore dismissed his appeal on protection and human rights grounds.
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The appellant applied for permission to appeal which was refused by the FtT but was granted by UTJ Lindsley on 21 February 2022. The UTJ refused permission to appeal in relation to those grounds which sought to challenge the adverse findings of fact which related to events in Iran but granted permission to appeal in relation to the FtTJ’s analysis of risk by reason of the appellant’s sur place activities. Thus there was no appeal before the Upper Tribunal to challenge the factual assessment made by FtTJ Lewis as to the events the appellant claimed had occurred in Iran.
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The appeal came before the Upper Tribunal panel (UTJ Plimmer and Deputy UTJ Kelly “the panel”) on the 16 August 2022. In a decision promulgated on 6 October 2022 they set out the following:
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The relevant part of the decision is replicated below:
“4. The matter now comes before us to determine whether or not the FtT committed a material error of law in the analysis of his sur place activities. We heard brief submissions from Mr Ahmed and Mr Tan, and we now give our decision.
Country Guidance
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Before doing so, we remind ourselves of the relevant country guidance applicable at the time of the FtT’s decision, that is 23 June 2021. In SSH and HR (illegal exit: failed asylum seeker) Iran (CG) [2016] UKUT 308 the Tribunal found that if particular concerns arose regarding a failed asylum seeker who had left Iran illegally, upon arrival in Iran there would be a period of further questioning which carried a real risk of detention and ill-treatment - see in particular [23] of that decision.
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The reasoning in SSH can be summarised as follows:
(1) At an illegal departing from Iran a failed asylum seeker would be questioned at the point of return.
(2) The initial period of questioning would be for a fairly brief period.
(3) If particular concerns arose from previous activities either in or out of Iran, there would be a risk of further questioning accompanied by ill-treatment.
(4) The assessment of whether there are likely to be particular concerns turns upon all the individual factors considered cumulatively.
(5) The failed asylum seeker would be expected to tell the truth when questioned.
(6) The evidence suggested no appetite to prosecute for illegal exit alone but if there is another offence, then illegal exit will be added on to it.
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The further country guidance decision in HB (Kurds) Iran CG [2018] UKUT 00430 (IAC) confirmed that SSH remained valid country guidance in terms of the general guidance offered in the headnote which I have just summarised. The headnote of HB provides additional guidance, particularly in the context of Kurds We now refer to the relevant parts of the headnote applicable to this case:
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“(2) Kurds in Iran face discrimination. However, the evidence does not support a contention that such discrimination is, in general, at such a level as to amount to persecution or Article 3 ill-treatment.
(3) Since 2016 the Iranian authorities have become increasingly suspicious of, and sensitive to, Kurdish political activity. Those of Kurdish ethnicity are thus regarded with even greater suspicion than hitherto and are reasonably likely to be subjected to heightened scrutiny on return to Iran.
(4) However, the mere fact of being a returnee of Kurdish ethnicity with or without a valid passport, and even if combined with illegal exit, does not create a risk of persecution or Article 3 ill-treatment.
(5) Kurdish ethnicity is nevertheless a risk factor which, when combined with other factors, may create a real risk of persecution or Article 3 ill-treatment. Being a risk factor it means that Kurdish ethnicity is a factor of particular significance when assessing risk. Those other factors will include the matters identified in paragraphs (6) to (9) below.
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(9) Even low-level political activity, or activity that is...
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