Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/00446/2012

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 12 October 2016
On 23 November 2016

Before

UPPER TRIBUNAL JUDGE CANAVAN

Between

A M
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
Anonymity was granted at an earlier stage of the proceedings because the case involves protection issues. I find that it is appropriate to continue the order. Unless and until a tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the appellant and to the respondent.

Representation:
For the Appellant: Mr A. Mackenzie, Counsel instructed by Bindmans Solicitors
For the Respondent: Mr E. Tufan, Senior Home Office Presenting Officer

DECISION AND REASONS

Background

Immigration history

1. The appellant is a citizen of Iran who entered the UK on 29 August 2007 with entry clearance as a student, which was valid until 30 September 2008. He made several applications for further leave to remain as a student, which were either rejected or refused. He appealed against a decision to refuse further leave to remain made on 11 January 2010. The appeal was dismissed on 13 July 2010. He remained in the UK without leave.

2. The appellant claimed asylum on 27 November 2011. The first strand of his claim was that he would be at risk as a result of his attendance at demonstrations outside the Iranian embassy in the UK. The second strand was that he would be at risk as a result of his attendance at meetings and other associations with well-known Iranian dissidents. The third element of his claim was that he feared he would be at risk because he posted views critical of the regime on an internet blog and sent a critical letter to the Iranian President via the official Presidential website. The appellant claimed that the secret police contacted his family by telephone in July 2011. They appeared to be aware of his anti-regime activities in the UK. They also raided his family home in October 2011 and took away political books and his computer.

Reasons for refusal letter

3. The respondent did not find his account credible. He had failed to produce any evidence to support his claim that he acted as a steward at demonstrations in the UK. The respondent considered that it was unlikely that the appellant's attendance at demonstrations in the UK would attract any adverse interest. Even if his presence at the demonstrations had come to the attention of the Iranian authorities, as a steward, it was likely he would merely be seen as a "logistical assistant" rather than a genuine protester. He had failed to provide any evidence to support his claim to attend political meetings. He was unable to give details about where the meetings were held. The respondent did not accept that the evidence put forward by the appellant showed that he had been maintaining a blog or that it supported his claim to have sent a critical letter to the President. The respondent considered that it was implausible that none of his family members were arrested if the secret service raided his family home as claimed in 2011. There was no evidence to support this aspect of his claim. For these reasons the respondent concluded that the appellant would not be at risk if returned to Iran.

First-tier Tribunal decision

4. The appellant appealed against the respondent's decision. First-tier Tribunal Judge N.J. Bennett ("the judge") dismissed the appeal in a decision promulgated on 10 July 2012.

5. The judge heard evidence from the appellant and several witnesses with whom he says he attended regular meetings. The judge found that there was a lack of evidence to show on the low standard of proof that the appellant attended a number of demonstrations in the UK as claimed or that any attendance was likely to have come to the attention of the Iranian authorities. Having heard from the witnesses he accepted that the appellant attended some meetings at K's house. He accepted that K was a well-known dissident who was associated with the Green Movement. He considered whether it was reasonably likely that the Iranian authorities had become aware of the meetings. He noted that they were held in a private place and that their main purpose was artistic, rather than political. He took into account the fact that one of the participants of the meetings was said to have been detained and questioned in Iran but concluded that there was insufficient evidence to suggest that the appellant's participation in the meetings was likely to have come to the attention of the Iranian authorities. He was not satisfied that the Iranian authorities contacted his family or had come to their home.

6. The judge went on to consider the appellant's claim that it was likely he had come to the attention of the Iranian authorities through his blog and by posting a critical letter to the Presidential website. The judge analysed the evidence that was before him but concluded that there was insufficient evidence to support the appellant's claim that he had contacted Google and Facebook to complain about difficulties with his accounts. He said that at one point his Facebook account showed the Iranian Cyber Police logo, but he had failed to produce any evidence to support his claim. Most of the blog posts were not translated so he could not assess the content except by way of the summary provided by Ms Enayat in her expert report. The judge concluded that it was not reasonably likely that the Iranian authorities could monitor each and every blog and Facebook page or that the appellant would come to the adverse attention of the authorities on return.

Error of law decision

7. In a decision promulgated on 29 April 2013 a panel of the Upper Tribunal, including Upper Tribunal Judge McKee and Deputy Upper Tribunal Judge Monson ("the panel"), concluded that the First-tier Tribunal decision involved the making of an error of law.

8. The panel concluded that the First-tier Tribunal failed to make findings on a material issue. Having accepted that the appellant addressed a letter directly to the President, the judge failed to make any findings as to whether this was likely to place him at risk.

9. The panel went on to consider what findings could safely be preserved and what aspects of the decision would need to be remade. They found that the judge had given adequate reasons for finding that there was insufficient evidence to show that the appellant attended demonstrations or that such attendance was likely to have come to the attention of the authorities. While they considered that the judge's findings relating to the risk emanating from the appellant's attendance at meetings with K were sustainable, the panel noted that he failed to consider the appellant's associations with another Iranian dissident, which was dealt with in Ms Enayat's report. The First-tier Tribunal failed to consider the risk as a result of his association with dissidents in the UK in a holistic way. As such the second strand of the claim was not preserved. With reference to the third strand, the panel concluded that the judge's findings were open to him on the limited evidence before him but observed that it was open to the appellant to produce "further, better and updated evidence" relating to his internet publications when the appeal was reheard.

The current position

10. The chronology of events discloses a lengthy delay between the Upper Tribunal finding an error of law and the listing of the case for rehearing. I am told that the case was adjourned pending the decision in AB and Others (internet activity - state of evidence) Iran [2015] UKUT. At a Case Management Review hearing on 15 August 2016 both parties agreed that, given the delay, and in light of new issues raised by the appellant, it would be appropriate to conduct a fresh hearing of the appeal in which all issues could be assessed in the round.

11. At the hearing on 12 October 2016 Mr Tufan sought to retract from the respondent's previous position and argued that the findings preserved by the Upper Tribunal should stand. For reasons that will become clear later in this decision it makes little difference whether those findings are formally preserved or not.

12. Unsurprisingly, there have been further developments since the First-tier Tribunal heard the appeal over four years ago. The appellant's case is now formulated as follows:

(i) He continues to assert that his attendance at demonstrations in the UK in 2009 form one part of his profile as someone who would be perceived as an opponent or critical of the Iranian authorities.

(ii) He continues to assert that his attendance at meetings and his association with Iranian dissidents in exile in the UK also form part of his risk profile albeit that he accepts that he stopped attending circa 2012 because he was busy with another project. The meetings stopped altogether in 2015.

(iii) The appellant accepts that he stopped working on his blog although he is unclear when this happened. He continues to assert that the authorities are likely to view him as critical of the regime after having posted a letter to the Presidential website.

(iv) An additional strand to the appellant's claim is his work on a TV programme about rap music, which was broadcast on a London based satellite/internet TV station funded by an Iranian oppositionist. The appellant says that he made about 85 programmes with two friends. He says that the Iranian authorities try to clamp down on underground music because the lyrics are often critical.

13. I have had the opportunity of hearing evidence from the appellant. He was the only witness. I have also taken into account the submissions and written arguments made by both parties. The details of the hearing are a matter of record.

Decision and reasons

14. The last element of the appellant's case is arguably now the strongest. He has produced several pieces of evidence to support his claim to have made a number of programmes for a London based TV station run by an oppositionist.

15. The appellant has produced a number of print outs of screenshots of the rap programme from YouTube. The screenshots cover a period from 2013-2014. The programmes are clearly linked to the TV station named by the appellant. He has also produced a print out from the programme's Facebook page, which shows the appellant as one of three administrators for the page. His administrator ID appears to be in his own name and contains his photo.

16. Ms Enayat produced an up to date report, which deals with this issue. Her expertise has not been questioned. The evidence she gives in the report was not challenged in any way at the hearing. She said that rap and hip hop is immensely popular amongst young Iranians but is an underground genre. The restrictions imposed by the authorities means that rappers cannot sell their albums on the open market so rely on the internet. Live performances are held in secret. The state-owned media often describes rap as a "satanic cult" and it is generally viewed by the authorities as a manifestation of Westernised culture. The lyrics of some pieces are critical of social conditions, and after 2009, some rappers were openly political. In the period since 2009 there has been intense harassment and intermittent persecution leading to several of the most prominent rap artists having to leave the country. Ms Enayat's evidence is broadly consistent with background news reports contained in the appellant's bundle.

17. Ms Enayat gave an outline of the history of the TV station on which the programme was broadcast. She confirmed that it was an opposition Persian-language station that began broadcasting from London in 2012. The owner shut the station in December 2014. She outlined some of the responses to the TV station. In particular, an English-language subsidiary of Iranian state TV is said to have described the channel as a "Western tool" to divide Iran. She outlines attacks on the founder of the TV station who has been denounced as a "seditionist", "anti-Revolutionary" and an "Israeli spy".

18. Ms Enayat said that she viewed five of the TV programmes before writing her report. She confirmed that the appellant's pen name, which is a thinly disguised adaptation of his real name, appeared in the credits. The programmes she viewed dealt with the history of rap in general and the development of rap and hip hop in Iran. The fifth programme dealt explicitly with rap and the 2009 demonstrations. Ms Enayat concludes:

"There can be no doubt that anyone who participated in making? such a programme would be viewed by the Iranian authorities as engaged in the cultural war against the Islamic Republic. Some parts of it would be viewed as out and out political propaganda, and much of it would be viewed as promoting obscene material (on account of women appearing in the video-clips singing and dancing without a hair covering in Western, often quite revealing, clothes).

Additionally the political context of the programme - the agenda of [TV station] and its principles - would put AM at risk were he to be returned to Iran."

19. Ms Enayat went on to outline a number of examples, cross-referenced to sources, of a number of popular musicians or music distributors who had been harassed, arrested or detained. She noted that one of the other makers of the programme was K's son, whose participation in the TV station was casually mentioned in an English language article about his father in September 2014. Taken with the rap programme's Facebook account, which gives the appellant's full name, she concluded that it would not be difficult for the authorities to ascertain who made the programme.

20. I am satisfied that this evidence is sufficient to show on the low standard of proof that the appellant was involved in making a large number of programmes for a British based Iranian opposition TV channel. The subject and content of the programmes focus on an issue that would not be seen as particularly controversial or political in a Western context. However, in light of the background and expert evidence relating to Iran, it is clear that rap and hip hop is seen as an underground genre that challenges the revolutionary values of the Iranian authorities. In the context of a theocratic state the content is inherently political in nature. I accept that the appellant's pen name on the credits of the programme is only a thinly veiled attempt to disguise his identity, which would readily be disclosed through investigation of the programme's Facebook page. There is more than sufficient evidence before me to show that the TV station was run by a person who is viewed as an oppositionist. For this reason, I am satisfied that the appellant's association with the TV station is likely to be viewed as an act of opposition to the Iranian regime.

21. The decision in AB (Iran) was not designated as country guidance but was reported in order to set out the evidence considered by the Tribunal relating to internet activity in Iran. The Tribunal concluded:

"466. It is very difficult to establish any kind of clear picture about the risks consequent on blogging activities in Iran. Very few people seem to be returned unwillingly and this makes it very difficult to predict with any degree of confidence what fate, if any, awaits them. Some monitoring of activities outside Iran is possible and it occurs. It is not possible to determine what circumstances, if any, enhance or dilute the risk although a high degree of activity is not necessary to attract persecution.

467. The mere fact of being in the United Kingdom for a prolonged period does not lead to persecution. However it may lead to scrutiny and there is clear evidence that some people are asked about their internet activity and particularly for their Facebook password. The act of returning someone creates a "pinch point" so that a person is brought into direct contact with the authorities in Iran who have both the time and inclination to interrogate them. We think it likely that they will be asked about their internet activity and likely if they have any internet activity for that to be exposed and if it is less than flattering of the government to lead to at the very least a real risk of persecution.

468. Social and other internet-based media is used widely through Iran by a very high percentage of the population and activities such as blogging may be perceived as criticisms of the state which is very aware of the power of the internet. The Iranian authorities in their various guises both regulate and police the internet, closing down or marking internet sites although this does not appear to be linked directly to persecution.

469. The capability to monitor outside Iran is not very different from the capability to monitor inside Iran. The Iranian authorities clearly have the capacity to restrict access to social internet-based media. Overall it is very difficult to make any sensible findings about anything that converts a technical possibility of something being discovered into a real risk of it being discovered."

22. I am satisfied that this issue, taken alone, is likely to be sufficient to give rise to a real risk on return for reasons of actual or attributed political opinion. However, it is necessary for me to consider the other issues raised in order to conduct a holistic assessment of the evidence, albeit that it might not be necessary to go into the same amount of detail given my findings on the first issue.

23. The appellant has not produced any significant new evidence relating to his claimed attendance at demonstrations in the UK in 2009. The only new piece of evidence appears to be an unsigned statement from a friend ("BR") who says that he attended demonstrations with the appellant. The statement can be given very little weight. It is unsigned and the witness did not attend for his evidence to be tested. While there is nothing inherently implausible about the appellant's account of attending demonstrations at a time when there was a great deal of protest about the elections, I conclude that there is no good reason to depart from the First-tier Tribunal judge's finding that the appellant has produced insufficient evidence to make out this aspect of his claim.

24. The First-tier Tribunal judge accepted that the appellant attended some meetings at K's house starting in 2011. The appellant accepts that he stopped attending meetings in 2012 when he became involved in the TV station. The judge heard evidence from K and was satisfied that he is a well-known dissident but concluded that there was insufficient evidence to show that the appellant was likely to have been identified as someone who attended those meetings. However, the Upper Tribunal concluded that the judge's findings were not sufficiently well-rounded because no findings were made about his associations with another dissident, "M".

25. While the appellant stopped attending meetings with K in 2012 there is evidence to show that his association with the family continued. The appellant is a friend of K's son "S", who also gave evidence at the First-tier Tribunal hearing. S is one of the group of three people who made the rap programme for the TV channel. He is named as one of the administrators on the Facebook page. The appellant says that he continues to have some contact with K through his friend. I am satisfied that the evidence is sufficient to show that the appellant has had continuing contact with the family. The appellant has also produced a copy of an email confirming his place on a film course that started in June 2016. The film school is named after M and runs out of a recognised academic film institution in London. Ms Enayat's first report explains M's background as a prominent film maker who is associated with the opposition.

26. The picture that develops is of a young man who has connections with the Iranian artistic and dissident community in the UK. Over time he has developed his own artistic endeavours on a subject that is likely to be viewed in a negative way by the Iranian authorities.

27. The First-tier Tribunal judge was not satisfied that his attendance at meetings with K was likely to have brought him to the attention of the Iranian authorities, despite the fact that he appeared to accept that at least one member of the group had been arrested and interrogated. The appellant's account of the authorities coming to his home is broadly consistent with the background and expert evidence, which shows that pressure is sometimes brought to bear on family members of oppositionists abroad.

28. In AB (Iran) the Tribunal noted evidence that suggested Iranians had been recruited to infiltrate the community in the UK and report to the regime. Ms Enayat's up to date report states that there has been substantial evidence over the years to show that the Iranian authorities engage in surveillance of opposition activity abroad.

29. The judge was correct to note that there was no evidence to establish a direct connection between the appellant's attendance at the meetings with K in the UK and his claim that the authorities visited his family home in Iran. While I cannot discount the possibility that this might be an embellishment of his claim, there is nothing inherently implausible about this aspect of his account if it is considered in the context of the evidence outlined above. I remind myself that the appellant does not need to prove his case with any certainty. As such, I am satisfied that it is at least reasonably likely that the authorities may have identified him as a person of interest as a result of his association with prominent members of the dissident artistic community in the UK.

30. The rest of the evidence relating to the appellant's online activities, including the letter he sent directly to the Presidential website in November 2011, remains a little vague. The copy of the letter contained in the appellant's bundle appears to have been posted on his blog. There appears to be no evidence to show that it was posted on the Presidential website. I note that the First-tier Tribunal judge was satisfied that he "probably" posted the letter to the President on his blog to strengthen his claim in view of the fact that it was posted a week before his screening interview. The rest of the translations of the blog appear to focus on the appellant's poetry and do not appear to disclose any overtly political content.

31. In response to the First-tier Tribunal decision the appellant has produced further evidence in the form of a statement from his solicitor. She says that she had conduct of the appellant's case during his initial asylum claim and subsequent appeal. She attached a copy of a Facebook print out, which she said the appellant gave to her during the preparation of his appeal before the First-tier Tribunal. It was mistakenly omitted from the bundle for the hearing. The judge expressed some surprise that such evidence was missing. I am satisfied that this is sufficient to explain why the evidence, which does appear to have been printed out on 02 March 2012, was not before the First-tier Tribunal.

32. The Facebook print out shows the appellant's name and his photograph. The posts that are in English do not appear to show any overtly political content and are of the usual nature of messages with friends and sharing links relating to film and music. What is of note is the fact that his profile picture has been replaced with the logo of the Iranian Cyber Police (Persian language acronym FATA). Ms Enayat confirms that the logo corresponds with the FATA logo, which was set up in early 2011. The logo is similar to evidence I have seen in other Iranian cases. While the evidence shows that FATA may have had the capability to hack Facebook accounts at the time, and the possibility of his account being hacked cannot therefore be discounted, it remains the case that there does not appear to be any evidence to show that he made any complaint to Facebook about this issue. More up to date evidence appears to suggest that the appellant is now able to use his Facebook account although Ms Enayat suggests that this does not meant that internet activity is not being observed.

33. After having considered the up to date evidence relating to the appellant's online activities I am not satisfied that the evidence is sufficient to show that this strand of his claim, if taken alone, is likely to give rise to a real risk on return. However, I bear in mind what the Tribunal in AB (Iran) said about the point of return being a "pinch point" when further enquiries and investigations might be made. Any more in depth search of the appellant's internet activities might reveal a copy of the letter he wrote to the former President on his old blog, which Ms Enayat says is still accessible on the internet.

34. I accept that there may have been some cause to doubt some of the initial elements of the appellant's claim. On his own account he did not leave Iran in fear of persecution. He visited the UK in 2007 before returning on a student visa a couple of months later. Although it does not form part of his asylum claim, it seems clear from the appellant's own evidence that he did not want to carry out military service. I accept the respondent's submission that this may have been his initial motivation for wanting to come to the UK.

35. However, the claim has always been based on his sur place activities in the UK. The fact that the appellant did not enter the UK with a well-founded fear of persecution does not undermine the core aspects of his claim. I accept that there is evidence to show that the appellant has long standing associations with prominent members of the dissident artistic community in the UK, which included attending meetings as well as social and cultural pursuits.

36. I accept that the appellant has produced sufficient evidence to show on the low standard of proof that he was involved in making a number of television programmes for a TV channel that has been vilified by the Iranian authorities. The content of the programmes, whilst not controversial by UK standards, is likely to be viewed by the Iranian authorities as a challenge to the cultural values of the revolution. The background and expert evidence shows that some artists have been arrested and ill-treated as a result of crackdowns on those perceived to contravene the cultural values of the Iranian regime.

37. I have explained why some aspects of his claim, if taken alone, are not reasonably likely to give rise to a real risk on return. However, when the appellant's profile is considered as a whole I am satisfied that the different strands of his claim, if assessed on a cumulative basis, are sufficient to show on the low standard of proof that the appellant is likely to be questioned when he arrives at a "pinch point" on return to Iran. His associations with well-known dissidents in the UK, as well as his own creative activities, are likely to form a profile of someone who is opposed to the regime and therefore gives rise to a real risk of serious harm for reasons of actual or attributed political opinion.

38. I conclude that the appellant's removal in consequence of the decision would breach the United Kingdom's obligation under the Refugee Convention.

DECISION

I re-make the decision and ALLOW the appeal

Signed Date 22 November 2016
Upper Tribunal Judge Canavan