Tribunal decisions

The decision

IAC-AH-KEW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: AA/00610/2016
AA/11829/2015

THE IMMIGRATION ACTS

Heard at HMCTS Employment Tribunals Liverpool
Decision & Reasons Promulgated
On 18th January 2017
On 9th February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

(1) MS MARYAM Aghajooni
(2) Mohammad Hossein ZADSHAM
(ANONYMITY DIRECTION NOT MADE)
Appellants

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellants: Mr Ben Williams (Counsel)
For the Respondent: Mr Chris Bates (Home Office Presenting Officer)

DECISION AND REASONS

1. This is an appeal against a determination of First-tier Tribunal Judge Rawnsley, promulgated on 7th September 2016, following a hearing at Manchester on 31st August 2016. In the determination, the judge allowed the appeal of the Appellant on Article 8 grounds, but dismissed it on asylum grounds, the appeal on Article 8 grounds being allowed on the basis that she had a viable family life right with her son, Mohammad Hossein Zadsham (AA/11829/2015). He was allowed at the same time on asylum grounds. Permission to appeal was granted by the First-tier Tribunal on 30th September 2016, and hence the matter comes before me today.
The Appellant
2. The Appellant is a female, a citizen of Iran, who was born on 23rd September 1958. She is the mother of Mohammad Hossein Zadsham, who was born on 5th April 1986, and whose appeal was heard also alongside that of the Appellant herself, and allowed on asylum grounds on the basis that he was a deserter from the Iranian Army who would suffer ill-treatment and persecution upon return.
The Appellant's Claim
3. The Appellant's claim is that the judge failed to give proper consideration to the fact that, as the mother of a person who had been granted asylum in this country, she would risk ill-treatment and persecution upon return to Iran herself, when she is apprehended by the state authorities and questioned about the whereabouts of her son, who has been granted asylum in the UK.
The Judge's Findings
4. The judge gave consideration to both appeals before him. At various parts of the determination, the judge found the Appellant herself to be evasive in the giving of her evidence (see paragraphs 34 to 36), and in particular in relation to how her husband passed away, which she claimed not to know, which the judge found to be untenable in that she must have attempted to find out the reasons for his death. The Appellant's claim had been variously that she had problems with her husband when he was alive, and when he passed away that she would now be at risk of ill-treatment from members of his family, because they would blame her for his death. The judge did not consider the Appellant would face a risk of ill-treatment for three reasons.
5. First, she would be of no adverse interest to the Iranian authorities on account of having left illegally or being a failed asylum seeker. Second, there was no evidence to show that the Iranian authorities are aware of her family background (including that her other children had claimed asylum in the UK). Third, that the Appellant was quite capable of coping with questioning, which she demonstrated by being evasive in her answers, such that she would fare quite well upon return to Iran when questioned. However, her son, Mr Zadsham, the Second Appellant in the appeal before the judge, had a heightened risk of suicide or health harm on the basis of the medical evidence submitted at the hearing and the judge accepted this evidence for her son. He then noted the Appellant's submission that she had an Article 8 claim on the basis of her family life with her son, such that a relationship existed there which goes beyond the normal emotional ties between mother and son, because she is the primary carer for her son and he depends on her for physical, mental and emotional wellbeing. The judge looked at the evidence in the round and accepted that this was the case and allowed the appeal on Article 8 grounds.
Grounds of Application
6. The grounds of application state that the judge ought to have allowed the appeal on asylum grounds because the Appellant faced the risk of ill-treatment in her own right if returned back to Iran because she would be questioned about her son who had been granted asylum in the UK.
7. On 30th September 2016 permission to appeal was granted and on 25th October 2016, a Rule 24 response was entered to the effect that the Appellant had no political profile and the Iranian authorities were unaware of her children having claimed asylum in the UK. Furthermore, the Appellant herself had not come to the adverse attention of the authorities in Iran.
Submissions
8. At the hearing before me on 18th January 2017, Mr Williams, relied upon the Grounds of Appeal. He submitted that the expert report of Dr Khakhi (at page 240) contains the statement that,
"It is common the whole family or certain members of the family are investigated and sometimes are taken into custody so that the authorities will complete their full investigation. It is a frequently used practise for Iranian authorities to arrest family members when they are suspected of being sympathetic ..."
with the person that they really are interested in. Mr Williams submitted that this indeed was the position of this Appellant here. She would, as is commonly the practise in Iran be investigated pending the full enquiry into the whereabouts of her son, and especially given that she was sympathetic to him.
Second, Mr Williams relied upon the recent country guidance case of Iran, namely, SSH and HR (Illegal Exit: Failed Asylum Seeker) Iran CG [2016] UKUT 00308 which confirmed the risk of further questioning, detention, and ill-treatment of a person in circumstances similar to that in which the Appellant today found herself.
9. For his part, Mr Bates relied upon the fact that this was a comprehensive and exhaustive determination of the issues. The judge had early at paragraphs 34 to 38 of the determination made findings in relation to the Appellant whom he considered to be evasive and unreliable as a witness. Eventually he concluded at paragraph 51 that the Appellant's ill-treatment could not be inferred from the position of her son who had been granted asylum because the Iranian authorities were not even aware of her family members having claimed asylum in the UK and she herself was of no adverse interest to the authorities at all. Insofar as it is the case that Dr Khakhi has referred to the fact that there is questioning of family members, all that will happen is that the Appellant is will be asked, upon arrival at the airport in Iran, where her son who has been granted asylum in the UK, currently is, and when she confirms that he is no longer in Iran, but is in the UK, the investigations of the Iranian authorities will come to an end, because they will have an answer. It will then no longer be of any purpose to the Iranian authorities to question or detain the Appellant herself. This is because up to now she has not been of any adverse interest to the authorities and their only interest has been in her son. She will be released. Furthermore, the Appellant already has existing family members living in Iran and there is no evidence that they have been mistreated.
10. In reply, Mr Williams submitted that one simply does not know whether family members in Iran have or have not been harassed. What one does know, on the other hand, is that the expert report is clear that the Appellant herself, upon returning back to Iran, will be questioned about her son in the UK. The latest country guidance case of SSH [2016] UKUT 00308 confirms (at paragraph 23) that questioning occurs upon return. One does not know what may happen. However, it is clear that if further issues arise upon questioning, then the Appellant will be at risk. The expert report makes it clear (at page 243) that there have been cases of family members being severely beaten in another case and the same can happen here. Mr Bates at this stage interjected to say that the case that was being referred to involved the beating of a family member at his home inside Iran, whereas what we were looking at here was the questioning of a failed asylum seeker upon arrival at the airport in Iran, and this was a very different scenario.
No Error of Law
11. I am satisfied that the making of the decision by the judge did not involve the making of an error on a point of law (see Section 12(1)) of TCEA [2007] such that I should set aside the decision. My reasons are as follows.
12. First, in what is a comprehensive and well-crafted determination, the judge makes clear findings of fact that the Appellant's claim has fluctuated between threat from her husband to threat from her husband's family, and now to the threat of the Iranian authorities. The judge has not found the claim itself to be plausible.
13. Second, the judge has not considered the witness to be a plausible witness, but rather on the contrary to have been an evasive witness, who deliberately failed to answer questions.
14. Third, the judge does consider (contrary to what Mr Williams has submitted in his valiant efforts to persuade me otherwise) the position of this Appellant in the context of the risk that the judge found to have been determined in relation to the Appellant's son, but concluded that the Iranian authorities were not aware of family members having made asylum claims in the UK.
15. Fourth, and no less important, even if they were to be aware, and even if it is a case that Dr Khakhi's observation should be taken at face value, namely, that family members are questioned pending the completion of investigations over people that the authorities are really interested in, the fact is that the Appellant will only be able to say that her son has claimed asylum successfully in the UK, whereupon the investigations would be complete, and the Appellant will be released. She will be released because the authorities have no interest in her specifically on account of any adverse activities that she has herself been engaged in.
16. Finally, the judge's approach has been sympathetic, notwithstanding his earlier findings, to this Appellant such that he has found there to be a viable Article 8 claim under the ECHR on the basis of her relationship that goes beyond normal emotional ties with her son, for whom she is a primary carer, and who needs her for his emotional wellbeing. The judge is perfectly entitled to come to the conclusions that he did and there is no error of law in the determination.
Notice of Decision

There is no material error of law in the original judge's decision. The determination shall stand.

No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Juss 7th February 2017