Tribunal decisions

The decision

St
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/01142/2015

THE IMMIGRATION ACTS

At North Shields
Decision and Reasons Promulgated
on 4th January 2017
on 9th January 2017

Before

DEPUTY JUDGE OF THE UPPER TRIBUNAL FARRELLY

Between

M.M
(ANONYMITY DIRECTION MADE)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original Appellant. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.

Representation:
For the Appellant: Mr Hussain, Kube Law, Solicitors
For the Respondent: Mr McVeety, Home Office Presenting Officer.

DECISION AND REASONS

Introduction

1. The appellant is a national of Iran and is Kurdish. He claimed protection on the basis he would be at risk if returned to Iran because of his smuggling activities across the Iran Iraq border. His claim was refused as not being credible.

2. His appeal was heard by First-tier Judge Cope and was dismissed. The judge gave numerous reasons for not finding the appellant credible and concluded at paragraph 106 of the decision that he was not a smuggler as claimed and was not wanted by the Iranians authorities. Furthermore, the judge did not accept he had exited the country illegally.

3. The judge went on to consider if the appellant would face any risk simply on the basis he had claimed protection in the United Kingdom. Furthermore, although the judge did not accept the appellant had left illegally, the position in the alternative was considered.

4. Relying on the country guidance decision of SB (Iran) [2009] UKAIT 0005 the judge concluded that he could safely be returned and the most he would face would be a fine. The appellant's representative Mr Hussain had sought to challenge the extant country guidance decision, arguing that it was outdated. He cited various unreported Upper Tribunal decisions and applications made in cases for judicial review. The judge however was not persuaded.

5. Permission to appeal to the Upper Tribunal was granted on the sole basis that it was arguable the judge may have erred in law in consideration of the risk on return simply as a failed asylum seeker.

6. First-tier Judge Cope heard the appeal in May 2015. On 26 June 2016 the country guidance decision of SSH and HR (illegal exit: failed asylum seeker) Iran [2016] UKUT 00308 was issued. It affirmed the guidance given in SB (Iran). The first appellant was a Kurdish Iranian who claimed involvement with the PJAK and was not found to be credible. The second appellant was also Kurdish who claimed he had been distributing information about Kurdish rights which would place him at risk. He was not found to have a profile which would place him at risk. At paragraph 34 of the decision the tribunal stated that it was not argued that being Kurdish in itself presented a risk on return but it was relevant as to how the person would be treated. However there was no evidence of any increased risk absent further features beyond Kurdish ethnicity.

7. In this appeal the appellant's representative has sought to argue that his circumstances can be distinguished from the guidance of SSH and HR (illegal exit: failed asylum seeker) Iran [2016] UKUT 00308. His primary point was that the appellant, as a Kurd, was at an enhanced risk on return as a failed asylum seeker. However, as Mr McVeety points out both appellants in the country guidance decision where Kurds and the decision specifically addresses their position as such.

8. The second point advanced relates to what he described as the risk at the `pinch point 'of Teheran airport. The final point related to the risk on return because, in the absence of a passport, the appellant would be travelling on a laissez passport. However both of these points have been extensively covered in the country guidance decision. The country guidance decision specifically considered what would be involved in obtaining travel documentation. It was noted an appellant would have to attend at the Embassy and the respondent would have to give information to the Embassy about their standing in this country. Nevertheless, the conclusion was that alone would not place individual at risk. Similarly, the situation at the point of return was considered with the guidance case dealing with Internet activities being distinguished.

9. First-tier Judge Cope did not have the benefit of the latest country guidance decision. However it reaffirms the previous position. The appellant's representative has failed to distinguish this appellant's situation from that covered in the latest country guidance.

10. The sole issue on which leave was granted has been the question of the potential risk on return as someone who had left the country illegally and who had unsuccessfully claimed protection here. At hearing the representatives confirmed this was the only issue. Bearing in mind the latest country guidance decision I see no material error of law. Consequently the decision of First-tier Judge Cope dismissing the appellant's appeal shall stand.

Decision.

The decision of First-tier Tribunal Cope dismissing the appellant appeal does not contain a material error of law and shall stand. The appellant's appeal is dismissed.

Deputy Upper Tribunal Judge Farrelly.