Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/02488/2015

THE IMMIGRATION ACTS

Heard at: Manchester
Decision Promulgated
On: 5th December 2016
On: 17th March 2017

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

SN
(No anonymity direction made)
Appellant
And

The Secretary of State for the Home Department
Respondent

For the Appellant: Mr J. Nicholson, Counsel instructed by Bolton CAB
For the Respondent: Mr G. Harrison, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a national of Iran. She was born in 1990.
Anonymity Direction
2. This case concerns a claim for international protection. Having had regard to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 and the Presidential Guidance Note No 1 of 2013: Anonymity Orders I therefore consider it appropriate to make an order in the following terms:
“Unless and until a tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of her family. This direction applies to, amongst others, both the Appellant and the Respondent. Failure to comply with this direction could lead to contempt of court proceedings”
Discussion and Findings
3. The history of this matter, insofar as is material to my decision, is as follows.
4. The Appellant arrived in the United Kingdom on the 16th September 2013 and claimed asylum. She said that she could not return to Iran because a member of the baseej (H) was persecuting her because she had refused him in marriage. This man had raped her and was angry that she had married someone else (M). M was a member of the Baha’i faith. Their home had been raided by the authorities and now the Appellant was wanted. She had escaped, leaving M behind in Iran.
5. The Respondent rejected the claim for a want of credibility. The Appellant exercised her right to an appeal.
6. The matter came before the First-tier Tribunal (Judge D. Alty) on the 2nd June 2013. Judge Alty heard oral evidence from the Appellant and a witness, a relative in the UK. She rejected the account that had been given and dismissed the appeal.
7. The decision of First-tier Tribunal Judge Alty was set aside to a limited extent only by Upper Tribunal Judge Kebede on the 4th April 2016. It was accepted by the Respondent that Judge Alty had erred in law in failing to address submissions made on the Appellant’s behalf that she would face a real risk of serious harm upon return to Iran because she had left that country illegally. Judge Kebede directed that the case be stayed behind the forthcoming country guidance on the ‘illegal exit’ point.
8. That country guidance became available on the 29th June 2016. In SSH and HR v Secretary of State for the Home Department (illegal exit – failed asylum seeker) Iran CG [2016] UKUT 00308 (IAC) the Tribunal reached the following conclusion about the ‘illegal exit’ argument:
An Iranian male in respect of whom no adverse interest has previously been manifested by the Iranian State does not face a real risk of persecution/breach of his Article 3 rights on return to Iran on account of having left Iran illegally and/or being a failed asylum seeker. No such risk exists at the time of questioning on return to Iran nor after the facts (i.e. of illegal exit and being a failed asylum seeker) have been established. In particular, there is not a real risk of prosecution leading to imprisonment.
9. The matter was listed before me on the 5th September 2016. The Appellant was that day represented by Mr G.Brown of Counsel, and the Respondent by Mr G. Harrison, Senior Presenting Officer. The parties agreed that the terms in which SSH was drafted could raise potential problems in its application to this case, where the appellant is not an Iranian male. The decision is expressly drafted to refer only to men. The matter was adjourned to enable the parties to consider whether they wishes to advance any evidence specifically dealing with the position of women on return.
10. Subsequent to this both parties indicated that they had been unable to find any evidence on returning female failed asylum seekrs. It was agreed that the Tribunal could proceed on the basis that the findings in SSH had application in this case.
11. The case was eventually reconvened on the 5th December 2016. The Tribunal was provided with new evidence about the Appellant’s current situation. That is that she is living with her current partner in an extra-marital relationship. She said that she was pregnant. She was cross examined by Mr Harrison. He put it to her that she had been married in Iran and asked what had happened to her husband. She said that she had not had any contact with him for three years. She had put that relationship behind her. She confirmed that she had not, as far as she was aware, been divorced. She had posted her news on ‘facebook’ and a number of people in Iran had left derogatory comments about her behaviour.
12. I then heard evidence from the Appellant’s current partner, Mr MR. MR is also Iranian but has lived in the UK for a long time. He was granted refugee status in 2006, and indefinite leave to remain in 2012. He and the Appellant have been in a relationship since February 2014. He expressed fear about what would happen to her if returned to Iran, because their relationship was adulterous. He could not return with her because he is a refugee and he remains in danger in Iran for reasons of his religious belief (Christianity).
13. The Appellant relied on a number of documents showing that she and MR are registered at the same address. She had no medical evidence to confirm that she was pregnant.
14. In his submissions Mr Harrison accepted that the Appellant would face a real risk of persecution in Iran if the authorities knew or suspected that she was in an adulterous relationship. As to whether she was actually in a relationship with MR he accepted that they lived at the same address but asked me to view their evidence with caution. The Appellant’s credibility as a witness had already been rejected by the First-tier Tribunal (in findings upheld by Judge Kebede). She had not made any previous mention of this relationship, even though there had been several hearings since its alleged inception.
15. Mr Nicholson began from the premise that the Appellant is currently pregnant. He submitted that this was prima facie evidence of her adultery. Even if M (her alleged husband in Iran) did not exist, she had still had sex outside of marriage, a criminal offence punishable under the criminal code in Iran. There was nothing to suggest that she and MR were married under English law. He was a Christian so they cannot have had a nikah. She would not be able to satisfy the Iranian authorities that she was married. She would therefore be at risk of persecution. Mr Harrison did not disagree with this reasoning.
16. At this stage in the proceedings I interrupted Mr Nicholson’s submissions to point out that there was no evidence that the Appellant was in fact pregnant. She had told me that she had taken the test and that it was positive but I was not prepared to allow an asylum appeal on the unsupported assertions of a witness who had already been found not to be credible. This interjection prompted Mr Nicholson to request a short adjournment in order that medical evidence could be obtained from the Appellant’s GP. Mr Harrison indicated that he had no objection to this course of action, observing that if the appeal were dismissed for want of that evidence the Appellant would simply lodge a fresh claim once she had it.
17. I therefore agreed to a short adjournment. Mr Harrison accepted that if the Appellant is pregnant, in the absence of any evidence that she is married to MR, she has made out her case since she would be at risk of persecution in Iran for reasons of her membership of a particular social group, namely women who have committed adultery. Mr Nicholson accepted that if she is not pregnant, her case would very likely fail, since there would be nothing to take her case above that of the failed asylum seekers whose appeals were dismissed in SSH.
18. On the 8th December 2016 the Appellant’s representatives sent to the Tribunal, and to the Respondent, a letter from the Appellant’s GP Dr Sarah Armstrong dated the 7th December 2016 confirming that a positive pregnancy test had been performed at the surgery (Heaton Moor Medical Practice) and that the Appellant had been referred for antenatal care. Unfortunately that document never found its way to me. I sent out directions on the 7th January 2017 pointing out that no evidence had been received. The Appellant’s representatives responded by re-sending Dr Armstrong’s letter, by way of fax dated the 11th January 2017. It is regrettable that neither of those faxes were brought to my attention or linked to the file, until the 6th March 2017. I apologise to both parties for the delay that these cumulative administrative errors have caused.
19. I accept the medical evidence now produced before me that the Appellant is pregnant. In light of that evidence, her oral and documentary evidence and the testimony of MR I am prepared to accept that he is the father of her unborn child. I accept that the couple are not married.
20. In SSH the Tribunal found that those returned to Iran as failed asylum seekers are subjected to a certain level of scrutiny. Although not reasonably likely to face serious harm simply by virtue of having left the country illegally, this on-arrival screening process is targeted at identifying those suspected of having committed other crimes in Iran or abroad [at 21]:
“In our view the evidence does not establish that a failed asylum seeker who had left Iran illegally would be subjected on return to a period of detention or questioning such that there is a real risk of Article 3 ill-treatment. The evidence in our view shows no more than that they will be questioned, and that if there are any particular concerns arising from their previous activities either in Iran or in the United Kingdom or whichever country they are returned from, then there would be a risk of further questioning, detention and potential ill-treatment. In this regard it is relevant to return to Dr Kakhki’s evidence in re-examination where he said that the treatment they would receive would depend on their individual case. If they co-operated and accepted that they left illegally and claimed asylum abroad then there would be no reason for ill-treatment, and questioning would be for a fairly brief period. That seems to us to sum up the position well, and as a consequence we conclude that a person with no history other than that of being a failed asylum seeker who had exited illegally and who could be expected to tell the truth when questioned would not face a real risk of ill-treatment during the period of questioning at the airport…”
21. I accept that if the Appellant has an extra-marital sexual intercourse this would be a “particular concern” for the Iranian authorities. The Respondent’s current Country Policy and Information Note Iran: Adulterers (Version 2.0, November 2016) states as follows:
2.2.1 Adulterers in Iran form a particular social group (PSG) within the meaning of the Refugee Convention. This is because they share an immutable (or innate) characteristic – the fact that they have (allegedly) committed adultery – that cannot be changed; and have a distinct identity in their home society.
2.2.2 Adultery is a specific crime in Iran and punishable by disproportionately severe sentences. In the Court of Justice of the European Communities judgement for the joined cases of C-199/12 to C-201/12, dated November 2013 ([2013] WLR(D) 427, [2013] EUECJ C-199/12), the Court held that ‘the existence of criminal laws which specifically target the group concerned, supports the finding that those persons must be regarded as forming a particular social group.’ (Ruling point 1).
…
2.3.1 Any sexual relationship outside of marriage is considered a crime in Iran and is punishable by 100 lashes and in some cases stoning to death. The last reported stoning sentence for adultery was imposed in December 2015 but the last known execution by stoning took place in 2009. However, the authorities do not release official statistics and punishments often take place in secret. Similarly, no statistics on flogging are made public, and victims avoid talking about them in public for fear of stigmatization, although it was reported that a woman received 100 lashes in Golpayegan as punishment for adultery in April 2016 (see Penal Code and Punishment).
…
2.3.4 Women are at a greater risk of being accused and convicted of adultery owing to negative social stigma associated with women's sexuality, discriminatory laws and societal acceptance of honour crimes. Iranian law allows men to have multiple wives thus allowing them to claim to have both a permanent and temporary marriage at the same time. A temporary marriage contract effectively permits sexual relations for men outside of marriage. Women are not allowed to have multiple spouses making punishment more likely”.
22. In light of that evidence I accept that the Appellant has demonstrated that she faces a real risk of persecution for reasons of her membership of a particular social group in Iran and the appeal must be allowed.

Decisions
23. The determination of the First-tier Tribunal contained an error of law such that it was set aside to a limited extent by Judge Kebede.
24. I remake the decision as follows:
The appeal is allowed on asylum grounds.
The appeal is allowed on human rights grounds.
The Appellant is not entitled to humanitarian protection because she is a refugee.
25. There is an order for anonymity.

Upper Tribunal Judge Bruce
17th March 2017