AA/03192/2014
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The decision
IAC-FH-CK-V1
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/03192/2014
THE IMMIGRATION ACTS
Heard at Field House
Decision & Reasons Promulgated
On 27 February 2015
On 4 March 2015
Before
DEPUTY UPPER TRIBUNAL JUDGE I A LEWIS
Between
M. M.
(anonymity direction made)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr K Gayle of Elder Rahimi Solicitors
For the Respondent: Ms A Brocklesby-Weller, Home Office Presenting Officer
DECISION AND REASONS
1. This appeal comes back before me today pursuant to the decision made in respect of 'error of law' at a hearing on 12 December 2014. The 'Error of Law' decision is appended to this decision for ease of reference. In that decision I found that whilst aspects of the First-tier Tribunal's fact-finding in respect of events leading up to, and reasons for, departing Iran were unimpugnable there was a material error of law in respect to the Appellant's post-exit activities and in particular his work as a musician: see 'Error of Law' decision at paragraphs 12-15.
2. Directions were given at that hearing in respect of the filing of further evidence, and further evidence has now been filed on behalf of the Appellant by way of a supplementary bundle of documents in two sections, sections S and T, and a further couple of documents under cover of a letter dated 26 February being supporting evidence from a poet and songwriter to whom I shall refer as A (his full details are a matter of record on file).
Preliminary Issue
3. Before me today Ms Brocklesby-Weller raised a preliminary point in respect of a forthcoming 'country guidance' case in the linked appeals AA/04493/2011, AA/13363/2011 and AA/04380/2011. Those cases have been heard by the Upper Tribunal, and I was shown a letter dated 3 February 2015 from the Principal Resident Judge at Field House indicating that it is hoped that decisions will be available soon. It is said that the facts of those particular cases relate in particular to the 'blogging' activities of the individual appellants. Ms Brocklesby-Weller sought an adjournment to await the outcome of those linked appeals before proceeding to a conclusion in the current case. Mr Gayle opposed that application, submitting that the instant case stood on its own facts which were significantly different from the activities of a blogger.
4. I accept Mr Gayle's submission in this regard. In the absence of any more detailed information concerning the facts of the awaited country guidance cases, and bearing in mind the issues and evidence in this particular case, I am satisfied that it is appropriate to proceed and that an adjournment is not warranted to ensure fair disposal of the appeal.
Consideration
5. In remaking the decision I have had regard to the relevant jurisprudence in respect of claims for protection under the Refugee Convention and the ECHR, and for humanitarian protection.
6. In particular I have reminded myself that it is for the Appellant to show that he or she is a refugee.
7. By Article 1A(2) of the Refugee Convention a refugee is a person who is out of the country of his or her nationality and who, owing to a well-founded fear of persecution for reasons of race, religion, nationality or membership of a particular social group or political opinion, is unable or unwilling to avail him or herself of the protection of the country of origin.
8. The degree of likelihood of persecution needed to establish an entitlement to asylum is decided on a basis lower than the civil standard of the balance of probabilities. This is expressed as 'a reasonable chance', 'a serious possibility' or 'substantial grounds for thinking' in the various authorities. That basis of probability not only applies to the history of the matter and the situation at the date of decision but also to the question of persecution in the future if the Appellant were to be returned. In accordance with the judgment in Karanakaran [2000] EWCA Civ 11 it is an evaluative process of a single composite question: see in particular paragraphs 50, 56 and 98-104 of the judgment of Lord Justice Brooke, and paragraphs 14-19 of Lord Justice Sedley's judgement.
9. It is the Appellant's case that his activities as a musician constitute anti-regime activity, or alternatively activity inconsistent with the values that the regime seeks to impose upon its subjects, to an extent that he would be of adverse interest amounting to persecutory harm if he were to be returned to Iran at the present time. In support of his case he relies upon the materials now filed, in addition to the materials before the First-tier Tribunal to demonstrate his activities as a musician.
10. In the premises, the Respondent accepts that the Appellant is a musician. See the 'reasons for refusal' letter ('RFRL') of 2 May 2014 at paragraph 27, where the Respondent refers to accessing one of the Appellant's videos on YouTube and also conducting a Google search using the Appellant's name.
11. The materials now filed in the supplementary bundle are accompanied by a DVD and by a witness statement signed on 13 February 2015 by the Appellant explaining the contents of the DVD and the additional supporting materials.
12. After viewing the DVD Ms Brocklesby-Weller indicated that she did not wish to question the Appellant in respect of his witness statement, and accordingly subject to playing the DVD in open court the appeal proceeded by way of submissions.
13. I have made a note of the submissions in the Record of Proceedings, which is on file, and I have had regard to everything that was said at the hearing in reaching my decision.
14. The Appellant relies in particular on the following matters:
(1) A song called 'Ehsas' (that translates as 'Feeling'), and an accompanying video uploaded in 2012. This song and video were produced prior to the Appellant's exit from Iran. The Appellant describes the song in his witness statement as "an innocuous love song" but draws attention to the romantic imagery in the accompanying video, in particular a woman appearing without any head covering.
(2) A song, 'Tomorrow', and accompanying video. The video to this song was uploaded to the internet in May 2014. The lyrics to the song are set out in translation at page S4 of the Appellant's supplementary bundle. They make reference to 'fighting for tomorrow' and 'battling' together. The imagery accompanying this song constitutes a number of still pictures and pieces of video footages depicting of anti-regime demonstrations and the putting down of such demonstrations by force.
(3) A song 'The Beauty in Chains', and accompanying video. This piece was only uploaded two days prior to the hearing. The accompanying video is a still graphic made up of the border outline of Iran with a line drawing rendition of the Appellant's face appearing within the outline. The Appellant's name also appears on the graphic. The lyrics to the song - which are reproduced in translation at pages S6-S7 of the Respondent's bundle - are in my judgment overtly political. They characterise the Appellant's homeland as the 'home of destruction', also referring to it as a 'lifeless' homeland, "a land heartsick with lifelessness" and a "chained beauty".
(4) Footage of the video to 'Tomorrow' being shown on two television programmes: one broadcast on 14 August 2014 on Manoto TV; and another broadcast on 21 August 2014 on a channel called Barandazan (which translates as 'the overthrowers'.
(5) Footage of the Appellant being interviewed on a programme "A Talk with Sirvash Amani" on the Iran REA channel. The translated transcript of this interview is reproduced in the Appellant's supplementary bundle at pages S10-S12. I note from the lengthy spoken piece by the Appellant during the discussion on that television programme that he expressed words to the effect that he considered it an honour to be able to perform this particular song which gave voice to the people of Iran, and he also encouraged people to unite and think for only freeing Iran.
15. I have no hesitation in concluding that the songs and images of 'Tomorrow' and the song of 'The Beauty in Chains' are overtly political, that they have been uploaded to the internet and they have attracted attention in the Diaspora and media, and that the video for 'Tomorrow' has been broadcast through television channels as well as being available to view on the internet. It is also the case that the Appellant has been interviewed in respect of this video and has expressed opinions concerning the unity of the people and advocating a movement towards freedom.
16. In those circumstances the issues become the likelihood of such activities being known to the authorities in Iran, and whether they are such as to give rise to an adverse interest in the Appellant.
17. In this context I do not accept the premise of the Respondent's primary submission today, that in the absence of actual evidence of actions taken against the Appellant's family in Iran or other overt evidence of adverse interest in the Appellant that he cannot demonstrate an entitlement to protection. What is germane is the question of risk, and that may be evaluated by reference to country information in the absence of any evidence relating directly or specifically to the Appellant. In this context, for the avoidance of any doubt, I do not accept that the fact that the Appellant's family may not have been targeted in his absence is reliably indicative of an absence of risk to the Appellant.
18. Ms Brocklesby-Weller did not seek to direct my attention to any particular item of country information or background evidence, but did acknowledge that the case of BA (Demonstrators in Britain - risk on return) Iran CG [2011] UKUT 36 (IAC) constituted the most recent and relevant country guidance. That case is primarily directed at participants in rallies and demonstrations, but it does nonetheless contain relevant guidance both generally and specifically with regard to persons who might be perceived as opponents of the regime. From the headnote I note in particular the contents at paragraph 4 in respect of 'sur place' activity, identification risk, and factors triggering inquiry or action on return, and in particular the issue of profile - "is the person known as a committed opponent or someone with a significant political profile; does he fall within a category which the regime regards as especially objectionable?"
19. By way of background information it is also germane to note the contents of paragraphs 60 and 61 of the Respondent's RFRL, which are in the following terms:
"60. With regard to your risk on return because of your claimed political activity in the UK, it is noted that the US State Department 2010 Report of Human Rights in Iran states that:
'The government monitored Internet communications, especially via social networking Web sites such as Facebook, Twitter, and YouTube, and collected individuals' personally identifiable information in connection with peaceful expression of views. The government threatened, harassed, and arrested individuals who posted comments critical of the government on the Internet; in some cases it reportedly confiscated their passports or arrested their family members?. Freedom House and other human rights organisations reported that authorities sometimes stopped citizens at Tehran International Airport as they arrived in the country, asked them to log into their YouTube and Facebook accounts, and in some cases found them to delete information.'
61. Similarly, on 4 December 2009 the Wall Street Journal reported that:
'In recent months Iran has been conducting a campaign of harassing and intimidating members of its diaspora world-wide - not just prominent dissidents - who criticise the regime, according to former Iranian lawmakers and former members of Iran's elite security force, the Revolutionary Guard, with knowledge of the program. Part of the effort involves tracking the Facebook, Twitter and YouTube activity of Iranians around the world, and identifying them at opposition protests abroad, these people say.'"
20. Necessarily the Appellant's activities go beyond mere comment, or reposting, or reTweeting information on his own personal social networking pages. It is his works - for some of which he is responsible for the lyrical content, and in some of which he appears as the vocal artist - that carry a message that it is hoped will be viewed and shared by others.
21. In respect of profile, in my judgment in addition to the broadcast of the Appellant's works and his invitation to participate in a broadcast discussion, it is also relevant to note the evidence provided by the Iranian poet A by way of a supporting letter dated 24 February 2015 in which he refers to the Appellant as a 'voice of the modern Iranian people' and as 'an atheist artist', who has offered his artistic contribution to support the secular movement of his birthplace. Attached to the supporting letter is a biography of A which indicates his own particular anti-regime profile. I accept the submission that the Appellant's association with such an individual is relevant to an evaluation of the Appellant's own profile.
22. I also note that in the supplementary bundle the Appellant has provided a petition organised by the Federation of Iraqi Refugees. As part of that petition it is stated that the Appellant "is a well-known Iranian atheist, famous singer and songwriter", and that he became involved in politics following the 2009 Green Revolution. It is a petition urging that the Appellant be allowed to remain in the United Kingdom. In isolation that document might be criticised as being essentially self-serving. However, in context it is broadly consistent with the other materials on file in respect of the Appellant's profile and in those circumstances I accord it weight as further evidence of the Appellant's profile.
23. In respect of country information Mr Gayle directed me to a number of extracts in the materials that have been submitted in support of the Appellant's case, and in particular I note the following two reports that appear at pages B17 and B25 of the bundle that was before the First-tier Tribunal.
24. At B17 is a report dated 11 December 2013 produced by the International Campaign for Human Rights in Iran entitled "International Campaign for Human Rights in Iran, IRGC Forces Arrest Music Distributors, Pressure Them to Confess on Television". From that item I note in particular the following:
"Since the establishment of the Islamic Republic of Iran Iranian musicians have needed government authorisation in order to play their music, hold concerts and produce music albums and videos. Government scrutiny of such musical activities and productions has been stringent and only certain genres of music receive production and activity licences. Under such circumstances musicians have been pushed underground where they perform illegally at great risk to themselves and to their audiences. Even when musical groups are issued concert licences there is no guarantee that they can safely hold their scheduled appearances. At an August concert of Dawn of Rage, an Iranian metal band, all the musicians and the 200 guests attending the concert were arrested at a public amphitheatre in Tehran."
That report clearly indicates the very restrictive approach the authorities take to those wishing to express themselves through the medium of music.
25. At B25 there is a report headed "Musicians in Iran: An Uphill Struggle All the Way" dated 21 June 2013. The source for this report is the internet portal Quantara.de and it is stated that the portal "represents the concerted effort of the Federal Centre for Political Education and the Institute for Foreign Cultural Relations to promote dialogue with the Islamic world and is a project funded by the German Foreign Office". Within that article the following appears:
"Singer Arya Aramnejad from Babol in northern Iran was among them. His song 'Ali Barkhiz', which he put out during the religious Ashura Festival in 2009, proved his undoing. In the music video for the track he sang 'what sin have the people committed? / We just want freedom', while showing scenes of bloody clashes between militia and demonstrators.'
Aramnejad went on to call upon the Imam Ali, considered by many Muslims to be the very first imam, to rise up and do something. As a result of his song the musician was repeatedly sent to prison where he suffered many reprisals. He was only released again in early 2013."
It seems to me that there are parallels to be drawn between the circumstances thus described and both the lyrical content of the Appellant's songs with his expression of wishes for freedom and unity, and the images in the video for 'Tomorrow' of bloody clashes between militia and demonstrators.
26. Taking all of those matters together and considering them 'in the round' I find that in all the circumstances I am satisfied that the overtly political content of the Appellant's more recent output post-exit from Iran is reasonably likely known to the authorities with the consequence that the Appellant is at risk of adverse interest with concomitant risk of serious harm. The Appellant's fear of persecution on political grounds is in my judgment well-founded and he is entitled to the protection of the Refugee Convention.
27. In the circumstances it is not necessary for me to reach a specific conclusion in respect of the Appellant's earlier video for the love song 'Feelings'. As acknowledged by Mr Gayle during the course of submissions western videos - with similar or more explicit content - are widely available and watched in Iran. It may be that there is some additional element to the Appellant's particular video because it was produced in Iran, and a parallel is drawn with the production of videos within Iran of young people miming to the song 'Happy' by Pharrell Williams dressed in a manner that is inconsistent with the strict dress code favoured by the regime. On the other hand, as pointed out by the Ms Brocklesby-Weller today, it must be borne in mind that this is an older video and there were findings by the First-tier Tribunal which remain unimpugned that the video did not cause the Appellant any difficulties prior to his exit from Iran. However, as I say, in the circumstances it seems to me unnecessary to come to any conclusion in this regard bearing in mind what I consider to be the overtly political nature of the more recent post-exit output.
Notice of Decision
28. The appeal is allowed on asylum grounds.
29. I make an anonymity order (see below).
The above represents a corrected transcript of an ex-tempore decision given at the hearing on 27 February 2015.
Signed Date: 3 March 2015
Deputy Upper Tribunal Judge I A Lewis
Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
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. Failure to comply with this direction could lead to contempt of court proceedings.
Signed Date: 3 March 2015
Deputy Upper Tribunal Judge I A Lewis
TO THE RESPONDENT
FEE AWARD
No fee is paid or payable and therefore there can be no fee award.
Signed Date: 3 March 2015
Deputy Upper Tribunal Judge I A Lewis
APPENDIX
Text of the 'Error of Law' decision made pursuant to the hearing on 12 December 2014
DECISION AND REASONS: ERROR OF LAW
1. This is an appeal against the decision of First-tier Tribunal Judge Petherbridge promulgated on 4 July 2014 allowing the Appellant's appeal against the decision of the Respondent dated 2 May 2014 to remove him from the UK subsequent to a refusal of asylum.
Background
2. The Appellant is a national of Iran born on 24 June 1981. His immigration history is summarised in the cover sheet to the Respondent's bundle before the First-tier Tribunal (extracted from the Respondent's 'reasons for refusal' letter ('RFRL') dated 2 May 2014. It is also summarised at paragraphs 11-14 of the First-tier Tribunal Judge's determination. These are matters of record and known to the parties and accordingly it is unnecessary for me to set them out in any detail here. I refer to aspects of the history as is incidental for the purpose of this document.
3. The Appellant claimed asylum in April 2011. The Respondent refused the application for reasons set out in the RFRL of 2 May 2014, and a decision to remove the Appellant was taken in consequence. The Appellant appealed to the IAC.
4. The First-tier Tribunal Judge dismissed the Appellant's appeal for reasons set out in his determination.
5. The Appellant sought permission to appeal which was initially refused by First-tier Tribunal Judge Fisher on 24 July 2014, but subsequently granted by Upper Tribunal Judge Kebede on 30 October 2014.
6. The Respondent has filed a Rule 24 response dated 24 November 2014 resisting the challenge to the decision of Judge Petherbridge.
Consideration: Error of Law
7. The Appellant essentially raises two bases of challenge against the decision of Judge Petherbridge: the Judge failed to provide sustainable reasons for adverse credibility findings; further or alternatively the Judge erred in failing to take into account the supporting evidence that it was said indicated that songs of the Appellant's with an anti-regime content had been posted on the Internet.
8. In my judgement the first basis of challenge was essentially a disagreement with the findings of the First-tier Tribunal Judge in respect of the events leading to the Appellant's departure from Iran, and the manner of his departure, and did not disclose any error of law on the part of the Judge. In this context I note the following:
(i) The Judge concluded that he did "not accept [the Appellant] as a credible witness in respect of the manner in which he came to leave Iran in April 2011" (paragraph 62). This was because the Judge did "not accept that the Schengen visa issued by the Italian authorities granted on the 23 January 2011 to the 02 May 2011 was not a visa that was not issued to the Appellant in respect of his own passport" (paragraph 63) The Judge explained his reasoning at paragraphs 64-78, concluding also that he rejected that the Appellant's music studio had been raided in April 2011, or that his house was raided and that his brother was subsequently arrested but released.
(ii) The Respondent had raised an issue in respect of the documentation used by the Appellant during his journey to the UK in the RFRL: see paragraphs 40-47. In short, records showed that a Schengen visa had been issued by the Italian Internal Ministry to a person bearing the Appellant's name with identical passport details to those that the Appellant was recorded as using in Brussels on 25 April 2011. It was considered that this undermined the Appellant's claim in respect of the events that led to his departure from Iran and the circumstances of his departure. On appeal the Appellant claimed that the passport with the Schengen visa was not his genuine Iranian passport, and produced a photocopy of what he claimed was his genuine passport now sent to him by his brother from Iran.
(iii) The Judge for cogent and entirely sustainable reasons explained at paragraphs 66-77 why he rejected the Appellant's explanation. It necessarily followed that if the Appellant had applied for a Schengen visa in January 2011 using his own passport, his account of having decided to quit Iran following events in April 2011 was seriously undermined.
(iv) The challenge in this regard came down to a submission that the Judge had been in error in failing to "deal with the absence of any fingerprint evidence linking the Schengen visa to the Appellant" (see grounds at paragraph 5).
(v) I note that it is clear that the Judge was aware that there was no relevant fingerprint evidence because a submission had been made to this effect, and recorded in the determination: see paragraph 60.
(vi) Before me Mr Kirk acknowledged that what the Judge had done was to determine the issue on the available evidence. He also acknowledged that insofar as the judge had determined the matter on the available evidence, there was no deficiency in his reasoning that could constitute an error of law.
(vii) In all the circumstances I do not accept that the Judge made his decision in ignorance of the fact that there was no fingerprint evidence, or - more particularly - that he should have accorded such weight to the absence of fingerprint evidence such that his reasoning in respect of the available evidence was rendered unsafe. There is no merit in this ground of challenge.
9. In the circumstances the Judge was entitled to conclude that at the time of his departure from Iran the Appellant was not a person in respect of whom the authorities had an adverse interest, and indeed that he had not fled for such reasons. Necessarily this meant that the Appellant could only succeed in his appeal on the basis of his claim to be a well-known musician responsible for what he and his representatives have broadly termed 'anti-regime' songs and videos that might reasonably likely attract the adverse attention of the authorities in Iran.
10. During the course of discussion before me, it appeared that this aspect of the claim had been relatively poorly formulated and particularised before the First-tier Tribunal, and moreover, there was little by way of supporting evidence identifying a direct connection between the Appellant and the broadcast / posting of expressly anti-regime lyrics. There was, for example, no supporting evidence that expressly connected the Appellant with Radio Farda; it was accepted that the screenshots of Internet postings of the Appellant songs did not identify them as being political songs; insofar as my attention was directed to actual lyrics for which translations were available, these were not overtly political (albeit that a political message might be contained therein by way of metaphor or allegory). I note that as part of the argument Mr Kirk submitted that there might reasonably likely be an element of risk by reason of the content of music videos posted on YouTube of a romantic nature with depictions of women that would be deemed unsuitable in Iran. It was also suggested - although not seemingly previously clearly formulated in this manner - that the authorities in Iran would be able to connect the Appellant to political songs by reason of his computer having been seized by the Revolutionary Guard. My attention was also directed to various aspects of the background or country information that was before the First-tier Tribunal that suggested a general crackdown on music production and censorship of music.
11. I remind myself that at this stage I am not determining the overall merits of the claim (and indeed necessarily have not embarked on a fact-finding exercise or otherwise reached any conclusions): however, it is relevant to have regard to the substance of the Appellant's case in so far as it may impact upon the materiality of any claimed error on the part of the First-tier Tribunal. Notwithstanding the observations in the preceding paragraph, it does seem to me that there were materials before the First-tier Tribunal arguably capable of establishing a risk on return arising from the Appellants activities as a musician. The issue therefore becomes whether the First-tier Tribunal properly had regard to such matters.
12. I am persuaded that there is substance to the second basis of challenge and have concluded that the Judge did err in his approach.
13. The Judge accepted that the Appellant was a musician who had written songs (paragraph 79), and also accepted that "the objective evidence would suggest that the Iranian authorities are very mindful of any dissent of the regime, whether it comes from inside the country or outside" in the context of evidence relating to the authorities' reaction to six young Iranians involvement in miming to a video of the hit song 'Happy' (paragraph 80). The Judge also seem to accept that Radio Farda was "a radio station that has political undertones and which would be monitored by the authorities in Iran [and] that if his records contain any disparaging remarks of the regime or its ideology would have brought him to the attention of the authorities" (paragraph 83). However, the Judge concluded against the Appellant's claim in this regard on the basis that the Appellant had failed to demonstrate a connection with, or that his songs had been played on, Radio Farda (paragraph 81), and because "there is no evidence that his song written to date has become of any interest to the authorities" (paragraph 83).
14. I accept that the Judge's reasoning in this regard is flawed because of the omission of any reference to the posting of the Appellant's works on YouTube. There is no analysis of the nature of those songs, the contents of the videos, or any finding as to whether the authorities are reasonably likely to monitor such output.
15. In all such circumstances I find that the First-tier Tribunal Judge materially erred, and that the decision of the First-tier Tribunal must be set aside in so far as it relates to the Appellant's activities as a musician in the context of events since his departure from Iran. Those aspects of the decision that relate to the Appellants activities in Iran, and the circumstances leading up to his departure from Iran are not impugnable.
Future Conduct of the Appeal
16. Because the appeal only requires re-making in one limited - albeit potentially determinatively significant aspect - it is not necessary for it to be remitted to the First-tier Tribunal. I consider that the matter may appropriately be dealt with in the Upper Tribunal - subject to some necessary Directions required in order that the basis of the Appellant's case be clarified in respect of the claimed anti-regime nature of his published musical works: see further my observations above at paragraph 10. I gave an indication as to the nature of the required clarification in line with the Directions set out below at the conclusion of the error of law hearing.
Notice of Decision
17. The decision of the First-tier Tribunal Judge contained a material error of law and is set aside.
18. The decision in the appeal is to be remade before the Upper Tribunal, reserved to me, on 27 February 2015. The findings of the First-tier Tribunal in respect of events up to the Appellant's departure from Iran, and his journey to the UK, are to be preserved: evidence and submissions will be entertained in respect of the Appellant's claimed risk by reason of his activities as a musician, and in particular his claimed broadcast/publication/posting of anti-regime, music and videos.
Consequent Directions
(i) The Appellant is to provide all such materials as he seeks to rely upon in a consolidated bundle, and/or in an accessible electronic format as appropriate, to demonstrate that the contents of his music, either lyrically, or stylistically, or in the way presented through videos, is likely to be seen as offensive by the authorities in Iran. Such evidence is to include details of when and where any of his works were broadcast/published/posted, and any relevant background or country information on risk.
(ii) The Appellant is to provide a written argument identifying/clarifying the nature of any 'anti-regime' content in any of his lyrics/videos.
(iii) All such materials and written submissions are to be filed and served at least seven days prior to the resumed hearing.
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/03192/2014
THE IMMIGRATION ACTS
Heard at Field House
Decision & Reasons Promulgated
On 27 February 2015
On 4 March 2015
Before
DEPUTY UPPER TRIBUNAL JUDGE I A LEWIS
Between
M. M.
(anonymity direction made)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr K Gayle of Elder Rahimi Solicitors
For the Respondent: Ms A Brocklesby-Weller, Home Office Presenting Officer
DECISION AND REASONS
1. This appeal comes back before me today pursuant to the decision made in respect of 'error of law' at a hearing on 12 December 2014. The 'Error of Law' decision is appended to this decision for ease of reference. In that decision I found that whilst aspects of the First-tier Tribunal's fact-finding in respect of events leading up to, and reasons for, departing Iran were unimpugnable there was a material error of law in respect to the Appellant's post-exit activities and in particular his work as a musician: see 'Error of Law' decision at paragraphs 12-15.
2. Directions were given at that hearing in respect of the filing of further evidence, and further evidence has now been filed on behalf of the Appellant by way of a supplementary bundle of documents in two sections, sections S and T, and a further couple of documents under cover of a letter dated 26 February being supporting evidence from a poet and songwriter to whom I shall refer as A (his full details are a matter of record on file).
Preliminary Issue
3. Before me today Ms Brocklesby-Weller raised a preliminary point in respect of a forthcoming 'country guidance' case in the linked appeals AA/04493/2011, AA/13363/2011 and AA/04380/2011. Those cases have been heard by the Upper Tribunal, and I was shown a letter dated 3 February 2015 from the Principal Resident Judge at Field House indicating that it is hoped that decisions will be available soon. It is said that the facts of those particular cases relate in particular to the 'blogging' activities of the individual appellants. Ms Brocklesby-Weller sought an adjournment to await the outcome of those linked appeals before proceeding to a conclusion in the current case. Mr Gayle opposed that application, submitting that the instant case stood on its own facts which were significantly different from the activities of a blogger.
4. I accept Mr Gayle's submission in this regard. In the absence of any more detailed information concerning the facts of the awaited country guidance cases, and bearing in mind the issues and evidence in this particular case, I am satisfied that it is appropriate to proceed and that an adjournment is not warranted to ensure fair disposal of the appeal.
Consideration
5. In remaking the decision I have had regard to the relevant jurisprudence in respect of claims for protection under the Refugee Convention and the ECHR, and for humanitarian protection.
6. In particular I have reminded myself that it is for the Appellant to show that he or she is a refugee.
7. By Article 1A(2) of the Refugee Convention a refugee is a person who is out of the country of his or her nationality and who, owing to a well-founded fear of persecution for reasons of race, religion, nationality or membership of a particular social group or political opinion, is unable or unwilling to avail him or herself of the protection of the country of origin.
8. The degree of likelihood of persecution needed to establish an entitlement to asylum is decided on a basis lower than the civil standard of the balance of probabilities. This is expressed as 'a reasonable chance', 'a serious possibility' or 'substantial grounds for thinking' in the various authorities. That basis of probability not only applies to the history of the matter and the situation at the date of decision but also to the question of persecution in the future if the Appellant were to be returned. In accordance with the judgment in Karanakaran [2000] EWCA Civ 11 it is an evaluative process of a single composite question: see in particular paragraphs 50, 56 and 98-104 of the judgment of Lord Justice Brooke, and paragraphs 14-19 of Lord Justice Sedley's judgement.
9. It is the Appellant's case that his activities as a musician constitute anti-regime activity, or alternatively activity inconsistent with the values that the regime seeks to impose upon its subjects, to an extent that he would be of adverse interest amounting to persecutory harm if he were to be returned to Iran at the present time. In support of his case he relies upon the materials now filed, in addition to the materials before the First-tier Tribunal to demonstrate his activities as a musician.
10. In the premises, the Respondent accepts that the Appellant is a musician. See the 'reasons for refusal' letter ('RFRL') of 2 May 2014 at paragraph 27, where the Respondent refers to accessing one of the Appellant's videos on YouTube and also conducting a Google search using the Appellant's name.
11. The materials now filed in the supplementary bundle are accompanied by a DVD and by a witness statement signed on 13 February 2015 by the Appellant explaining the contents of the DVD and the additional supporting materials.
12. After viewing the DVD Ms Brocklesby-Weller indicated that she did not wish to question the Appellant in respect of his witness statement, and accordingly subject to playing the DVD in open court the appeal proceeded by way of submissions.
13. I have made a note of the submissions in the Record of Proceedings, which is on file, and I have had regard to everything that was said at the hearing in reaching my decision.
14. The Appellant relies in particular on the following matters:
(1) A song called 'Ehsas' (that translates as 'Feeling'), and an accompanying video uploaded in 2012. This song and video were produced prior to the Appellant's exit from Iran. The Appellant describes the song in his witness statement as "an innocuous love song" but draws attention to the romantic imagery in the accompanying video, in particular a woman appearing without any head covering.
(2) A song, 'Tomorrow', and accompanying video. The video to this song was uploaded to the internet in May 2014. The lyrics to the song are set out in translation at page S4 of the Appellant's supplementary bundle. They make reference to 'fighting for tomorrow' and 'battling' together. The imagery accompanying this song constitutes a number of still pictures and pieces of video footages depicting of anti-regime demonstrations and the putting down of such demonstrations by force.
(3) A song 'The Beauty in Chains', and accompanying video. This piece was only uploaded two days prior to the hearing. The accompanying video is a still graphic made up of the border outline of Iran with a line drawing rendition of the Appellant's face appearing within the outline. The Appellant's name also appears on the graphic. The lyrics to the song - which are reproduced in translation at pages S6-S7 of the Respondent's bundle - are in my judgment overtly political. They characterise the Appellant's homeland as the 'home of destruction', also referring to it as a 'lifeless' homeland, "a land heartsick with lifelessness" and a "chained beauty".
(4) Footage of the video to 'Tomorrow' being shown on two television programmes: one broadcast on 14 August 2014 on Manoto TV; and another broadcast on 21 August 2014 on a channel called Barandazan (which translates as 'the overthrowers'.
(5) Footage of the Appellant being interviewed on a programme "A Talk with Sirvash Amani" on the Iran REA channel. The translated transcript of this interview is reproduced in the Appellant's supplementary bundle at pages S10-S12. I note from the lengthy spoken piece by the Appellant during the discussion on that television programme that he expressed words to the effect that he considered it an honour to be able to perform this particular song which gave voice to the people of Iran, and he also encouraged people to unite and think for only freeing Iran.
15. I have no hesitation in concluding that the songs and images of 'Tomorrow' and the song of 'The Beauty in Chains' are overtly political, that they have been uploaded to the internet and they have attracted attention in the Diaspora and media, and that the video for 'Tomorrow' has been broadcast through television channels as well as being available to view on the internet. It is also the case that the Appellant has been interviewed in respect of this video and has expressed opinions concerning the unity of the people and advocating a movement towards freedom.
16. In those circumstances the issues become the likelihood of such activities being known to the authorities in Iran, and whether they are such as to give rise to an adverse interest in the Appellant.
17. In this context I do not accept the premise of the Respondent's primary submission today, that in the absence of actual evidence of actions taken against the Appellant's family in Iran or other overt evidence of adverse interest in the Appellant that he cannot demonstrate an entitlement to protection. What is germane is the question of risk, and that may be evaluated by reference to country information in the absence of any evidence relating directly or specifically to the Appellant. In this context, for the avoidance of any doubt, I do not accept that the fact that the Appellant's family may not have been targeted in his absence is reliably indicative of an absence of risk to the Appellant.
18. Ms Brocklesby-Weller did not seek to direct my attention to any particular item of country information or background evidence, but did acknowledge that the case of BA (Demonstrators in Britain - risk on return) Iran CG [2011] UKUT 36 (IAC) constituted the most recent and relevant country guidance. That case is primarily directed at participants in rallies and demonstrations, but it does nonetheless contain relevant guidance both generally and specifically with regard to persons who might be perceived as opponents of the regime. From the headnote I note in particular the contents at paragraph 4 in respect of 'sur place' activity, identification risk, and factors triggering inquiry or action on return, and in particular the issue of profile - "is the person known as a committed opponent or someone with a significant political profile; does he fall within a category which the regime regards as especially objectionable?"
19. By way of background information it is also germane to note the contents of paragraphs 60 and 61 of the Respondent's RFRL, which are in the following terms:
"60. With regard to your risk on return because of your claimed political activity in the UK, it is noted that the US State Department 2010 Report of Human Rights in Iran states that:
'The government monitored Internet communications, especially via social networking Web sites such as Facebook, Twitter, and YouTube, and collected individuals' personally identifiable information in connection with peaceful expression of views. The government threatened, harassed, and arrested individuals who posted comments critical of the government on the Internet; in some cases it reportedly confiscated their passports or arrested their family members?. Freedom House and other human rights organisations reported that authorities sometimes stopped citizens at Tehran International Airport as they arrived in the country, asked them to log into their YouTube and Facebook accounts, and in some cases found them to delete information.'
61. Similarly, on 4 December 2009 the Wall Street Journal reported that:
'In recent months Iran has been conducting a campaign of harassing and intimidating members of its diaspora world-wide - not just prominent dissidents - who criticise the regime, according to former Iranian lawmakers and former members of Iran's elite security force, the Revolutionary Guard, with knowledge of the program. Part of the effort involves tracking the Facebook, Twitter and YouTube activity of Iranians around the world, and identifying them at opposition protests abroad, these people say.'"
20. Necessarily the Appellant's activities go beyond mere comment, or reposting, or reTweeting information on his own personal social networking pages. It is his works - for some of which he is responsible for the lyrical content, and in some of which he appears as the vocal artist - that carry a message that it is hoped will be viewed and shared by others.
21. In respect of profile, in my judgment in addition to the broadcast of the Appellant's works and his invitation to participate in a broadcast discussion, it is also relevant to note the evidence provided by the Iranian poet A by way of a supporting letter dated 24 February 2015 in which he refers to the Appellant as a 'voice of the modern Iranian people' and as 'an atheist artist', who has offered his artistic contribution to support the secular movement of his birthplace. Attached to the supporting letter is a biography of A which indicates his own particular anti-regime profile. I accept the submission that the Appellant's association with such an individual is relevant to an evaluation of the Appellant's own profile.
22. I also note that in the supplementary bundle the Appellant has provided a petition organised by the Federation of Iraqi Refugees. As part of that petition it is stated that the Appellant "is a well-known Iranian atheist, famous singer and songwriter", and that he became involved in politics following the 2009 Green Revolution. It is a petition urging that the Appellant be allowed to remain in the United Kingdom. In isolation that document might be criticised as being essentially self-serving. However, in context it is broadly consistent with the other materials on file in respect of the Appellant's profile and in those circumstances I accord it weight as further evidence of the Appellant's profile.
23. In respect of country information Mr Gayle directed me to a number of extracts in the materials that have been submitted in support of the Appellant's case, and in particular I note the following two reports that appear at pages B17 and B25 of the bundle that was before the First-tier Tribunal.
24. At B17 is a report dated 11 December 2013 produced by the International Campaign for Human Rights in Iran entitled "International Campaign for Human Rights in Iran, IRGC Forces Arrest Music Distributors, Pressure Them to Confess on Television". From that item I note in particular the following:
"Since the establishment of the Islamic Republic of Iran Iranian musicians have needed government authorisation in order to play their music, hold concerts and produce music albums and videos. Government scrutiny of such musical activities and productions has been stringent and only certain genres of music receive production and activity licences. Under such circumstances musicians have been pushed underground where they perform illegally at great risk to themselves and to their audiences. Even when musical groups are issued concert licences there is no guarantee that they can safely hold their scheduled appearances. At an August concert of Dawn of Rage, an Iranian metal band, all the musicians and the 200 guests attending the concert were arrested at a public amphitheatre in Tehran."
That report clearly indicates the very restrictive approach the authorities take to those wishing to express themselves through the medium of music.
25. At B25 there is a report headed "Musicians in Iran: An Uphill Struggle All the Way" dated 21 June 2013. The source for this report is the internet portal Quantara.de and it is stated that the portal "represents the concerted effort of the Federal Centre for Political Education and the Institute for Foreign Cultural Relations to promote dialogue with the Islamic world and is a project funded by the German Foreign Office". Within that article the following appears:
"Singer Arya Aramnejad from Babol in northern Iran was among them. His song 'Ali Barkhiz', which he put out during the religious Ashura Festival in 2009, proved his undoing. In the music video for the track he sang 'what sin have the people committed? / We just want freedom', while showing scenes of bloody clashes between militia and demonstrators.'
Aramnejad went on to call upon the Imam Ali, considered by many Muslims to be the very first imam, to rise up and do something. As a result of his song the musician was repeatedly sent to prison where he suffered many reprisals. He was only released again in early 2013."
It seems to me that there are parallels to be drawn between the circumstances thus described and both the lyrical content of the Appellant's songs with his expression of wishes for freedom and unity, and the images in the video for 'Tomorrow' of bloody clashes between militia and demonstrators.
26. Taking all of those matters together and considering them 'in the round' I find that in all the circumstances I am satisfied that the overtly political content of the Appellant's more recent output post-exit from Iran is reasonably likely known to the authorities with the consequence that the Appellant is at risk of adverse interest with concomitant risk of serious harm. The Appellant's fear of persecution on political grounds is in my judgment well-founded and he is entitled to the protection of the Refugee Convention.
27. In the circumstances it is not necessary for me to reach a specific conclusion in respect of the Appellant's earlier video for the love song 'Feelings'. As acknowledged by Mr Gayle during the course of submissions western videos - with similar or more explicit content - are widely available and watched in Iran. It may be that there is some additional element to the Appellant's particular video because it was produced in Iran, and a parallel is drawn with the production of videos within Iran of young people miming to the song 'Happy' by Pharrell Williams dressed in a manner that is inconsistent with the strict dress code favoured by the regime. On the other hand, as pointed out by the Ms Brocklesby-Weller today, it must be borne in mind that this is an older video and there were findings by the First-tier Tribunal which remain unimpugned that the video did not cause the Appellant any difficulties prior to his exit from Iran. However, as I say, in the circumstances it seems to me unnecessary to come to any conclusion in this regard bearing in mind what I consider to be the overtly political nature of the more recent post-exit output.
Notice of Decision
28. The appeal is allowed on asylum grounds.
29. I make an anonymity order (see below).
The above represents a corrected transcript of an ex-tempore decision given at the hearing on 27 February 2015.
Signed Date: 3 March 2015
Deputy Upper Tribunal Judge I A Lewis
Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
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. Failure to comply with this direction could lead to contempt of court proceedings.
Signed Date: 3 March 2015
Deputy Upper Tribunal Judge I A Lewis
TO THE RESPONDENT
FEE AWARD
No fee is paid or payable and therefore there can be no fee award.
Signed Date: 3 March 2015
Deputy Upper Tribunal Judge I A Lewis
APPENDIX
Text of the 'Error of Law' decision made pursuant to the hearing on 12 December 2014
DECISION AND REASONS: ERROR OF LAW
1. This is an appeal against the decision of First-tier Tribunal Judge Petherbridge promulgated on 4 July 2014 allowing the Appellant's appeal against the decision of the Respondent dated 2 May 2014 to remove him from the UK subsequent to a refusal of asylum.
Background
2. The Appellant is a national of Iran born on 24 June 1981. His immigration history is summarised in the cover sheet to the Respondent's bundle before the First-tier Tribunal (extracted from the Respondent's 'reasons for refusal' letter ('RFRL') dated 2 May 2014. It is also summarised at paragraphs 11-14 of the First-tier Tribunal Judge's determination. These are matters of record and known to the parties and accordingly it is unnecessary for me to set them out in any detail here. I refer to aspects of the history as is incidental for the purpose of this document.
3. The Appellant claimed asylum in April 2011. The Respondent refused the application for reasons set out in the RFRL of 2 May 2014, and a decision to remove the Appellant was taken in consequence. The Appellant appealed to the IAC.
4. The First-tier Tribunal Judge dismissed the Appellant's appeal for reasons set out in his determination.
5. The Appellant sought permission to appeal which was initially refused by First-tier Tribunal Judge Fisher on 24 July 2014, but subsequently granted by Upper Tribunal Judge Kebede on 30 October 2014.
6. The Respondent has filed a Rule 24 response dated 24 November 2014 resisting the challenge to the decision of Judge Petherbridge.
Consideration: Error of Law
7. The Appellant essentially raises two bases of challenge against the decision of Judge Petherbridge: the Judge failed to provide sustainable reasons for adverse credibility findings; further or alternatively the Judge erred in failing to take into account the supporting evidence that it was said indicated that songs of the Appellant's with an anti-regime content had been posted on the Internet.
8. In my judgement the first basis of challenge was essentially a disagreement with the findings of the First-tier Tribunal Judge in respect of the events leading to the Appellant's departure from Iran, and the manner of his departure, and did not disclose any error of law on the part of the Judge. In this context I note the following:
(i) The Judge concluded that he did "not accept [the Appellant] as a credible witness in respect of the manner in which he came to leave Iran in April 2011" (paragraph 62). This was because the Judge did "not accept that the Schengen visa issued by the Italian authorities granted on the 23 January 2011 to the 02 May 2011 was not a visa that was not issued to the Appellant in respect of his own passport" (paragraph 63) The Judge explained his reasoning at paragraphs 64-78, concluding also that he rejected that the Appellant's music studio had been raided in April 2011, or that his house was raided and that his brother was subsequently arrested but released.
(ii) The Respondent had raised an issue in respect of the documentation used by the Appellant during his journey to the UK in the RFRL: see paragraphs 40-47. In short, records showed that a Schengen visa had been issued by the Italian Internal Ministry to a person bearing the Appellant's name with identical passport details to those that the Appellant was recorded as using in Brussels on 25 April 2011. It was considered that this undermined the Appellant's claim in respect of the events that led to his departure from Iran and the circumstances of his departure. On appeal the Appellant claimed that the passport with the Schengen visa was not his genuine Iranian passport, and produced a photocopy of what he claimed was his genuine passport now sent to him by his brother from Iran.
(iii) The Judge for cogent and entirely sustainable reasons explained at paragraphs 66-77 why he rejected the Appellant's explanation. It necessarily followed that if the Appellant had applied for a Schengen visa in January 2011 using his own passport, his account of having decided to quit Iran following events in April 2011 was seriously undermined.
(iv) The challenge in this regard came down to a submission that the Judge had been in error in failing to "deal with the absence of any fingerprint evidence linking the Schengen visa to the Appellant" (see grounds at paragraph 5).
(v) I note that it is clear that the Judge was aware that there was no relevant fingerprint evidence because a submission had been made to this effect, and recorded in the determination: see paragraph 60.
(vi) Before me Mr Kirk acknowledged that what the Judge had done was to determine the issue on the available evidence. He also acknowledged that insofar as the judge had determined the matter on the available evidence, there was no deficiency in his reasoning that could constitute an error of law.
(vii) In all the circumstances I do not accept that the Judge made his decision in ignorance of the fact that there was no fingerprint evidence, or - more particularly - that he should have accorded such weight to the absence of fingerprint evidence such that his reasoning in respect of the available evidence was rendered unsafe. There is no merit in this ground of challenge.
9. In the circumstances the Judge was entitled to conclude that at the time of his departure from Iran the Appellant was not a person in respect of whom the authorities had an adverse interest, and indeed that he had not fled for such reasons. Necessarily this meant that the Appellant could only succeed in his appeal on the basis of his claim to be a well-known musician responsible for what he and his representatives have broadly termed 'anti-regime' songs and videos that might reasonably likely attract the adverse attention of the authorities in Iran.
10. During the course of discussion before me, it appeared that this aspect of the claim had been relatively poorly formulated and particularised before the First-tier Tribunal, and moreover, there was little by way of supporting evidence identifying a direct connection between the Appellant and the broadcast / posting of expressly anti-regime lyrics. There was, for example, no supporting evidence that expressly connected the Appellant with Radio Farda; it was accepted that the screenshots of Internet postings of the Appellant songs did not identify them as being political songs; insofar as my attention was directed to actual lyrics for which translations were available, these were not overtly political (albeit that a political message might be contained therein by way of metaphor or allegory). I note that as part of the argument Mr Kirk submitted that there might reasonably likely be an element of risk by reason of the content of music videos posted on YouTube of a romantic nature with depictions of women that would be deemed unsuitable in Iran. It was also suggested - although not seemingly previously clearly formulated in this manner - that the authorities in Iran would be able to connect the Appellant to political songs by reason of his computer having been seized by the Revolutionary Guard. My attention was also directed to various aspects of the background or country information that was before the First-tier Tribunal that suggested a general crackdown on music production and censorship of music.
11. I remind myself that at this stage I am not determining the overall merits of the claim (and indeed necessarily have not embarked on a fact-finding exercise or otherwise reached any conclusions): however, it is relevant to have regard to the substance of the Appellant's case in so far as it may impact upon the materiality of any claimed error on the part of the First-tier Tribunal. Notwithstanding the observations in the preceding paragraph, it does seem to me that there were materials before the First-tier Tribunal arguably capable of establishing a risk on return arising from the Appellants activities as a musician. The issue therefore becomes whether the First-tier Tribunal properly had regard to such matters.
12. I am persuaded that there is substance to the second basis of challenge and have concluded that the Judge did err in his approach.
13. The Judge accepted that the Appellant was a musician who had written songs (paragraph 79), and also accepted that "the objective evidence would suggest that the Iranian authorities are very mindful of any dissent of the regime, whether it comes from inside the country or outside" in the context of evidence relating to the authorities' reaction to six young Iranians involvement in miming to a video of the hit song 'Happy' (paragraph 80). The Judge also seem to accept that Radio Farda was "a radio station that has political undertones and which would be monitored by the authorities in Iran [and] that if his records contain any disparaging remarks of the regime or its ideology would have brought him to the attention of the authorities" (paragraph 83). However, the Judge concluded against the Appellant's claim in this regard on the basis that the Appellant had failed to demonstrate a connection with, or that his songs had been played on, Radio Farda (paragraph 81), and because "there is no evidence that his song written to date has become of any interest to the authorities" (paragraph 83).
14. I accept that the Judge's reasoning in this regard is flawed because of the omission of any reference to the posting of the Appellant's works on YouTube. There is no analysis of the nature of those songs, the contents of the videos, or any finding as to whether the authorities are reasonably likely to monitor such output.
15. In all such circumstances I find that the First-tier Tribunal Judge materially erred, and that the decision of the First-tier Tribunal must be set aside in so far as it relates to the Appellant's activities as a musician in the context of events since his departure from Iran. Those aspects of the decision that relate to the Appellants activities in Iran, and the circumstances leading up to his departure from Iran are not impugnable.
Future Conduct of the Appeal
16. Because the appeal only requires re-making in one limited - albeit potentially determinatively significant aspect - it is not necessary for it to be remitted to the First-tier Tribunal. I consider that the matter may appropriately be dealt with in the Upper Tribunal - subject to some necessary Directions required in order that the basis of the Appellant's case be clarified in respect of the claimed anti-regime nature of his published musical works: see further my observations above at paragraph 10. I gave an indication as to the nature of the required clarification in line with the Directions set out below at the conclusion of the error of law hearing.
Notice of Decision
17. The decision of the First-tier Tribunal Judge contained a material error of law and is set aside.
18. The decision in the appeal is to be remade before the Upper Tribunal, reserved to me, on 27 February 2015. The findings of the First-tier Tribunal in respect of events up to the Appellant's departure from Iran, and his journey to the UK, are to be preserved: evidence and submissions will be entertained in respect of the Appellant's claimed risk by reason of his activities as a musician, and in particular his claimed broadcast/publication/posting of anti-regime, music and videos.
Consequent Directions
(i) The Appellant is to provide all such materials as he seeks to rely upon in a consolidated bundle, and/or in an accessible electronic format as appropriate, to demonstrate that the contents of his music, either lyrically, or stylistically, or in the way presented through videos, is likely to be seen as offensive by the authorities in Iran. Such evidence is to include details of when and where any of his works were broadcast/published/posted, and any relevant background or country information on risk.
(ii) The Appellant is to provide a written argument identifying/clarifying the nature of any 'anti-regime' content in any of his lyrics/videos.
(iii) All such materials and written submissions are to be filed and served at least seven days prior to the resumed hearing.