Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/04469/2014

THE IMMIGRATION ACTS

Heard at: Manchester
Decision and Reasons Promulgated
On: 28th September 2016
and 9th November 2016
On: 11th November 2016

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

HG
(anonymity direction made)
Appellant
and

Secretary of State for the Home Department
Respondent

For the Appellant: Mr Brown, Counsel instructed by Greater Manchester Immigration Aid Unit
For the Respondent: Senior Home Office Presenting Officers Mr Harrison (on 28th September 2016) and Mr Bates (9th November 2016)

DETERMINATION AND REASONS
1. The Appellant is a national of Iran born on the 14th September 1979. He appeals with permission1 the decision of the First-tier Tribunal (Judge Herwald)2 to dismiss his appeal against the Respondent's decision to refuse to grant him leave to enter the United Kingdom3. That decision followed a rejection of the Appellant's claim to international protection4.

Anonymity Order
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 him or any member of his 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"

Background and Error of Law
3. The basis of the Appellant's claim was that he had a well-founded fear of persecution in Iran:
a) Because he has converted from Islam to Christianity;
b) As a failed asylum seeker who had exited Iran illegally.
4. In respect of (a) the First-tier Tribunal rejected the evidence and the grounds contain no challenge to those findings. Judge Herwald accepted that the Appellant may have learned some information about Christianity, but rejected the contention that he was a genuine convert.
5. In respect of (b) the determination notes that Counsel (Mr Schwenk) placed reliance on a skeleton argument and the fact that the Court of Appeal had granted permission in similar cases dealing with the point. The Respondent's own Operational Guidance Note (October 2012) and COIS recognised that the penalty for leaving the country without a valid passport is a sentence of imprisonment of between 1-3 years, and that conditions in Iranian jails are harsh and life threatening. Of these matters the determination concludes "I am not persuaded that there is enough in the skeleton argument produced by Mr Schwenk to cause me to depart from the country guidance decision in SB (risk on return etc) and note that where returnees may be held for a few days, once it is clear that they have not been involved in political activity, it appeared that they are released". It would appear that this conclusion is based on one paragraph in the COIS which is concerned with the treatment of those who have claimed asylum abroad. It was that finding that was the subject of the challenge mounted in this appeal.
6. In a decision dated 26th December 2015 I found the decision to contain an error of law limited to the refusal to depart from SB. The error was found in line with the terms of grants of permission in a number of cases before the Court of Appeal. The grounds make extensive reference to the skeleton argument and evidence that was placed before the First-tier Tribunal. The Appellant submitted that the risk of serious harm to those who had exited Iran illegally had considerably heightened since the decision in SB (risk on return - illegal exit) Iran CG [2009] UKAIT 53. Although the various sources cited (US State Department, Amnesty International etc) do make reference to an apparent crackdown on perceived dissent, the central focus of the material was the worsening in prison conditions. The error of law was the failure to consider all of this material evidence and do so with anxious scrutiny. Having made reference to it, the Tribunal does not then address it.

The Re-Making
7. There followed a long delay whilst the parties and the Tribunal waited for a panel of the Upper Tribunal to resolve the central matter in issue: what happens to failed asylum seekers upon return to Iran and in what circumstances will there be a reasonable likelihood of harm? That resolution came in June of this year with the publication of SSH and HR (illegal exit: failed asylum seeker) [2016] UKUT 308 (IAC). The findings are summarised in the headnote as follows:
"(a) An Iranian male whom it is sought to return to Iran, who does not possess a passport, will be returnable on a laissez passer, which he can obtain from the Iranian Embassy on proof of identity and nationality.
(b) 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."
The Tribunal thereby rejected the proposition in the Appellant's case: that questioning on arrival for either illegal exit or having claimed asylum, would necessarily entail detention and ill-treatment.
8. That, one would think, would be that, given the narrow parameters of the terms of the onward appeal. Not so, submitted Mr Brown. He pointed to the clear distinction drawn in SSH between failed asylum seekers simpliciter and those who might have other risk factors. In the hiatus between Judge Herwald's determination and the appeal being relisted for remaking, the Appellant had created a profile for himself which would place him at risk. He had continued to attend church, had been officially baptised, and importantly, had placed references to him being a Christian on his Facebook page, which was open to the world to see. Appellant 'google' search of the Appellant's name threw up a hit of him 'liking' the webpage of a church. Mr Brown submitted that these factors placed him at enhanced risk of detention and ill-treatment.
9. For the Respondent Mr Bates pointed to the clear and uncontested findings that this claimed conversion was wholly cynical. If asked about the basis of his asylum claim the Appellant could not, in accordance with the principles in HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31, be expected to lie. He would simply tell the Iranian border guard that he had made a false claim for asylum based on a fabricated claim to have converted to Christianity. If they asked about his Facebook page, or whether he had been baptised, he could explain them away by telling the truth - these matters are all part and parcel of the falsehood.

My Findings
10. I begin with the relevant findings in SSH and HR. That decision indicates that in order to affect the Appellant's return to Iran the Secretary of State will have to obtain on his behalf a laissez-passer style document from the Iranian embassy in London. The Tribunal held that arrival with such a document may indicate to the authorities that the holder left Iran illegally and a fine would result. He would likely be subject to some questioning. It has long been accepted that returnees to Iran - at least those without regular documentation - face interview by officials on arrival. That is unsurprising. No doubt a British national returning to Heathrow without a passport would also have to answer some questions. The difference is that the 'wrong' answer, in the Iranian context, could lead to persecution.
11. In SSH the Tribunal heard evidence that the questioning could take anything from 10 minutes [at 21], to 2-3 hours [13], to 3-5 hours [14] to several days [22]. It was prepared to accept Dr Kakhki's evidence that there is a special court near the airport which deals with penalties for illegal exit and other immigration offences. The Tribunal was not at all satisfied that there was, in general, a real risk of persecution at this stage. The panel endorsed Dr Kakhki's evidence that a returnee simpliciter would not face a real risk of harm:
"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".
12. It is implicit in this that the questioning would cover whether or not the individual and claimed asylum. This was indeed the evidence of Dr Kakhki, recorded at paragraph 35 of Appendix 1. The Tribunal specifically considered, and rejected, the proposition that the act of claiming asylum would in itself expose the individual to prosecution - with the attendant risk of harm - for propaganda against the state. At 30:
"We can understand the sensitivity that the Iranian authorities may have towards perceived slights against their own state in the form of untruthful allegations about the conduct of the state, but equally one can expect a degree of reality on their part in relation to people who in the interests of advancing their economic circumstances would make up a story in order to secure economic betterment in a wealthier country".
13. Mr Bates emphasised these findings in his submissions. The Iranian authorities are no doubt aware that their citizens use the asylum system in Europe for the purpose of economic migration and generally speaking they are not going to pursue questioning of an individual for that reason alone.
14. For his part Mr Brown accepted that this was so for the failed asylum seeker with no other issues, but asked me to consider, applying the lower standard of proof, whether actual baptism, and open declaration of that fact, would increase the likelihood of problems at that 'pinch point'. He pointed out that the panel in SSH are careful to separate out those cases where there might be an additional risk factor:
"31. Elsewhere in Dr Kakhki's report there are a number of examples given of people who were prosecuted for other offences and also for illegal departure. It seems to us that these cases establish no more than that people may be prosecuted and indeed imprisoned, as some of these cases show, for the separate offence of illegal exit, but they are clearly to be distinguished from cases where there is no history and where the person is no more than a failed asylum seeker who exited Iran illegally. Cases such as Mr Jazari who was a corrupt businessman, Ms Bayazidi who was convicted of an offence of disinformation and other examples of people who were clearly political dissidents or at least perceived as being political dissidents, are different again. We do not consider it to have been shown that somebody who has made a failed asylum claim would simply as a consequence of that be regarded as a political dissident. These cases where people were imprisoned show much more by way of specific activity than a simple imputation. The description of the case of Mr Hadi Keikhosravi, referred to at page 13 of the report, which refers to a conviction of six months' imprisonment for illegal departure, says nothing about the surrounding circumstances and as such cannot be an example of any materiality. The examples given show that people found guilty of another offence may in addition receive a prison sentence for illegal exit, but they do not show that people are sentenced to imprisonment for illegal exit per se. Indeed, the evidence suggests that there is no appetite to prosecute for illegal exit alone, but if there is another offence, illegal exit will be added on".
[emphasis added]
15. Mr Brown further took me to the findings of the Upper Tribunal in AB and Others (internet activity - state of evidence) Iran [2015] UKUT 0257 (IAC):
457. We accept the evidence that some people who have expected no trouble have found trouble and that does concern us. We also accept the evidence that very few people seem to be returned unwillingly and this makes it very difficult to predict with any degree of confidence what fate, if any, awaits them. There is clear evidence that some people are asked about their internet activity and particularly for their Facebook password. We can think of no reason whatsoever to doubt this evidence. It is absolutely clear that blogging and activities on Facebook are very common amongst Iranian citizens and it is very clear that the Iranian authorities are exceedingly twitchy about them. We cannot see why a person who would attract the authorities sufficiently to be interrogated and asked to give account of his conduct outside of Iran would not be asked what he had done on the internet. Such a person could not be expected to lie, partly because that is how the law is developed and partly because, as is illustrated in one of the examples given above, it is often quite easy to check up and expose such a person. We find that the act of returning someone creates a "pinch point" so that returnees are brought into direct contact with the authorities in Iran who have both the time and inclination to interrogate them. We think it likely that they will be asked about their internet activity and likely if they have any internet activity for that to be exposed and if it is less than flattering of the government to lead to a real risk of persecution.
16. Given these findings it must be accepted that the Appellant's online presence will necessarily come to attention of the interviewing officers. The Appellant produces before me, along with his baptism certificate, screenshots of his Facebook profile. The latter included a photograph of him in Church, and links to various individuals identifying as Christians. He has also 'liked' various Christian related posts and websites. He has shared posts from other people's pages which are openly critical of Islam, for instance one in which various dictators are pictured with Qur'an in hand, and these images are juxtaposed with others depicting their human rights abuses. Another page shared by the Appellant explains why all Muslims are actually Christians.
17. Conversion from Islam is a crime in Iran, and indeed in classical Islamic law. It is also a matter likely to inspire revulsion in the average observant Muslim. It seems to me that in those circumstances there must be a more than a fanciful chance that the interviewing officer will not overlook this online material on the basis that was part of a fraudulent claim. Although these are not the political matters discussed in SSH, they are certainly matters that would engage the Refugee Convention as well as the adverse interest of the Iranian state. I find it to be reasonably likely that such a 'frontline' officer would consider that that this was a matter requiring further investigation and that transfer to detention would follow. I find it to be reasonably likely that the Appellant would be subjected to ill-treatment in those circumstances.
18. Mr Bates was quite correct to rely on Judge Herwald's findings of cynicism. Whether the intervening two years have resulted in a more genuine conversion, or simply an amplification of the Appellant's false claim, is not however for me to decide. There is evidence both ways. The Appellant has continued to attend Church, but on the other hand openly admitted to having deliberately turned his privacy settings off on his profile page. My decision is based simply on the view that would be likely be taken by the authorities upon the Appellant's arrival.

Decisions
19. There is an order for anonymity.
20. The decision of the First-tier Tribunal contained an error of law and is set aside to the limited extent identified above.
21. The decision in the appeal is remade as follows:
"The appeal is allowed on asylum grounds.
The Appellant is not entitled to humanitarian protection because he is a refugee.
The appeal is allowed on human rights grounds".

Upper Tribunal Judge Bruce
10th November 2016