Tribunal decisions

The decision

Upper Tribunal
Appeal Number: AA/05898/2015
(Immigration and Asylum Chamber)

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 14 September 2016
On 5th December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

Between

KARWAN [J]
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr A. Chohan, counsel instructed by Duncan Lewis & Co solicitors
For the Respondent: Mr S. Kotas, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a national of Iran, of Kurdish ethnicity, born on 6 August 1997. He arrived in the United Kingdom aged 16 on 18 December 2013 and claimed asylum, on the basis that he and his father had been supporting the PJAK peshmerga by providing them with food, as a result of which the Appellant's father was arrested and his mother then arranged for the Appellant to leave Iran for fear that he too would be arrested. His asylum application was refused on 19 March 2015 and his appeal against this decision was dismissed by FtTJ Ferguson in a decision promulgated on 3 September 2015. Permission to appeal to the Upper Tribunal was granted on 3 December 2015 and, in a decision dated 26 February 2016, following a hearing on 16 February 2016, DUTJ Hall found a material error of law and adjourned the appeal for a hearing de novo with two findings preserved viz (i) the finding on the Appellant's Iranian nationality and (ii) the extent of his co-operation with the authorities regarding tracing his family does not weigh heavily in his favour [28]. At [18] DUTJ Hall held: "findings need to be made regarding the involvement of the Appellant and his father with PJAK and submissions need to be made by both parties in relation to that involvement and in relation to risk on return, taking into account any background evidence to be relied upon."

2. The resumed appeal came before me for hearing on 25 April 2016 when it was adjourned to 14 September 2016, in order for the Appellant to find new representatives, owing to a dispute about the differing signatures on the Appellant's witness statements of 1 April 2014 and 29 June 2015 prepared by his previous solicitors, which raised a potential conflict of interest.

Hearing

3. The Appellant was called to give evidence and he confirmed that the contents of his witness statement of 8 September 2016 were true and accurate. He stated that there was no-one from Social Services with him on 1 April 2014 but there was a duty social worker with him on 29 June 2015. He denied that the signature upon the statement of 1 April 2014 was his, whereas the signature on the statement of 29 June 2015 was his signature. He stated that he had only realized that the signature on 1 April 2014 was not his at the last hearing (25 April 2016) when it had been shown to him.

4. The Appellant was asked about family tracing and said that he had provided all the information he knew about his parents and the distance of his village from town. He said that he had last spoken to his mother with the help of the agent when he was in Turkey; that he did not have her telephone number but the agent had it and he has had no contact with her since. He left the agent in Turkey.

5. The Appellant stated that he did not attend school in Iran and that he could only read and write in English, having learned English at college in the United Kingdom. He said he was unable to read and write in Farsi although he spoke it a little and his mother tongue was Kurdish Sorani, which he spoke with his parents but he could not read or write in that language. He confirmed that he had an identity document in Iran, which contained his name and his age but the agent had taken it and destroyed it in Turkey. When asked about his father, the Appellant stated that he had been arrested and that his mother told him this when he was in Turkey. She did not say why he had been arrested but the Appellant knew that he was helping PJAK by taking food to them.

6. In cross-examination by Mr Kotas, the Appellant was again asked about the signatures on his witness statements when he confirmed his previous evidence in examination-in-chief. Discrepancies between the statements were put to him viz in his statement of 29.6.15 at [10] he said he only found out that his father had been arrested when he was in Turkey whereas in the 1.4.14 statement at [13] he said when he got home his mother told him his father had been arrested. The Appellant stated that when he went back his mother told him security forces were looking for his father. Questions 107-111 of the interview record were put to him:
"Q107 do you remember when your father was arrested?
A. About 1 month before I left
Q.108 - where were you?
A. At my workplace
Q 109- in the mountains?
Yes
Q 110 - where was your father?
A. At home
Q111 - what time of day?
A. I don't know - one day I returned home it was 5 o'clock and my mother explained what had happened"

7. Mr Kotas put to the Appellant that it was very clear from this that his mother explained that his father had been arrested, to which the Appellant responded that he did not know he was arrested when he was in Iran and that he only knew they were looking for him. He only found that out in Turkey. Mr Kotas then stated that his understanding all along is that the Appellant had resiled from his 2015 statement not his 2014 statement but today this seemed to be the other way around. He sought to rely on the Home Office Presenting Officer's notes of the First tier Tribunal hearing where only the 2014 statement was relied upon. A fax from Duncan Lewis with attendance notes from Sultan Lloyd dated 1.4.14 and 29.6.15 was also adduced in evidence. The Appellant confirmed that his mother told him that his father was arrested when he was in Turkey. The following extract from page 6 of the attendance note in relation to 1 April 2014 was read to the Appellant:

"when did you find out he had been arrested?
When I came home that day my mum told me I told you not to see these people and not to do that job. Your dad arrested today. Two big problems one is smuggling and one is seeing PJAK. My mother told me like that."

The Appellant, when asked to comment, stated that his mother was not sure his father had been arrested but thought he would be for the reasons she gave. He found out exactly when he was in Turkey.

8. The Appellant confirmed that he had told the interviewing officer that he was a shepherd and at Question 38 of the AIR he said he did this from the age of 7 or 8 until leaving Iran. Mr Kotas put to the Appellant that he was unable in interview to say how long a sheep is pregnant for before giving birth, to which he responded that this was his mother's job not his and he just looked after the sheep: "We would take them home to the garden when they were pregnant." He stated that he did not know what breed of sheep they had: "there are no breeds of sheep - a sheep is a sheep." He stated that he did not know what type of vaccinations they had. When Mr Kotas put it to the Appellant that he was never a sheep farmer he insisted that what he said was true.

9. Mr Kotas asked the Appellant whether there was an arrest warrant out for his arrest in Iran [D34 of Respondent's bundle at question 154] which he confirmed, stating that his mother told him whilst he was in Turkey. He said that they sent that arrest warrant for his father and when asked if his mother told him that there was an arrest warrant for him he stated that he was very young and did not remember. He said that he did not have a copy of the arrest warrant.

10. The Appellant confirmed that he had not spoken to his mother for about three years and that, whilst there was a landline in the family house in Iran, he did not take the landline number when he fled because he was so worried about his life at that time he did not think of anything. He confirmed that the agent he left Iran with was the same agent he had in Turkey and that he had telephoned his mother when he was in Turkey, with the help of the agent; that his mother had given her number to the agent, not him and he did not think to ask the agent for the number. He said he did not expect to come over here and never see her again or call her again.

11. The Appellant confirmed that alcohol is illegal in Iran and that his father smuggled alcohol despite severe penalties for so doing, in order to give the family an income. He did not know how often or how his father crossed into Iraq. The Appellant stated that the authorities did look for him when they arrested his father and that he did not know why the authorities did not go to the mountain to look for him; they knew he was helping as well but that time they came to arrest his father. [15] of the Appellant's statement of 1.4.14 was put to him "when I was hiding at this house my mother told me the authorities were looking for me" and he was asked whether his mother came to that house to tell him and why had his mother hidden him in the house to which he replied that she expected the authorities to arrest him as well, because she knew he was the son of his father who had been was arrested and this is why she wanted to send him out to safety, because she was afraid for his life.

12. There was no re-examination.

13. In his submissions, Mr Kotas adopted the contents of the refusal letter of 23 March 2015. He submitted that the Appellant is not a credible witness and that, even giving credit to his age, immaturity and lack of education, he claims to be a rural person and shepherd but knows nothing about sheep; it was put to him in interview and he was unable to answer. He sought to rely on discrepancies between the 2014 and 2015 statements and submitted that the Appellant has, in effect, changed his evidence depending on who he last spoke to. He sought to rely on the note of Sally Coles (the Presenting Officer at the FtT hearing) where the focus was only on the asylum interview record and the 2014 statement. At the current hearing the Appellant has sought to resile from his 2014 statement and rely on the 2015 statement. The
attendance note from his previous solicitors directs contradicts when he found out his father had been arrested and goes to very heart of his claim. The 2014 statement and Asylum Interview Record do accord and what simply happened is that he changed his instructions and his evidence. In terms of the arrest warrant there is no evidence of this. The Appellant failed to co-operate with tracing. He would lead the Upper Tribunal to believe that the agent was given his mother's number but did not think to take her number when he came to the UK, despite spending $15,000 getting to the UK. Mr Kotas submitted that the Appellant is an economic migrant seeking to do better in the UK. Even if his account is true, which he did not accept, the Appellant provided very low level support for the peshmergas and would not be at risk as a failed asylum seeker cf. SSH & HR (illegal exit failed asylum seeker) 2016 UKUT 308 (IAC).

14. In his submissions, Mr Chohan reminded me that the finding by the FtTJ that the Appellant is Iranian had been preserved. He submitted that the Appellant is somebody who would be drawn to the attention of the authorities in Iran because of his own involvement or his father's activities assisting the Peshmerga. His account is overall consistent with his instructions to his solicitors and his Screening Interview. Even with the confusion over the statements it is the case that he did not attend his solicitors on 1.4.14 and Social Services have confirmed that they did not go with him, as is confirmed in the attendance note from his former solicitors. Mr Chohan submitted that this was not a huge discrepancy and the core of the claim is the same. He submitted that the law does not operate exactly like the UK and the Iranian authorities can bundle him off on suspicion because alcohol smuggling is in itself is a criminal offence. His association with the Peshmerga, who are Kurds acting in defiance of the authorities, are always looking for new sources of support for their guerilla army and who better to support them but local people. The supply chain is not traceable. His mother confirmed that his father had been arrested when he spoke to her in Turkey.
In terms of co-operating with tracing, the Appellant has given an address, nearby city and his mother's name and age and has given all the essential information. It is not clear whether the Red Cross or IOM have a presence in that part of Iran. He submitted that there is a reasonable likelihood of persecution on account of the Appellant's association with the peshmerga because his family's involvement is known to the authorities and the fact he is Kurdish and speaks Sorani would put him at risk. Authorities would make enquiries because they would want to know how he exited Iran without a passport. He submitted that the appeal should be allowed on the basis of danger to the Appellant's life and risk on return.

The Law

15. In order to qualify for protection as a refugee, the Appellant is required to meet the provisions of the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 and the provisions set out in the Immigration Rules, both of which implement Council Directive 2004/38/EC. Paragraph 339L of the Rules provides:

"339L. It is the duty of the person to substantiate the asylum claim or establish that they are a person eligible for humanitarian protection or substantiate their human rights claim. Where aspects of the person's statements are not supported by documentary or other evidence, those aspects will not need confirmation when all of the following conditions are met:
(i) the person has made a genuine effort to substantiate their asylum claim or establish that they are a person eligible for humanitarian protection or substantiate their human rights claim;
(ii) all material factors at the person's disposal have been submitted, and a satisfactory explanation regarding any lack of other relevant material has been given;
(iii) the person's statements are found to be coherent and plausible and do not run counter to available specific and general information relevant to the person's case;
(iv) the person has made an asylum claim or sought to establish that they are a person eligible for humanitarian protection or made a human rights claim at the earliest possible time, unless the person can demonstrate good reason for not having done so; and
(v) the general credibility of the person has been established."

16. The appropriate standard of proof is that of a "real risk" or "serious possibility" or "a reasonable degree of likelihood", which is a lower standard than the balance of probabilities cf. Karanakaran [2000} EWCA Civ 11.

17. In order to show that he would be at risk of torture, inhuman or degrading treatment or punishment contrary to Article 3 of the ECHR, the Appellant must establish to the same low standard that there is a real risk of this occurring upon return to Iran.

18. Due to the Appellant's age at the time of events, there should be a liberal application of the benefit of the doubt. Paragraph 351 of the Rules provides:

"351. A person of any age may qualify for refugee status under the Convention and the criteria in paragraph 334 apply to all cases. However, account should be taken of the applicant's maturity and in assessing the claim of a child more weight should be given to objective indications of risk than to the child's state of mind and understanding of their situation. An asylum application made on behalf of a child should not be refused solely because the child is too young to understand their situation or to have formed a well founded fear of persecution. Close attention should be given to the welfare of the child at all times."

In KS (benefit of the doubt) [2014] UKUT 00552 (IAC) at [99] and [100] the Upper Tribunal held: "we would concur at least that a child-sensitive application of the lower standard of proof may still need to be given to persons if they are recounting relevant events that took place at a time when they were minors or were even younger minors."

100. It is also necessary to keep in mind that there is not necessarily a "bright-line" for assessment of evidence in the context of asylum between the stage at which a person is a minor and the stage at which he is an adult: see e.g. KA (Afghanistan) and others v Secretary of State for the Home Department [2012] EWCA Civ 1014 at [18]".

Decision

19. The scope of the appeal was narrowed by virtue of [18] of the error of law decision by DUTJ Hall to focus upon the involvement of the Appellant and his father with PJAK and risk on return, taking into account any background evidence to be relied upon. The Appellant has been found to be an Iranian national, of Kurdish ethnicity. Whilst it was accepted at [28] of the decision of the FtTJ that he has co-operated with the authorities regarding tracing his family it was found that this does not weigh heavily in his favour.

20. Whilst Mr Kotas challenged the credibility of the Appellant's account, his focus was on the underlying basis of claim ie that he worked as a shepherd. Mr Kotas also identified discrepancies between the accounts the Appellant has given at different times ie his asylum interview and his statements of 1 April 2014 and 29 June 2015. One of these discrepancies in particular is potentially material and that is when the Appellant was informed by his mother that his father had been arrested. In his statement of 1 April 2014 the Appellant stated: "[13] Around one month before I left Iran I returned from the mountains like normal, at around 5pm, and my mother told me my father had been arrested. She said that the authorities had come to the house and taken him away. She said he was in big trouble because of seeing the PJAK peshmergas and because of his smuggling." This is consistent with the Appellant's account in his asylum interview at Q & A 107-117. However, in his statement of 29 June 2015 the Appellant stated: "[9] I confirm that my mother was very worried as my father did not return home my mother had a bad feeling that something bad was going to happen. The following day the Iranian authorities come to the house and searched from my father. After this my mother put me in a house and then arranged to send me out of the country. 10. I only found out that my father had actually been arrested when I was in Turkey. 11. I did not know what had happened to my father and just knew that he was missing until my mother told me after I arrived in Turkey that he had actually been arrested." In his most recent statement to his current solicitors dated 8 September 2016, the Appellant stated: "[15] Around one month before I left Iran I had returned home fro work as normal. On this occasions, my mother told me that the authorities had come to the house and had been looking for my father. I knew that my father had been helping the PJAK and that he had also been bringing alcohol from Iraq into Iran so I knew that this would be dangerous for him. My mother said that someone must have involved the authorities about what my father has involvement with these things. For that reason the government is looking for my father." In his evidence before me, the Appellant stated that his mother was not sure his father had been arrested but thought he would be for the reasons she gave. He found out exactly when he was in Turkey. He also denied signing the statement of 1 April 2014.

21. So there are two slightly varying accounts given at six different times: 1 April 2014 (SEF statement) and 7 April 2014 (AIR) and 17 July 2015 (hearing before the FtT at [7](version 1) and 29 June 2015 (statement) and 9 September 2016 (statement) and 14 September 2016 (hearing before the Upper Tribunal)(version 2). The discrepancy between the two versions was not identified at the hearing before the FtT or by the Appellant's former solicitors. A copy of the attendance note taken by the Appellant's former solicitors on 1 April 2014 has been served. Whilst no social worker was present, it appears from the interpreter's invoice that the attendance note was prepared at a home visit with the Appellant and, from the attendance note, that the statement was prepared at the same time: "statement was completed and read back to client. Client happy with statement and signed the same." There is also an attendance note that 29 June 2015 which states that a rebuttal statement was done with the client and read through and signed by him. The signature that appears on the statement of 1.4.14 [at C5 of the Respondent's bundle] is not identical to either the signature that appears on the Appellant's subsequent statement of 29 June 2015 nor his statement of 9 September 2016, taken by his current solicitors shortly before the hearing. However, given the Appellant's young age and the fact that he was illiterate prior to arriving in the UK, I do not place a great deal of weight on the differing signatures, given that signatures by young people can evolve over time. I find that, despite his disavowal of the signature on the statement of 1.4.14 that the Appellant is the signatory of all three statements. What the discrepancy comes down to, in essence, is whether one month before he left Iran his mother told the Appellant that the authorities had been to the family home and his father had been arrested or whether she told him that the authorities had been to look for his father and she feared he would be arrested, because of alcohol smuggling and suspected support for PJAK. When he reached Turkey and was able to contact his mother she confirmed that his father had been arrested.

22. I have concluded that the discrepancy between the two accounts is not so material as to fundamentally undermine the Appellant's asylum claim, bearing in mind the Appellant's age at the time of events and the requirement to apply a child sensitive application of the lower standard of proof and the fact that he was a minor at the time he applied for asylum, provided his first statement and was interviewed by the Home Office; provided his second statement and gave evidence before the FtT. I also bear in mind that, prior to his arrival in the UK he had received no education and at all material times the Appellant was providing his account through a Kurdish Sorani interpreter and there is a serious possibility that there was misinterpretation and/or a misunderstanding as to the chronology of events.

23. Mr Kotas also sought to rely on the fact that the Appellant did not take or obtain his mother's telephone number from the agent. Whilst I have some difficulties accepting that the Appellant's mother would give her telephone number to the agent but not to the Appellant himself, I do not consider that this fundamentally undermines the credibility of the Appellant' asylum claim as there may be good reasons as to why she acted in such a manner eg to protect herself and/or her son if he were to be detained by the Iranian authorities. I also place little weight on the fact that the Appellant was unable to state the breed of sheep the family owned or answer questions as to the gestation of sheep. This is because I very much doubt that there is much variety in sheep breeds in the mountains of north west Iran and because, as a child, the Appellant was assisting his parents in caring for the sheep and it was his evidence, which I accept, that when the sheep were pregnant they were brought to the family's garden for his mother to care for.

24. In light of the fact that the Appellant was a minor at all material times and bearing in mind that he has never attended school or received an education prior to arriving in the United Kingdom, I apply the lower standard of proof and accept the basis of his claim ie that his father was involved in smuggling alcohol from Iraq to Iran and was a support of PJAK, including proving PJAK peshmerga with food, a task that the Appellant also carried out. In so finding, I bear in mind that the Danish Immigration Service/Danish Refugee Council with regard to Iranian Kurds dated 30.9.13 report provides inter alia at 209 of the Appellant's bundle: "Regarding illegal transport of goods and people across the border between Iran and KRI, Yadgar A. Faraj, Erbil Residence Director, KRG confirmed that the volume of illegal traffic of goods and people is high and a large number of Iranian Kurds, including Iranian Kurdish political party activists, are using the illegal paths to come to KRI or go back to Iran." I further find that, in light of the background evidence, there is a serious possibility that, if the Iranian authorities became aware of his father's activities - both smuggling and assisting PJAK peshmerga - he would be at risk of arrest. Therefore, I find that the Appellant's father was arrested as claimed by the Iranian authorities.

25. The question is whether the Appellant would now be at risk on return to Iran, after an absence of 3 years, on account of either his own and/or his father's activities. The Appellant is from the village of Marughan or Marzan, in Sardasht, Iran. The background evidence indicates that this is in the West Azerbaijan area of Iran close to the border with Iraq and is also in the general area of the Qandil mountains, which is where the headquarters of PJAK is based. The report from the Austrian Federal Ministry of the Interior concerning the Kurds, dated 17.11.15 provides at 83-84 of the Appellant's bundle: "The party itself claims it operates only in the Kurdish region of Iran ? according to estimations PJAK has about 3000 fighters ? The PJAK can today be seen as the most active political party inside Iran, although it is considered a terrorist organisation by the Iranian government and therefore banned." The Joint report from the Danish Immigration Service, Norwegian Landinfo and Danish Refugee Council of 26.2.13 provides at 130 of the Appellant's bundle: "one hears more and more of ordinary persons being pursued by the authorities because of family members being members of PJAK, Komala or KDPI." And at 131: "It was considered by the sources that PJAK is the most active organisation. PJAK has entered into a ceasefire agreement with the Iranian government and there had been no clear armed clashes recently. However, many cases have been reported regarding imprisonment, torture, terrible prison conditions and executions in Iran or PJAK members and supporters. It was further added that an individual does not need to be a member of PJAK in order to be pursued and that others somehow affiliated could face risks. Families of PJAK members can also be at risk and face arrest and interrogations by the authorities."

26. The Appellant's evidence is that he has been told that an arrest warrant has been issued for him although there is no evidence in support of this contention, which I do not find to be proved. In SSH & HR (illegal exit: failed asylum seeker) Iran CG [2016] UKUT 308 (IAC) the Upper Tribunal considered the issue of risk on return to two Iranian Kurds on account of illegal exit, being a failed asylum seeker and being undocumented. Whilst the two appeals were dismissed, it is clear that this was on the basis that they were not of adverse interest to the Iranian authorities. The Upper Tribunal found at [34] that "being Kurdish was relevant to how a returnee would be treated by the authorities" and "might be an exacerbating factor for a returnee otherwise of interest." This Appellant is undocumented and would have to apply to the Iranian Consulate for a "barge obour"- a form of laissez passer in order to be re-admitted to Iran. The Upper Tribunal accepted that a person returned on such a document would be questioned [9] and that "if there are any particular concerns arising from their previous activities either in Iran or in the United Kingdom ? then there would be a risk of further questioning, detention and potential ill-treatment." [23]. Applying the lower standard of proof, I find that there is a real risk that the Appellant would be questioned on his return to Iran, identified as a Kurd by virtue of his language and place of birth and former residence and that he would then be identified as the son of a man arrested for illegal smuggling and perceived support for PJAK. Whether or not the Appellant admits to his own role in providing food for the PJAK peshmergas, I find in light of the background evidence there is a real risk that the Appellant would be subjected to ill-treatment which would amount to persecution on the basis of perceived political opinion/membership of a family perceived as supporting PJAK and/or treatment in breach of Article 3 of ECHR.

27. The appeal is allowed on the basis that removal of the Appellant to Iran would be contrary to the United Kingdom's obligations under the Refugee Convention and Article 3 of the ECHR.

Deputy Upper Tribunal Judge Chapman 5 December 2016