Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/06574/2013

THE IMMIGRATION ACTS

Heard at: Manchester
Decision Promulgated
On: 5th October 2016
On 11th November 2016

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

MG
(anonymity direction made)
Appellant
And

The Secretary of State for the Home Department
Respondent

For the Appellant: Mr Greer, Broudie Jackson and Canter Solicitors
For the Respondent: Mr McVeety, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a national of the Islamic Republic of Iran born in 1986.

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"

Case History
3. The Appellant claimed asylum on the 8th June 2013 having entered the United Kingdom illegally. He advanced a claim based on his stated opposition to the Iranian regime. He claimed to have participated in pro-democracy demonstrations, to have come to the adverse attention of the authorities and as a result to have a well-founded fear of persecution for reasons of his political opinion.
4. The Respondent did not accept the account to be true, and in a determination dated 21st August 2013 Judge Malik of the First-tier Tribunal largely concurred with that conclusion. Although she accepted that the Appellant had taken part in a single pro-Mousavi protest Judge Malik found the account of arrest, escape and pursuit thereafter to be implausible and inconsistent and dismissed the appeal.
5. The Appellant sought permission to appeal to the Upper Tribunal, which was granted. The matter came before Designated Judge of the First-tier Tribunal McClure. The matters in issue were whether Judge Malik had erred in her approach to the Appellant's credibility, and whether she had erred in declining to assess whether or not the Appellant would be at risk on return to Iran because he had left the country unlawfully and would be returning without documentation.
6. In respect of the credibility findings Judge McClure upheld the reasoning of Judge Malik, finding it to be cogent and valid. He further agreed with her that the matter of risk for failed asylum seekers had been dealt with by the Country Guidance case of BA (demonstrators in Britain - risk on return) Iran CG [2011] UKUT 36 (IAC) and there was no need to consider the matter any further.
7. The Appellant sought permission to appeal to the Court of Appeal on the 'risk on return' point. It was argued that new evidence showed that there was a risk of ill-treatment in detention, and since detention would inevitably follow from apprehension of illegal exit, a refugee claim would be made out. Permission was granted by Lord Justice Beatson on the 27th March 2015. On the 1st December 2015 the matter was remitted by consent. Lord Justice Laws signed the order in the following terms:
1. The appeal be allowed.
2. The decision of the Upper Tribunal dated 18 December 2013 finding no error of law in the decision of the First-tier Tribunal be set aside and the appeal be remitted to the Upper Tribunal for rehearing.
8. In the hiatus between that decision and the matter coming before me, the Upper Tribunal issued Country Guidance on the issue identified by the Court of Appeal, in 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 onward appeal, that questioning on arrival would necessarily entail detention and ill-treatment.
9. At a mention hearing on the 22nd August 2016 the Appellant indicated that notwithstanding these findings, generally unfavourable to his case, he would be pursuing his appeal.

The Appellant's Case
10. Mr Greer highlighted the following pertinent information about the Appellant:
He is a young man who has been out of Iran for at least three years
He left illegally with no identity documents
He is currently undocumented
In 2009 he took part in at least one pro-Mousavi demonstration
He has claimed asylum in the UK
11. Mr Greer took me to the relevant passages of 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. Of this Mr Greer makes the following submission:
"he is likely [at that point] to be questioned in relation to the details of his asylum case on return to Iran. Such questioning is likely to illicit details of the Appellant's attendance at anti-government demonstrations in 2009"
12. He submitted that if those matters were revealed by the Appellant, there would likely follow ill treatment amounting to persecution. Although the political landscape in Iran is somewhat different from that in 2009, Mr Greer points out that SB (risk on return-illegal exit) Iran CG [2009] UKAIT 00053 and BA (Demonstrators in Britain - risk on return) Iran CG [2011] UKUT 36 (IAC) are still applicable country guidance.

The Respondent's Case
13. Mr McVeety asked me to focus on the fact that the Appellant is entirely unknown to the Iranian state. He has no political profile whatsoever. Whilst he may have posed for a photograph on a demonstration seven years ago there is no evidence to suggest that the authorities are aware of that. There is no reason why he would be asked any questions about it. Those protests were against the election victory of Ahmedinejad who is now out of the picture. Millions of people attended those protests; deplorable as the human rights record in Iran is, it is not the case the millions continue to be arrested. There is no evidence that the Appellant would be asked about his asylum claim. If he is he can tell them the truth - that he made a fraudulent claim which was rejected.

My Findings
14. The Appellant's case turns on two points, very well made by Mr Greer. First, it must be accepted following the findings in both BA and SSH, that he will be subject to questioning upon return to Iran. Second, applying the principles in HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31, he cannot be expected to lie about his claim for asylum, or the fact that he attended a demonstration in support of Mousavi seven years ago. From these propositions Mr Greer deduces that the Appellant faces a real risk of persecution for reasons of his political opinion.
15. I deal first with the nature of 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. Mr Greer emphasises that it is for this reason that this 'pinch point' is so significant. I must therefore assess whether the Appellant is reasonably likely to be asked questions the answers to which might expose him to risk.
16. 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".
17. 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".
18. Mr Greer submits that the key is not then to whether the individual might have made up a story in order to found a false claim, but whether there was any underlying truth in his assertion that he has demonstrated political opposition to the Iranian government. He relies on the clear distinction to that effect found by the panel in SSH:
"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]
19. In the instant case the undisturbed findings of Judge Malik are, on the lower standard of proof, that the Appellant attended a single protest in 2009, wearing a green shirt and holding a picture of Mousavi. Judge Malik makes no explicit findings as to whether or not the Appellant did so out of genuine political conviction, but appears to accept his written evidence that he does not claim to be an activist, just someone with "a view like every man and woman in Iran on political issues". The statement cited by Judge Malik (dated 25th July 2013) states that the Appellant voted for Mousavi and took part in the protest that he did because of anger at the election result and dissatisfaction with the state of the economy. He professes to continue to hold those views. I see no reason to reject that evidence: although the Appellant's credibility has been severely damaged by his fabrication of elements of his claim, I fail to see why he would have attended a protest holding a picture of Mousavi on the streets of Tehran had he not been a genuine supporter. I also note however that the Appellant's convictions were not such that he has been moved to participate in any kind of political activity or expression in the UK.
20. The findings of the Tribunal in SSH are clear: there is a difference between people who were activists or protestors on the one hand and people on the other hand who have no history at all [see for instance at 26]. The Appellant's claim cannot simply be rejected on SSH grounds. He is not simply a failed asylum seeker. He is someone with a history, albeit a very modest one, of protest.
21. What then is the likelihood of the Appellant facing any serious harm upon return to Iran? The demonstrations in 2009 were the largest protests seen on the streets of Iran since the days of the revolution. Many millions took part and the state responded to this challenge to its authority by cracking down with customary brutality. The country guidance most contemporaneous to those events was SB. The pertinent paragraph of the headnote reads:
Events in Iran following the 12 June 2009 presidential elections have led to a government crackdown on persons seen to be opposed to the present government and the Iranian judiciary has become even less independent. Persons who are likely to be perceived by the authorities in Iran as being actively associated with protests against the June 12 election results may face a real risk of persecution or ill treatment, although much will depend on the particular circumstances.
22. SB continues to be operative country guidance. I find on that basis that person who had an active association with protests back in 2009 may face a risk, although much will depend on the circumstances. The circumstances here are that seven years ago the Appellant joined one demonstration in support of the Reformist candidate. He has had no involvement with Iranian politics since then. I can find no evidence to suggest that it would be reasonably likely that the Appellant would be subjected to further questioning, or harm, in these circumstances. Ahmedinejad is no longer in power and so there is no motivation for those who supported him to subdue the opposition. Whilst it is true that personnel in the Iranian security services are generally more hardline than the reformist President that they now serve, I find it difficult to see why there would be any adverse interest in someone with the Appellant's profile today. Applying the guidance in SB I find that he cannot be said to have had an "active association" with the 2009 protests, and that his marginal involvement would not expose him to any risk today.

Decisions
23. The appeal is dismissed on all grounds.
24. There is an order for anonymity.

Upper Tribunal Judge Bruce
3rd November 2016