Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/07569/2014

THE IMMIGRATION ACTS

Heard at North Shields
Determination Promulgated
On 3 September 2015
On 22 September 2015
Prepared on 4 September 2015
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Before

DEPUTY UPPER TRIBUNAL JUDGE JM HOLMES

Between

M. P.
(ANONYMITY DIRECTION)
Appellant
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Selway, Brar & Co Solicitors
For the Respondent: Mr Kingham, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant entered the United Kingdom by air on 11 January 2014 but did not deliver up the passport used to do so. She had travelled in the company of a man, T, and her son, A. She and her son claimed asylum as T's dependents. On 1 February 2014 she withdrew the claims made by herself and her son as T's dependents, and instead claimed asylum in her own right, with her son as her own dependent.
2. That application was refused on 15 September 2014, and in consequence a removal decision was made in relation to her and her son as individuals who had entered the UK illegally.
3. The Appellant appealed to the Tribunal against the removal decision and her appeal was heard on 17 December 2014, and dismissed by decision of Judge Scobbie, promulgated on 30 December 2014. Whilst the Respondent had accepted that the Appellant was an Iranian citizen, he was not satisfied the Appellant had told the truth about how she had left Iran and travelled to the UK, or, what had occurred prior to her departure from Iran, or, that she would come to the adverse attention of the Iranian authorities.
4. The Appellant's application to the First Tier Tribunal for permission to appeal, was refused by Judge Andrew on 29 January 2015 on the basis it was no more than a disagreement with Judge Scobbie's decision, because he had contrary to the complaint raised in the grounds taken full account of the expert report of Ms Kashefi that had been relied upon. Undaunted the application was renewed to the Upper Tribunal, when it was granted by Upper Tribunal Judge Lindlsey on 20 April 2015.
5. The Respondent filed a Rule 24 Notice of 13 May 2015 in which she reminded the Upper Tribunal that the Judge had taken into account the evidence of Ms Kashefi, had rejected the evidence of the Appellant as inconsistent and not credible, and had specifically followed the applicable country guidance decisions.
6. Thus the matter comes before me.

The complaints advanced
7. As drafted (although there are two complaints numbered the same) there are four complaints raised in the grounds. Mr Selway accepted at the outset that there was no merit in the second complaint which had asserted that there was no evidence that Mr I was a "high ranking official", because this had been the Appellant's own evidence about him.
8. In consequence three complaints were advanced on behalf of the Appellant by Mr Selway, although to be fair to him he was not their author;
(i) that although the Judge had made a number of references to the expert report of Ms Kashefi he had failed to give it significant weight and adopt its conclusions
(ii) that although the Judge made reference to the document relied upon by the Appellant as a Court Summons demonstrating she was at risk of losing custody of her son to her husband in Iran, he had not given adequate reasons for his finding that her husband in Iran had no interest in pursuing legal action against her
(iii) that although the Judge made reference to the current country guidance in relation to the risk of harm upon return to Iran faced by those perceived to have left Iran illegally he had not properly considered the argument that the Appellant faced such a risk.

Error of Law?
9. It is not in dispute that the Appellant gave through her different interviews, her witness statement, and her oral evidence, inconsistent accounts of her past actions.
10. The first complaint recognises that the Judge did take the report of Ms Kashefi into account, and that he referred to it in a number of passages in his decision. As Mr Selway accepted there is no proper basis for an argument that it was for the expert to decide whether the Appellant's account of her conduct and her allegation of rape was credible. That was a matter for the Judge after proper consideration of all of the evidence. What the expert was commenting upon was not whether the rape did occur, but what the consequences were for the Appellant if it had. The Judge gave adequate reasons for his decision that the Appellant had presented a fictitious account of her conduct and experiences, and that was plainly a decision he was entitled to reach on the evidence.
11. The second complaint recognises that the Judge did not overlook the document relied upon as a copy Court Summons, said to corroborate the Appellant's claim that her former husband now sought custody of her son. Although the Judge's language is criticised it is plain on a fair reading of the decision as a whole that he rejected this claim, and that he gave adequate reasons for doing so [77-8]. The Judge noted that on the Appellant's own evidence her former husband had consented to their son living with her after the breakdown of their marriage, and that he had displayed no interest in their son since. In those circumstances he was perfectly entitled to reject the claim that the Appellant faced the loss of custody of her son in the event of return to Iran, notwithstanding the existence and content of the document relied upon.
12. As to the third complaint. I note that the Appellant had accepted that she had been issued with a valid Iranian passport, and that she had in the past used this to travel to Malaysia, and Qatar with her husband and son, and then to return to Iran. It is obvious from her own account that her son also had his own passport in order to be able to travel on his own from Qatar to Iran, when he returned to Iran to live with her following the breakdown of her marriage. At her screening interview she said that she and her son had travelled by coach to Turkey when she and Mr T had decided to leave Iran for the UK, although she denied that they had needed to use passports to do so and said that her passport was left with her parents.
13. Despite this unpromising evidential foundation it was argued that whatever other adverse findings were made by the Judge in relation to her account, an Amnesty International report of May 2011 (as quoted in the COI report at #32.25-) showed that an individual would be at real risk of harm if perceived by the Iranian authorities to be a failed asylum seeker. Since this AI report post-dated the country guidance decision of SB (risk on return - illegal exit) Iran CG [2009] UKAIT 53 it was argued that the Judge ought to have concluded that the situation was no longer as it had been found to be in SB, and that he had failed to do so.
14. As Mr Selway accepted this argument was based upon the assumption that the Appellant would be forcibly returned using an emergency travel document issued by the Iranian authorities following a request by the Respondent, rather than on her own passport [Expert report #24-]. There was however no proper evidential basis for that assumption, since the Appellant had on her own account ready access to her own passport. Even if it had by now expired, she could obtain its renewal.
15. The argument also assumed that the Appellant left Iran illegally, which was clearly a matter that was in dispute. The Judge made no finding to that effect in her favour. Indeed it is difficult to see any basis upon which he could sensibly have done so, having rejected as untrue the whole of her account as to why she had chosen to leave Iran. On her own account the Appellant had travelled from Iran to Turkey on a coach, no doubt taking advantage of the bilateral agreement between those countries that does not require Iranian nationals to obtain a visa for entry to Turkey, and I am satisfied that when the decision is read as a whole it is clear that she had failed to persuade the Judge that she left Iran illegally.
16. In those circumstances the third complaint simply falls away. The expert does not suggest that the Iranian authorities have any adverse interest in anyone who is returning to Iran on their own validly issued Iranian passport, even if it has required renewal whilst they were outside Iran - she has focused entirely on the results of the emergency travel documentation process. The AI report relied upon of 6 May 2011 is based upon claims that two individuals forcibly returned to Iran in February 2011 by France and Norway were then detained by the Iranian authorities [COI #32.25-26]. The further AI report of February 2012 is based upon a report of comments made by an unnamed Iranian judge in relation to the detention and questioning of those forcibly returned to Iran [COI #32.27]. Neither of these reports appears to have found any favour with either the Upper Tribunal, or the Court of Appeal, in any decision since their publication.
17. Accordingly as Mr Selway accepted, at its highest the evidence relied upon only suggested a risk of harm existed to those forcibly returned. There was no need for the Appellant to be forcibly returned, or to require an ETD, since she could return voluntarily to Iran using her own passport to do so.

Conclusion
18. I am satisfied that the criticisms that have been advanced of the decision are, at best, no more than a disagreement with the Judge's conclusions. The approach taken by the Judge to the evidence in his decision does not disclose any error of law that requires that decision to be set aside and remade.

DECISION
The Determination of the First Tier Tribunal which was promulgated on 30 December 2014 contains no error of law in the decision to dismiss the Appellant's appeal which requires that decision to be set aside and remade, and it is accordingly confirmed.

Signed

Deputy Upper Tribunal Judge JM Holmes
Dated 4 September 2015

Direction regarding anonymity - Rule 14 Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until the Tribunal directs otherwise the Appellant is granted anonymity throughout these proceedings. No report of these proceedings shall directly or indirectly identify her. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to proceedings being brought for contempt of court.

Signed

Deputy Upper Tribunal Judge JM Holmes
Dated 4 September 2015