Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/08427/2014

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 18th May 2016 & 30th August 2016
On 6th September 2016

Before

UPPER TRIBUNAL JUDGE D E TAYLOR

Between

hQ
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Miss S Khan, Counsel, instructed by Halliday Reeves
For the Respondent: Mr M Diwnycz, Home Office Presenting Officer (18.5.2016)
Mr A McVeety, Home Office Presenting Officer (30.8.2016)

DECISION AND REASONS

1. This is the Appellant's appeal against the decision of Judge Atkinson made following a hearing at Bradford on 21st September 2015.

Background
2. The Appellant says that he is a citizen of Iran, born on 21st November 1996. He arrived in the United Kingdom on 18th February 2013 as an unaccompanied minor but was refused on 3rd October 2014.
3. The Appellant claimed that he would be at risk on return to Iran because of a former relationship with a girl. His claim was disbelieved by the judge and there has been no challenge to his findings of fact.
4. The Appellant also claimed to be at risk on return to Iran as a consequence of his illegal departure and the fact that he was undocumented. A considerable amount of background material was produced to the judge arguing that the country guidance case of SB (Risk on return - illegal exit) Iran CG [2009] UKAIT 00053 should no longer be followed.
5. So far as that submission was concerned the judge wrote as follows:
"It is not necessary for me to make further findings in respect of the Appellant's nationality. As noted above, I accept the evidence of Dr Kakhki so far as it relates to the provisions of the Iranian Code on Citizenship. I note that the return of undocumented minors may be problematic but consider that aspect of the Appellant's circumstances to be beyond the scope of fact finding necessary for me to come to a determination as to whether or not he would face a real risk of serious harm or on return to Iran."
6. The Appellant sought and was granted permission to appeal on the ground that the judge had not adequately engaged with the material before him.
7. At the hearing Mr Diwnycz accepted that the judge had erred in law and was content that the decision be remade when the forthcoming country guidance case on this issue has been promulgated.
8. The Appellant is a member of the Kurdish community in Iran and entitled to Iraqi citizenship. The removal directions are set to Iran and Iraq. It was submitted on the Appellant's behalf that removal to Iraq would give rise to a breach of Article 3 of the ECHR because the Appellant has never lived there and would not be able to call on the support of his family members who are based in the contested area of Kirkuk. The judge did not consider the issue of risk on return to Iraq and again permission was sought and granted on the basis that he had failed to make a clear finding on the issue of nationality and whether the Appellant would be at risk in Iraq.
9. Again there was no resistance from Mr Diwncyz who accepted that the judge had erred in failing to decide one of the issues under appeal as he was required to do.
10. The decision is set aside.

Resumed Hearing
11. At the resumed hearing the appellant produced a supplementary statement and further objective evidence in relation to both the position of Kurds in Iran and the general security situation in Iraq.
12. In his statement the appellant maintained that he has never lived in Iraq and does not know anyone there who would be able to support him. His Iraqi stepbrothers are in the UK. He speaks no Arabic and is uneducated.
13. Mr McVeety accepted that there was nothing controversial in that witness statement and the appellant's Kurdish ethnicity was not doubted. He also accepted that, in accordance with the country guidance case of AA (Article 15(c) - Iraq) CG [2015] UKUT 00544, since the appellant had no sponsors in Iraq and he was unable to be in a position to find work there, he would struggle to argue that the appellant should not be entitled to a grant of humanitarian protection.
14. At paragraph 11 of the head note to AA the Tribunal said:
"Where P's return to Iraq is found by the Tribunal to be feasible, it will generally be necessary to decide whether P has a CSID, or will be able to obtain one, reasonably soon after arrival in Iraq. A CSID is generally required in order for an Iraqi to access financial assistance from the authorities; employment; education; housing; and medical treatment. If P shows there are no family or other members likely to be able to provide means of support, P is in general likely to face a real risk of destitution, amounting to serious harm, if, by the time any funds provided to P by the Secretary of State or her agents to assist P's return have been exhausted, it is reasonably likely that P will still have no CSID."
15. In the light of Mr McVeety's proper concession I find that, if the appellant were to be returned to Iraq, he would be at real risk of harm under Articles 2 or 3 of the ECHR and has characteristics such as to put him at real risk of Article 15(c) harm.
16. Since the first hearing of this case the country guidance case of SSH and HR (illegal exit: failed asylum seeker) CG [2016] UKUT00308 has been promulgated. That case establishes that there is no real risk per se to appellants such as HQ who have left Iran illegally and/or have claimed asylum in the UK.
17. Accordingly it was agreed between the parties that the sole issue in this determination is whether there is a risk of refoulement to the appellant to Iraq upon removal to Iran, it having been accepted by him that there is no real risk to him in Iran and by the respondent that he would be at risk of Article 3 harm in Iraq.
Submissions
18. Ms Khan accepted that the practical obstacles to the appellant's return to Iran or Iraq were not a matter for this Tribunal to consider. They could not, as such, found the basis of a successful claim. She did however submit that the appellant, upon removal to Iran, would be sent to Iraq because of his father's nationality. The appellant has always maintained that his father, who was killed in 2003 when he was 6 or 7, was an Iraqi national.
19. By way of background she relied on the UK Home Office Country Information and Guidance Report on Iran dated July 2016 in relation to Kurds and Kurdish political groups which states that Kurds in Iran will face institutional discrimination affecting their access to basic services such as housing, employment and education, although the level of discrimination does not reach, in general, the threshold of persecution.
20. According to the expert report provided by Dr Kakhki dated 27thMay 2015, the father's citizenship is a decisive factor in the rule of descent by blood. He sets out Article 976 of Iran's Civil Code which states that anyone born to an Iranian father whether the birth was in Iran or abroad, is considered an Iranian citizen. No reference however is made to the mother's citizenship even if she is an Iranian citizen. Whilst persons born in Iran of foreign parents, one of whom was also born in Iran, are considered to be Iranian subjects, this requires both parents to be foreign nationals and therefore not an avenue open to HQ.
21. Iran's Parliament has now passed a law allowing children with an Iranian mother and a foreign father to acquire Iranian nationality after they reach 18.
22. Subsection (5) of Article 976 reads as follows:
"Persons living and born in Iran of a father of foreign nationality who have continued to reside at least one more year in Iran immediately after reaching the full age of 18; in other cases their naturalisation as Iranian citizens will be subject to the stipulations for Iranian naturalisation laid down by the law."
23. Ms Khan cited a report from Payvand News dated 7th May 2012 as follows:
"New legislation passed by the Iranian Parliament grants permanent residency to children to [sic] born to Iranian mothers and foreign fathers. The Khaneh Mellat website reports that the legislation give such children a citizen's right to education, health insurance, social security and government case benefits, but they will not be given automatic Iranian citizenship.
According to previous laws children born to Iranian women and foreign men could apply for Iranian citizenship after they reach the age of 18, but prior to that they were denied residency and all citizen rights. The new legislation was widely expected to also grant citizenship to such children but it does not. Until now children born to Iranian mothers and foreign national fathers had to acquire a visa to travel to Iran and face residency permit problems if they wanted to live there permanently with their mothers. Children born to Iranian fathers and foreign national women do not face such restrictions."
24. Ms Khan submitted that there were clear obstacles to the appellant acquiring Iranian citizenship via this route, particularly since he left Iran at the age of 16.
25. She relied on the COI Report of September 2013 which quoted a USSD Report of 2012 as follows:
"Women cannot transmit citizenship to their children or to a non-citizen spouse. According to media reports there were officially 30,000 citizens married to Afghan men, although the number was likely much higher. As a result there were more than 32,000 children without refugee identification cards, making them effectively stateless and barred from receiving government support, education, healthcare or travel documents.
26. Ms Khan submitted that not only were there obstacles in the appellant's way in seeking Iranian nationality, he was also at risk of refoulement. Dr Kakhki cites a report of an expulsion of a young Christian on 29th May 2011 whose situation was not dissimilar to that of the appellant. He had been born and had lived in the city of Qom from an Iranian mother and exiled father. He was however denied a birth certificate and according to the Farsi Christian News Network had been informed of a decision to deport him to Iraq.
27. On that basis she asked that the appeal be allowed.
28. Mr McVeety submitted that there was no real risk. The expert had identified only one single person who had been deported to Iraq. He pointed out that the source of the information was not verifiable. Furthermore, the expert himself had suggested that there was a possibility that HQ's father might have been able to acquire "Iranian nationality" particularly as he said that "when I was living in Iran no one suggested that I am an Iraqi. I lived in Iran for all of my life."
29. Mr McVeety reminded me that this appellant had been found to be lacking in credibility and accordingly his word, in relation to his or his father's nationality, could not be relied upon.
30. He also observed that the expert himself did not say that the appellant was at risk of refoulement to Iraq. There were many Iranian/Iraqi Kurds and if refoulement was a genuine risk, there would have been reports of deportations.
31. By way of reply Ms Khan said that the reason that there were not more examples was that many people travel without documentation but in any event where nationality was in dispute, few asylum seekers were able to be returned. She said that the Secretary of State herself in the refusal letter stated that it was believed that the appellant was an Iraqi citizen.
Findings and Conclusions
32. First, the appellant came to the UK on a false prospectus. His story, that he was at risk on return because of a sexual relationship with a girl which came to the adverse attention of the authorities, was rejected by the original Immigration Judge and there is no challenge to his conclusions. It is in this context that his claim that his father could not transmit Iranian citizenship to him has to be assessed.
33. Second, although there is no reason at all to disbelieve the appellant's evidence that his father was an Iraqi national by birth - he has Iraqi stepbrothers in the UK - according to the expert it may well be that his father could have acquired Iranian nationality and therefore been in a position to pass it on to his son.
34. Third, it does seem that it is the respondent's view that the appellant is an Iraqi national which may well be correct. It does not mean that he would be at risk of refoulement. There are many people in the same position as HQ. It is most unlikely that if refoulement was a real risk there would not be many more reports of it. The example cited by the expert is of a single occasion in 2011.
35. Finally, whilst there is evidence in the COI Report of discrimination and potential obstacles to the appellant acquiring citizenship that is some way from establishing risk of persecution on return.
36. It is important to bear in mind that the burden of proof in this appeal lies with the appellant. He has to establish a reasonable degree of likelihood of risk of refoulement to a country where he would be at real risk of serious harm. His own expert does not suggest that he is. The evidence presented, effectively that of a deportation in 2011 from an unverifiable source, falls short of establishing a real risk.

Decision
37. The original judge's decision has been set aside. It is re-made as follows. The appellant's appeal is dismissed.

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 their 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 2 September 2016

Upper Tribunal Judge Taylor