Tribunal decisions

The decision

IAC-FH-LW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/08610/2015

THE IMMIGRATION ACTS

Heard at Birmingham Employment Tribunal
Decision & Reasons Promulgated
On 21 February 2017
On 22 March 2017

Before

DR H H STOREY
JUDGE OF THE UPPER TRIBUNAL

Between

g s
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Khan of Morden Solicitors LLP (Birmingham)
For the Respondent: Mr Diwnycz, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a national of Iran. In a decision sent on 14 July 2016 First-tier Tribunal (FtT) Judge Hawden-Beal dismissed his appeal against a decision made by the respondent on 26 May 2015 refusing to grant asylum and to remove him as an illegal entrant. A previous decision by FtT Judge Burns dated 19 October 2015 had been set aside by Deputy Upper Tribunal Judge Renton. There had been an earlier decision by Senior Immigration Judge (SIJ) Batiste in 2010 concluding that the appellant had a conviction for alcohol smuggling but that this would not place him at risk on return.
2. The first ground has two limbs. In its first limb the appellant challenges FtT Judge Burns’ treatment of the expert evidence. It is argued that the judge did not consider the expert evidence and that, further, the judge erroneously relies on the 2010 findings made by SIJ Batiste without regard to the current background evidence and country guidance.
3. I do not consider the first ground is made out. The grounds identify the expert report the judge is said to have overlooked as that prepared by Dr Khaki in November 2008. That report was addressed in very great detail by SIJ Batiste in 2010 and was fully taken into account in his eventual assessment of risk on return. FtT Judge Burns noted at paragraphs 23 and 30 that SIJ Batiste had accepted that the appellant had been convicted of alcohol smuggling but had not accepted that this would place him at risk. FtT Judge Burns also noted that he treated SIJ Batiste’s findings on this issue as a “starting point” as per Devaseelan. That was entirely the correct approach for the judge to have taken. Given that the expert report was dated 2008 and had been fully considered by SIJ Batiste, FtT Judge Burns was not obliged to go look afresh at that report.
4. The second limb of the appellant’s first ground is more substantial. It is argued that the judge was wrong to simply rely on the assessment of risk arising out of the claimant’s conviction for alcohol smuggling when assessing risk on return in 2016. I consider that the judge’s decision failed to show that he took into account the risk posed to the appellant in 2016 from his accepted conviction for drug smuggling. He failed to take into account the background information relevant to this issue when assessing current risk. Whilst he records the appellant’s submission that this would put him at risk on return as he had “an outstanding prison sentence hanging over him” (paragraph 15), he makes no finding at all on this matter subsequently. The judge’s failure to take this background would not have been material if background evidence and country guidance on risks arising from conviction for alcohol smuggling did not cast a different light from when it was looked at in detail by SIJ Batiste in 2010. In most respects this evidence did not. The grounds cite Operational Guidance Note (OGN) Iran 2012 at paragraphs 3.13.9, 3.13.10. That is curious in itself since there was more recent Home Office guidance available in the shape of Country Information and Guidance (CIG): Smugglers, Iran April 2016; but in any event neither of these paragraphs from the 2012 OGN nor the contents of the 2016 CIG indicate a different view from that taken by SIJ Batiste in 2010, both saying that such persons would not normally face disproportionate punishment. However, the grounds also cite paragraph 3.17.12 of the same 2012 OGN and this states: “As conditions in prisons and detention facilities are harsh and potentially life threatening in Iran, they are likely to reach the Article 3 threshold”. This was important post-2010 information and guidance. Further, even though the appellant was remiss in seeking to rely on 2012 information and guidance when there was more recent CIG in the form of the CIG in Iran: Prison conditions Version 1.0 February 2016, the latter reiterates a similar approach as regards prison conditions to the 2012 OGN, stating at 2.4.4. that “[p]rison conditions in Iran are, in individual cases, likely to create a real risk of torture and/or inhuman or degrading treatment or punishment”. The judge’s complete failure to consider the issue of prison conditions, in relation to an appellant accepted as likely on return to serve a prison sentence, was a material error of law.
5. I also consider that the appellant’s second ground is made out. This alleges that FtT Judge Burns erred materially in his approach to the YouTube evidence in particular because his assessment of it all stems from the false factual premise that the YouTube evidence “only shows half of the face”. It is quite clear that in the full video – and indeed in the screenshot which was in the bundle before the judge – almost all of the appellant’s face is visible. The judge’s error of fact regarding this matter was compounded by his failure to consider anywhere whether there was a real risk that this video has been viewed by the Iranian authorities. There was evidence before the judge that there had been at least 250 views and in such circumstances it was necessary for the judge to have assessed whether the Iranian authorities were among those who had viewed it. The judge appears to have thought that this was unnecessary because he could not accept the appellant’s claim that it was the video that had led to a court summons being issued against him in December 2012 (paragraph 28); but that did not relieve the judge of the need to consider whether it had been viewed by the authorities in any event. I note that Mr Diwnycz himself expressed concern that the judge failed to consider whether the Facial Recognition Technology used by the Iranian authorities would have been applied to the appellant.
6. I do not consider it necessary to address the appellant’s third, fourth and fifth grounds.
7. For the above reasons I conclude that FtT Judge Burns materially erred in law. It is exceedingly unfortunate that the appellant’s case thus remains unresolved. It has been the subject of a great deal of litigation stretching back over eight years. I cannot, however, overlook the fact that the nature of the judge’s errors entail that none of his findings can stand save for the finding that those made in 2010 by SIJ Batiste provide a starting point. In such circumstances the case will have to be remitted to the FtT.
Directions
8. I will direct, however, that it be heard by an experienced judge. In the meantime (and possibly with a view to resolving the appeal) the respondent is directed to submit a supplementary statement to be served two weeks in advance of the hearing explaining why she does not accept that the appellant is entitled to a grant of leave on the basis that his return would constitute a violation of Article 3, notwithstanding her own country information and guidance on prison conditions.
In Summary
9. The FtT Judge materially erred in law and his decision is set aside.
10. The appeal is remitted to the FtT.
11. The remittal is accompanied by a direction as regards (i) composition of the FtT; (ii) production by the respondent of a supplementary statement addressing the issue of whether the appellant faces a violation of Article 3 on return by virtue of the prison conditions he will experience whilst serving his sentence for alcohol smuggling.

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 his 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: 21 March 2017

Dr H H Storey
Judge of the Upper Tribunal