Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: Aa/09144/2014

THE IMMIGRATION ACTS

Heard at Columbus House, Newport
Sent to parties on:
On 7 July 2016
On 5 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE L J MURRAY

Between

R S
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Pickering instructed by Duncan Lewis Solicitors
For the Respondent: Mr Richards, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is an Iranian national. On 14 October 2014 the Respondent refused his application for asylum and concluded that his return to Iran would not breach his rights under the European Convention on Human Rights (ECHR). His appeal was allowed by First-tier Tribunal Judge Suffield-Thompson in a decision promulgated on 9 March 2015. Upper Tribunal Judge Poole allowed the Respondent's appeal against that decision and the matter came before First-tier Tribunal Judge Baker for a de novo hearing on 6 January 2016. She dismissed his appeal on all grounds. The Appellant sought permission to appeal to the Upper Tribunal against that decision which was refused by First-tier Tribunal Judge Simpson on 26 March 2015 and then granted on renewal by Upper Tribunal Judge Coker on 13 April 2016. Permission was granted on all grounds.

The Grounds

2. There are three grounds of appeal. The First-tier Tribunal had before it a report by Dr Kakhki an Iranian country expert dated 4 January 2016. Firstly it is asserted that the First-tier Tribunal's treatment of the expert evidence was "irregular", secondly it is asserted that the Tribunal erred in approach to 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) and thirdly it is asserted that the First-tier Tribunal erred in relation to findings regarding obtaining a travel document. In relation to Ground 1, the renewed grounds state that the grounds to the First-tier Tribunal are still relied on. In summary, those grounds assert that the First-tier Tribunal erred in finding that the expert's assessment of risk was "inextricably linked" with the claims which were found not to be credible that he had been directly involved with the KDPI. The grounds argue that the expert made it clear that the Appellant would be at risk even if the KDPI links were found not to be credible. The Appellant would have to disclose on return that he claimed asylum and why and this would then amount to further risk to the Appellant. The First-tier Tribunal found that the expert had not specifically addressed how the Iranian regime would view the illegal exit and draft evading given the Appellant's age when he left Iran but it was clear that the expert knew the Appellant's age. The background evidence showed that once detained the conditions were likely to meet the Article 3 threshold.

3. Ground 2 asserts that the First-tier Tribunal should have departed from the country guidance on the basis of the expert's report and background evidence, to which she did not refer. The Judge had not given proper reasons for rejecting the Appellant's evidence and the situation had moved on since SB (Iran). The Appellant's expert had confirmed that he was not asked to address the additional factors of the return of failed asylum seekers when he provided an expert report for SB (Iran) and therefore it did not have to be followed. Alternatively, if SB (Iran) gave proper guidance then it could have been applied in so far as the 'aggravating factors' could be applied to its guidance.

4. Ground 3 states that the First-tier Tribunal did not address the procedure to obtain a travel document (as described by the country expert) and the questions that would be asked before the travel document would be issued. The expert made it clear that even if issued with a travel document there could still be a risk as there would not be an exit stamp in the document. The First-tier Tribunal, it is asserted, did not give adequate weight to that. The renewed grounds add to the grounds for permission to the First-tier Tribunal in asserting that the First-tier Tribunal had made no reference to a print out from the Respondent's guidance which stated that "Oman now represents Iran's interests in the UK via its London Embassy, but is not currently providing consular services to Iranians".

The Rule 24 response

5. The Respondent opposes the Appellant's appeal and submits that the Judge gave a detailed and thorough determination and considered the expert's report at some length. The First-tier Tribunal gave sustainable reasons for finding that the Appellant was not at risk. It is contended that the grounds have no merit and merely disagree with the adverse outcome of the appeal without identifying any arguable material error of law.

The Hearing

6. Ms Pickering submitted that the First-tier Tribunal did not given consideration to the report of Dr Kakhki. The Judge rejected the report concluding it was based on the premise that the Appellant would have problems due to involvement with the KDPI but there was more to the report than this point. There were a number of references in his report to instances of those claiming abroad facing problems on return. At pages 33 to 37 of the report Dr Kakhki referenced examples of ill-treatment on return to Iran which was misinterpreted. The Judge found that the Appellant would be sent back on a travel document and then went onto look at comments of expert. If returned on a travel document the Iranian authorities would know of his asylum claim. The Judge erred in her approach to SB. Mr Palmer's skeleton argument before the First-tier Tribunal at page 3 made it clear that there was a change in the country conditions. Further reports were contained in the Appellant's bundle detailed from paragraph 3.3 to 3.10 of the skeleton argument. This case was not on all fours with SB and the Judge said that it was only the issue of illegal exit that was relevant to this Appellant which missed the point. It was the cumulative effect of the lack of the documentation and travel document that would reveal the nature of the asylum claim and the Judge had erred. Further, there was the issue of the Appellant's conduct being interpreted as being anti-Islamic conduct. The expert report dealt with it at pages 90, 92, 102, 106, 121 and136.

7. Mr Richards submitted that there was no material error. The expert's report was dealt with at some length and the Judge concluded properly that there was not the evidence which would cause her to depart from the country guidance. If there were any doubt on that matter one only had to look at the subsequent country guidance case of SSH and HR (illegal exit: failed asylum seeker) Iran CG [2016] UKUT 00308 (IAC) . Dr Kakhki sought to make the same arguments and those arguments were in effect rejected at paragraph 32 in particular and the SB principle still applied. There was no risk on return to those who exited illegally and made a claim abroad. The fresh country guidance underscored the fact that there was no material error of law and it ought to stand.

8. In reply Ms Pickering argued that this case was not on all fours with country guidance and particularly in respect of Judge's view of the way Appellant gave evidence and with a mind to the comments that were made at paragraph 23 of the country guidance case. There was a query about cooperation. It could not be characterised as a case where there would not be a material error notwithstanding the Country Guidance.

Discussion and Findings

9. The Appellant's previous appeal was dismissed by First-tier Tribunal Judge Hart in 2010. Judge Hart found the Appellant's account of his material history in Iran not to be credible. First-tier Tribunal Judge Baker found that Devaseelan applied and adopted his findings as her starting point. No issue has been taken in the grounds of appeal with that approach. In consequence therefore the material facts on which she was obliged to determine the Appellant's appeal were that he exited Iran illegally, had no travel documentation and was a putative failed asylum-seeker.

10. Her consideration of the expert's report starts at paragraph 20 of the decision. She comments in that paragraph that it is unclear why the expert was asked to comment on the risk to the Appellant in light of his claimed association with the Kurdish Democratic Party of Iran (KDPI) given the findings of Judge Hart in 2010. The grounds assert and Ms Pickering argued that the First-tier Tribunal erred in rejecting the report on the grounds that it was premised on the Appellant's association with the KDPI. I do not find that this criticism is made out. Dr Kakhki was instructed to comment on the risk faced by the Appellant on this ground and the first 30 pages of his report are dedicated to that issue. At paragraph 25 (ii) of the decision, Judge Baker finds that the expert's assessment of risk to the Appellant in relation to his Kurdish ethnicity is linked with association with the KDPI which was found not to be credible. She was undoubtedly correct about this as it is manifestly the case from Dr Kakhki's reasoning at page 27 cited at 25 (i) of the decision. It is clear from paragraph 25 (iii) of the decision that Judge Baker did not reject the expert's report in its entirety on this basis as she states: "Accordingly only some aspects of the report are of assistance to me, for example, Section 2 "returning to Iran following illegal exit". She then embarked on a full analysis of the expert's evidence in relation to illegal exit, the risk as a failed asylum seeker and returning without having performed military service.

11. The grounds assert that Judge Baker misunderstood the argument advanced that SB did not provide an answer for the Appellant's argument that he would be at risk as a failed asylum seeker. At paragraph 25 (iv) Judge Baker cites paragraph 31 of the report where Dr Kakhki states that in SB he was not instructed to conduct specific research on the risk of return and provided a general overview of the risks associated with illegal exit, without reference to the question of whether seeking asylum abroad triggered any additional risk factors for a returnee. She clearly therefore properly apprehended the ambit of the report's remit in relation to the risk to failed asylum-seekers.

12. She then assessed the expert's evidence in relation to each of the risk factors he discussed. Firstly she addressed section two of the report on returning to Iran following illegal exit. She found at paragraph 25 (vi) that the Appellant would be sent back on a travel document. The grounds assert that she failed to address the evidence in relation to obtaining a travel document and failed to give reasons for concluding that he could return on one. Dr Kakhki set out in pages 31 and 32 of the report the procedure and requirements of the process of obtaining a travel document and stated that if the Appellant was not in possession of any official travel document and was returned to Iran without prior arrangement with the Embassy he would not be accepted by Iranian immigration officials on arrival. Judge Baker found, in accordance with the expert's opinion at page 33, that if the Appellant arrived without a passport or valid documentation that the Appellant would be placed on the next flight and returned. She found that this would not be relevant to the Appellant if he was removed if his appeal was dismissed.

13. Dr Kakhki did not state in his report that the Appellant would be unable to obtain a travel document. Judge Baker referred at paragraph 25 (x) of her decision to the Respondent's Country Information on entry and exit procedures updated on 15 December 2015 at page 312 of the Appellant's bundle in concluding that the Appellant would be able to obtain a travel document. She further found at paragraph 25 (xiii) that Iranian nationals are able to access consular services and request travel documents through the Sultanate of Oman Iranian Interest Section in London or through competent Iranian authorities outside the UK. She therefore gave sufficient reasons for her finding grounded in the evidence. The grounds assert that she failed to refer to a print-out in the Appellant's supplemental bundle stating that Oman was not currently providing consular services to Iranians. It does not appear that the Judge was specifically referred to this in the Appellant's skeleton argument. In any event, the Upper Tribunal found in SSH and HR (illegal exit: failed asylum seeker) Iran CG [2016] UKUT 00308 (IAC) after having heard Dr Kakhki's evidence on the issue that an Iranian male who does not possess a passport will be returnable on a laissez passer. Therefore even if the First-tier Tribunal had erred in relation to her findings on the evidence it would not be material, or viewed alternatively, the decision would have to be remade in the same way.

14. She then turned to the expert's evidence on then treatment of failed asylum seekers at paragraph 25 (vii) of the decision. She sets out the expert's conclusion that the Appellant would be at risk having left illegally, stayed abroad for a prolonged period and having claimed asylum which would be perceived as an act of dissension against the Islamic Republic of Iran and that this would increase the likelihood that he would face persecution at the hands of the authorities. She concludes, in respect of the expert's conclusions with regard to draft evasion and illegal exit that the expert did not address how the authorities would deal with an individual who left at the age of 14, well under conscription age and who would have been under the control of his relatives. She the directed herself appropriately at paragraph 25 (viii) with regard to the test for departing from country guidance and set out the ratio of the cases of SB and BA. She found that the only factor relevant to the Appellant from the guidance would be his illegal exit and that the evidence supplied by Dr Kakhki was not sufficient to cause her to depart from the country guidance (paragraph 25 (x)).

15. Judge Baker gave reasons for finding that the Appellant would not be at risk as a failed asylum seeker and as an individual who had not undertaken military service because she found Dr Kakhki had not addressed the risk in light of the fact that the Appellant was 14 when he left Iran (paragraph 25 (vii)). She also preferred the Respondent's evidence in relation to illegal exit at page 312 of the Appellant's bundle and found at paragraph 25 (xii), having taken into account all of the reports that there was insufficient evidence to depart from the country guidance and insufficient evidence to find that an individual with the appellant's profile would be at risk on return. She added to this at paragraph 25 (xvii) that Dr Kakhki was a 'lone voice' which she found was reflected in the summary of his evidence and those of other well-respected sources as to the risk of return in the Respondent's December 2015 guidance. It was open to her to reject the expert's conclusions on the basis of the Respondent's evidence and she gave adequate reasons for so doing. In any event, the Upper Tribunal in SSH concluded after having heard Dr Kakhki's evidence (summarized at Appendix 1) which was materially the same as in the instant case, that there was not a risk to failed-asylum seekers who had left illegally as there was insufficient evidence to substantiate this. Had the First-tier Tribunal erred in relation to her findings on the evidence it would not be material, or viewed alternatively, the decision would have to be remade in the same way.

16. Ms Pickering argues that the case of SSH does not provide a complete answer to the risk to the Appellant and leaves the door open to the Appellant to argue that that he would not tell the truth when questioned on return. I have found that there is no error of law in the decision of the First-tier Tribunal. On the evidence before her she did not err in refusing to depart from the Country Guidance. I further find no reason on the evidence before the First-tier Tribunal why the Appellant would not tell the truth when questioned on return.

Conclusions:
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.

I do not set aside the decision.

Anonymity
The First-tier Tribunal made an order and I continue that order (pursuant to 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 her 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 Dated 5 October 2016
Deputy Upper Tribunal Judge L J Murray