Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10098/2014

THE IMMIGRATION ACTS

Heard at Manchester Piccadilly
Decision & Reasons Promulgated
On 30 September 2016
On 06 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE BIRRELL

Between
AHMAD FASIH RAMANDI
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:

For the Appellant: Mr Brown counsel instructed by Broudie Jackson and Cantor
For the Respondent: Mr A McVitie Senior Home Office Presenting Officer
DECISION AND REASONS
Introduction
1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of this Appellant. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.
2. In order to avoid confusion, the parties are referred to as they were in the First-tier Tribunal.
3. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Lambert promulgated on 22 April 2015 which dismissed the Appellant's appeal against the decision of the Respondent to remove the Appellant from the UK following the decision to refuse the Appellant's claim for asylum
Background
4. The Appellant was born on 21 March 1984 and is a national of Iran.
5. On 8 July 2014 the Appellant applied for asylum. The Appellant claimed to be at risk because he is a Sufi Muslim of the Dervish Nematullahi Gonabadi Order and his father is one of the 'elites' of the sect.
6. On 6 November 2014 the Secretary of State refused the Appellant's application. The refusal letter gave a number of reasons:
(a) His claim to be a Sufi Dervish was 'uncertain.'
(b) His involvement in Dervish campaigns was rejected as his account was internally inconsistent.
(c) It was not accepted that his house was raided on 1 May 2014 as it was internally inconsistent.
(d) His claim to have left Iran legally is inconsistent with the rest of his claim.

The Judge's Decision
7. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge Lambert ("the Judge") dismissed the appeal against the Respondent's decision. The Judge :
(a) Took into account that the Appellant failed to claim asylum in Holland and did not intend to claim in the UK as he wished to claim in Canada.
(b) She accepted that he was a Dervish.
(c) Noted that Mr Brown accepted that not every Dervish was at risk.
(d) The Appellant has no profile that would lead to him being targeted as she did not accept that he was involved in the campaign of March 2014 and he did not have any problems at the demonstration nor was he arrested.
(e) Did not therefore accept the reasons given for him fleeing from Iran.
(f) Found that he exited Iran legally.
(g) Found that as far as being a failed asylum seeker was concerned SB (Iran) remained good law and the Appellant was not at risk on return.
8. Grounds of appeal were lodged challenging the direction given in respect of HJ Iran; the credibility findings and the assessment of risk on return as an undocumented failed asylum seeker who had left Iran 'illegally.'
9. On 15 May 2015 Designated Judge Macdonald gave permission to appeal limited only to Ground 3 given that there was ongoing litigation on the risk on return as an undocumented failed asylum seeker.
10. At the hearing I heard submissions from Mr Brown on behalf of the Appellant that (a) The Judge made a finding at paragraph 8 that the Appellant had exited Iran with a passport that he then destroyed.
(b) The Appellants circumstances at the point of return would have to be examined.
(c) He suggested that having exited illegally but then destroyed his passport could give rise to a particular concern by the Iranian authorities. He would want to put this particular scenario to an expert as it is not covered by SSH and HR (illegal exit: failed asylum seeker) Iran CG [2016] UKUT 00308 (IAC)
11. On behalf of the Respondent Mr McVitie submitted that :
(a) SSH established that an Appellant was not at risk if they left Iran unlawfully therefore they could not be at risk if they left lawfully.
(b) The Judge had found that because the Appellant was a Sufi he was not for that reason alone at risk.
(c) It could not be right for this Appellant who left lawfully to be at a greater risk than a Kurd (in SSH) who had left illegally.
(d) The Appellant was simply a failed asylum seeker.
12. In reply Mr Brown on behalf of the Appellant submitted
(a) SSH did not address the facts of this case.
(b) He did not know what attitude the Iranian authorities would have to someone who exited legally and then destroyed their passport.

Finding on Material Error
13. Having heard those submissions, I reached the conclusion that the Tribunal made no material errors of law.
14. I am satisfied that the Judge's unchallenged finding in this case was that simply being a Sufi did not place an applicant at risk. The Judge went on to consider the Appellants claim that he participated in protests in March 2014 that drew him to the attention of the authorities and gave a number of detailed reasons why she rejected this account. Therefore, as a result of this conclusion she found that the Appellant had no profile and was of no interest to the authorities.
15. The grounds at paragraph 8 onwards suggest that the Appellant left Iran 'illegally' but the Judge found at paragraph 9.8 that having rejected his reasons for fleeing Iran she did not accept that he had a reason to leave Iran illegally and that the Iranian authorities would view him as someone who exited using a valid passport. The only 'illegal' aspect of his travel that she accepted was that he obtained an illegal entrance visa to Holland which as the Judge finds was a deception against the Dutch Government but not against the Iranian Government.
16. The Judge made no explicit finding that the Appellant had destroyed his passport having recorded it as part of his history at 7.5. However even if she accepted that he had done this the guidance given in SSH and HR (illegal exit: failed asylum seeker) Iran CG [2016] UKUT 00308 (IAC) was
(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.
17. I am satisfied that having rejected those reasons claimed by the Appellant that he claimed made him a person of interest to the authorities at the time of his flight and potentially on return the Appellant was, as Mr McVitie argued, simply a failed asylum seeker without a passport. I find there was no reason articulated before the Judge or indeed before me why a person who had left legally like the Appellant could be in a worse position than someone who had left illegally. The Judge was therefore entitled to conclude that there was no risk on return.
CONCLUSION
18. I therefore found that no errors of law have been established and that the Judge's determination should stand.
DECISION
19. The appeal is dismissed.

Signed Date 5.10.2016
Deputy Upper Tribunal Judge Birrell