Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: aa/10325/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 2nd September 2016
On 14th September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE D E TAYLOR

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

and

AK
(ANONYMITY DIRECTION made)
Respondent

Representation:

For the Appellant: Mrs R Pettersen, Home Office Presenting Officer
For the Respondent: Mr A Mahmood of Counsel instructed by Saracens Solicitors

DECISION AND REASONS

1. This is the Secretary of State's appeal against the decision of Judge Myers made following a hearing at Bradford on 15th June 2016.
Background
2. The claimant is a citizen of Iran born on 2nd August 1980. He entered the UK as a student on 15th October 2014 and claimed asylum on 9th January 2015. He was refused on 10th July 2015.
3. This is not a case where credibility is any longer under challenge.
4. The claimant was born in Kuwait to an Iranian father and Kuwaiti mother. He has never lived in Iran and does not speak Farsi. His mother died and his father remarried; the family still lives in Kuwait. His Kuwaiti residency was dependent on his mother's nationality when he was a child and after she died he had residency through his employment as a sales manager with the Alhaddag Marine Company.
5. Whilst he was in the UK studying for a Masters degree at the University of Bradford he was informed that he had been made redundant and as a result his residency in Kuwait would be cancelled. He cannot apply for Kuwaiti nationality because the reality is that people born to Kuwaiti mothers with non-Kuwaiti fathers are unlikely to be granted nationality.He has since tried unsuccessfully to apply for new jobs there.
6. The claimant has only been to Iran once with his father when he was 13.
7. The claimant says that he would be subject to persecution if he was returned to Iran both as a Sunni Muslim and because he would refuse to participate in national service as the Iranian government supports the Syrian regime which is involved in war crimes and also supports Al Houthis in Yemen. Furthermore he would be persecuted as an Ahwazi Sunni Muslim.
8. The judge concluded that it was not open to the claimant to acquire residency in Kuwait.
9. So far as Iran was concerned, she noted that punishment for draft evasion does not amount per se to persecution (Sepet v SSHD [2003] UKHL 15). She also said that there was no evidence that the claimant would be forced to serve in the Iranian military in circumstances where he would be forced to commit atrocities or human rights abuses.
10. She then wrote as follows.
"I accept that the objective evidence relied on by the appellant shows that as an Ahwazi Arab he may be liable to discrimination and oppression by the Iranian state, and that there has been an increase in the levels of suppression in recent years of Ahwazi Arab activists. SA (Iranian Arabs - no general risk) Iran CG [2011] UKUT 41 held that an Iranian Arab does not risk persecution or other ill-treatment solely by reason of ethnicity. However an Iranian Arab returned from the UK enhances other risk factors.
I find it reasonably likely that he will come to the attention of the authorities on his return to Iran because of his ethnicity, the fact that he has lived in Kuwait all his life, and has return to Iran from the UK. I accept that he will refuse to undertake his national service by reason of his political opinion and will thus face punishment by the authorities. The objective material in the appellant's bundle highlights that Sunni Muslims and Arabs face disproportionate punishment and ill-treatment in prisons. Taking all of these factors together, and applying the lower standard of proof, I find that the combination of risk factors in the appellant's case means that it is reasonably likely that he will face persecution by reason of his political opinion."
11. On that basis she allowed the appeal.
The Grounds of Application
12. The Secretary of State sought permission to appeal on the grounds that the judge had failed to refer to any material, however briefly, which would establish that the claimant would either be imprisoned or be ill-treated in prison were he to return to Iran. Accordingly the Secretary of State cannot properly understand the reasons why the appeal was allowed. For completeness, whilst the judge referred to the cases of SA and Arab ethnicity enhancing other risk factors, there were no established risk factors in this case as there was in the case of SA. The claimant would simply be an Iranian Arab returning to the country of his nationality.
13. Permission to appeal was refused by Judge Davidge who said that nothing in the grounds disputed the evidence in the claimant's bundle or revealed as perverse the judge's assessment of the content thereof. She had plainly made the link between the refusal to do national service and the punishment of imprisonment which would follow, and the risk factors which arise from his ethnicity in that context.
14. The Secretary of State renewed her grounds maintaining that the judge had not given proper reasons for her decision.
15. On 9th August 2016 Upper Tribunal Judge Freeman granted permission and wrote as follows.
"Whilst I do not agree with the respondent's comments about the First-tier permission decision, which was perfectly clear in its terms, the hearing judge found no Convention reason behind the appellant's unwillingness to do military service on return to Iran, for the reasons she gave at paragraphs 23 to 24. While the appellant may have had valid political reasons to disagree with the Iranian government's interventions in the Yemen, Syria or Iraq, he did not express a principled objection to military service as such. In the circumstances there is a clearly arguable point of Convention law as to whether he was entitled, even so, to succeed for the reasons given by the judge at 26, on the basis that he would come to the adverse attention of the authorities for his unwillingness to serve, and suffer the consequences or in terms of disproportionate ill-treatment as a Sunni Muslim."

Submissions
16. Mrs Pettersen relied on her grounds. She also relied on the external information cited in the reasons for refusal letter which acknowledged that any treatment the claimant might face as a Sunni Muslim in Iran may amount to discrimination but will not amount to persecution.
17. The reasons for refusal letter acknowledges that military service is mandatory in Iran and there were no official reports of conscientious objection. However the treatment he might receive for objecting to military service would be prosecution in line with the law of Iran and not persecution.
18. She also relied on the COI Report for Iran in relation to military service which states that it is sometimes possible to buy an exemption, although it is risky, expensive and highly illegal. The report cites a CPTI submission which said that Iran was a country where certification of military service status was a prerequisite for such purposes as obtaining a passport or driving licence or employment in the public sector but it was also reported that Iranians living abroad might purchase exemption for a fee of between $1,000 and $3,000. Dr Khaki had provided a translation of information on the UK website of the Iranian Embassy which noted the existence of the Kefalat Exemption, a provision for exemption in cases where the conscript's father is over 60, the conscript is his only male child and is over 18 years of age.
19. Finally she cited a Danish Fact-Finding Report of 2013 which reported that there was an easing in the requirements to allow people to leave the country in the sense that a young man wishing to leave before having completed his military service was able to deposit a bond of US$12,000 and be allowed to travel abroad for study. If he did not return the amount was taken by the authorities.
20. In the context of that information, she submitted that the judge had unlawfully jumped to the conclusion that the claimant would be imprisoned for military service and that that imprisonment would result in Article 3 mistreatment and/or persecution because of an imputed political opinion. Whilst he would not be expected to lie about his views, he had not established that he would be at real risk of ill-treatment on return. He had an Iranian passport, which would lessen any risk to him, no profile of opposition to the authorities and there was no evidence that he was an activist of any kind. She relied on the decision of SA for the proposition that he would not be at risk on account of his Ahwazi ethnicity.
21. Mrs Pettersen also relied on the translation of the document in the claimant's bundle which states that the holder of the visa had the right to enter and exit the Iranian border twice until 20th March 2017 based on the conditions that the total stay should not exceed three months.
22. She asked that the decision be set aside and remade dismissing the appeal.
23. Mr Mahmood relied on his skeleton argument prepared for this hearing. He submitted that the decision was adequately reasoned and sustainable. He also pointed out that conscientious objection was not recognised in Iran. The claimant was not an only child and could not meet the exemption requirements. Moreover his case was distinguishable from other students living abroad because he had never lived in Iran.
24. He would be immediately identified and asked about his background. He would then disclose his objections to the authorities' actions in Syria and Iran and would be treated worse by them, not only because of his political opinion but because of his ethnicity. He had set out his views clearly in his witness statement and his credibility was unchallenged.
25. He referred me to the objective evidence which was before the judge. There was a substantial amount of evidence that activists from the Islamic Republic's Sunni Minority had been executed, over 1000 people in 2014. Amnesty International recorded that in 2015 to 2016 the authorities severely curtailed the rights to freedom of expression, association and assembly and that religious minorities faced pervasive discrimination in law and in practice. In particular security forces disproportionately repressed protests by ethnic minority groups including Ahwazi Arabs who were systematically discriminated against particularly in employment, housing, access to political office and the exercise of cultural, civil and political rights. They remained unable to use their own language as a medium of instruction for primary education and those who called for greater cultural and linguistic rights faced arrest, imprisonment and in some cases the death penalty. An Ahwazi Arab street vendor who died on 22nd March 2015 after setting himself alight in a protest against the city authorities was apparently left without emergency medical treatment. Subsequent protests by ethnic minorities including Ahwazi Arabs resulted in many arrests. The Iran Human Rights Documentation Centre recorded, in April 2013, reports from human rights activists indicating that an estimated 188 Ahwazi Arabs had been arrested over the previous five weeks coinciding with the lead up to the anniversary of protests which gripped the city of Ahpaz in April 2005. Human Rights Watch reported, on 29th April 2015, the roundup and detention of scores of Ahwazi Arabs in what appeared to be an escalating crackdown in Iran's Khuzestan Province.
26. Mr Mahmood submitted that the latest reports postdated the decision in SA, and the situation for Ahwazi Arabs had deteriorated since then which provided the context in which the appellant's refusal to do military service, because he disagreed with the Iranian state's policies, should be assessed.
27. With respect to the visa Mr Mahmood said, on instructions, that the claimant had to renew his passport whilst visiting family in Kuwait. On his application form he had said that he was a student. It was explained to him that the visa was inserted in order to enable him to visit Iran and before that he had no idea that he was required to do military service.

Findings and Conclusions
28. This determination is overly concise. The fact that the judge did not refer in any detail at all to the objective evidence upon which she relied rendered it vulnerable to appeal.
29. However it is quite clear that she allowed the appeal on the basis that there were a number of interlinking factors which, together, put the claimant at risk on return. She was entitled to reach the conclusion which she did on the basis of the evidence before her.
30. First, the claim has to be assessed against the background of discrimination against Ahwazi Arabs in Iran. Whilst this in itself does not necessarilylead to persecutory ill-treatment, it does mean that the claimant is more likely to be of interest to the authorities upon removal.
31. The objective evidence in the claimant's bundle appears to indicate that the situation for Ahwazi Arabs is becoming more difficult. The judge was entitled to come to the conclusion that the claimant's ethnicity would enhance the authorities' interests in him, and his ethnicity enhances the risk of ill treatment. That is entirely in accordance with the country guidance case of SA.
32. The risk comes about because he would be of interest to the authorities on account of his ethnicity and the fact that he has never lived in Iran. However, once questioned he would disclose his objection to the regime's military activities. This is not a claim based on conscientious objection, not a principled objection to military service as such but objection to the specific actions of the Iranian regime in Syria and Yemen. He cannot be expected to lie.
33. Accordingly, the judge allowed the appeal primarily on the basis that the claimant would be at risk on return by reason of his political opinion, which would be disclosed to the authorities when he was required to do military service.
34. The objective evidence does not bear out the submission that the claimant could simply buy out his obligation to do military service by payment of a fine. He is not a returning resident. He does not fall within the exemptions as set out on the UK website of the Iranian Embassy. The COI itself reports that buying an exemption is risky, expensive and highly illegal and therefore not a course which the Secretary of State could properly advocate.
35. Finally, the visa allowing the claimant to enter Iran for two periods of less than three months takes the case no further so far as the Secretary of State is concerned and indeed is confirmation of the claimant's case that he is subject to military service on return to Iran.
36. I have some sympathy with the Secretary of State's application given the brevity of reasoning, but I am satisfied that the judge was entitled to come to the conclusion which she did on the basis of the evidence which was before her. Accordingly no error of law is established.

Notice of Decision

The original judge did not err in law. The Secretary of State's appeal is dismissed and her decision stands.

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 13 September 2016

Deputy Upper Tribunal Judge Taylor