Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11030/2013

THE IMMIGRATION ACTS

Heard at Stoke
Decision & Reasons Promulgated
On 24 November 2016
On 20 January 2017

Before

MR C M G OCKELTON, VICE PRESIDENT
UPPER TRIBUNAL JUDGE MARTIN

Between

MIRAN ABDULZARDA
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr G Brown, instructed by Greater Manchester Immigration Aid Unit.
For the Respondent: Mr C Bates, Senior Home Office Presenting Officer.

DETERMINATION AND REASONS

1. This appeal has a long and involved history. The appellant appealed to the First-tier Tribunal against a decision of the respondent on 5 December 2013 to give directions for his removal from the United Kingdom. The appellant is Kurdish and claimed to be of Iranian nationality. The proposed destination for his removal was therefore nominated as Iran. That appeal came for a hearing before Judge Thorne in Manchester on 7 February 2014. Judge Thorne heard evidence including oral evidence from the appellant. He did not regard the appellant as a witness of credit and firmly concluded that the appellant had failed to establish even to the lower standard applicable that he was or ever had been a national of Iran. He went on to dismiss the appeal, essentially on the basis that the appellant had not established any of the grounds on which he might succeed. The appellant then appealed to the Upper Tribunal. The ground was that the First-tier Tribunal Judge failed to give any or any adequate consideration to whether the appellant "as a non-Iranian Kurd" would be at risk if returned to Iran. That appeal was heard before Deputy Upper Tribunal Judge Harris, who concluded that the ground was made out and remitted the appeal to Judge Thorne for consideration of this outstanding matter.

2. By the time the appeal came before Judge Thorne again, on 6 October 2014, the position was that the Secretary of State had recognised that removal to Iran was in practical terms impossible (because of the finding as to the appellant's nationality), but had not withdrawn her decision. Judge Thorne reasoned in his determination that he simply could not close his eyes to the reality of the situation that there is absolutely no prospect that the appellant would ever find himself in Iran as a result of any action taken by the UK authorities. He said that the hypothesis of the appellant's being in Iran was "entirely fanciful and not worthy of further analysis". In paragraph 24 he wrote as follows:

"In any event, even if I were to allow myself to enter the hypothetical world pressed upon me by Mr Nicholson [for the appellant] and accept the fantastical premise that somehow (despite the practical impossibility) the appellant has been transported by airplane to Tehran airport, there is no objective evidence to establish that a non-Iranian Kurd like the appellant would be subjected to serious harm at the airport by the Iranian authorities as opposed to merely being refused entry at the airport. I was shown a great deal of objective information concerning the treatment of Iranian Kurds in Iran (including the expert report of EGH Joffe) but there is no evidence concerning the treatment of non-Iranian Kurds."

Judge Thorne therefore dismissed the appeal again.

3. There was then a further appeal to this Tribunal, on the ground that, contrary to what he had said in his determination, Judge Thorne was obliged to determine the appeal on the hypothesis of removal to Iran. Permission was granted in November 2014. There was (as is evident) a considerable administrative delay before the matter came before this Tribunal again.

4. Mr Brown told us, as Mr Nicholson had told Judge Thorne, that the primary finding that the appellant is not a national of Iran was not being challenged. Mr Brown proposed to adduce further evidence before us as to the situation of non-Iranian Kurds in Iran. No previous application to this effect had been made.

5. We are confident that it is right that, despite the impracticality of the proposal, the First-tier Tribunal was obliged to determine the appeal on the hypothesis of removal in accordance with the directions. The relevant ground of appeal, set out in s 84(1)(g) of the 2002 Act was (before amendment by the 2014 Act):

"That removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdom's obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant's Convention rights."

6. Regulations required the Secretary of State to nominate a removal destination, precisely so that that ground could be considered in some sort of concrete way. The actual removal of the appellant to the destination specified was irrelevant: the question was whether his removal would breach his rights under either of the conventions specified. To that extent the First-tier Tribunal Judge erred in failing to consider the issue.

7. Reality, practicality and evidence do, however, have a role. Where a national of a country is removed by air to the principal airport of that country, the assumption will normally be that, using the nationality documentation that he either retains or has been provided with for the journey, he will be admitted through the country's immigration procedures as one of its citizens. Where, however, a person arrives at the airport in a country of which he is not a national, and for which he has no visa or any other relevant immigration documentation, there is no reason at all to suppose that he will be admitted.

8. In the present case, the appellant has no claim to be allowed to enter Iran. The hypothesis covered by the destination named in conjunction with the removal decision against which he appeals is therefore limited to his arrival at Tehran airport. There is no evidence that he would be admitted, nor any reason to suppose that he would be admitted. His experience on the soil of Iran can therefore be assumed to be limited to being refused admission and being returned to the Untied Kingdom. There is, as Judge Thorne said in the paragraph of his second determination that we have set out above, no evidence that that would pose any risk to the appellant. So far as concerns Mr Brown's suggestion that evidence on that or any other topic be admitted now, we see no reason to grant the application made, apparently without notice, and so late.

9. This appeal stands or falls on the basis of the material that was before Judge Thorne. He correctly dismissed the appeal for the reasons given in his paragraph 24; and it follows that any other error in the determination does not merit its being set aside. We therefore affirm it and dismiss this appeal.

C. M. G. OCKELTON
VICE PRESIDENT OF THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Date: 8 December 2016