Tribunal decisions

The decision

IAC-FH-AR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11257/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 24 January 2017
On 13 March 2017

Before

UPPER TRIBUNAL JUDGE KOPIECZEK

Between

HN
(ANONYMITY DIRECTION MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms R Pennington, Counsel instructed by Hasan Solicitors
For the Respondent: Mr P Nath, Senior Home Office Presenting Officer

DECISION AND REASONS

1. This appeal comes back before me for a re-making of the decision, after a hearing on 17 October 2016 following which I found an error of law on the part of the First-tier Tribunal Judge ("FtJ") who dismissed the appellant's appeal against the refusal of an asylum claim.
2. In order to put this decision into context, I reproduce the error of law decision in full as follows:
“DECISION AND DIRECTIONS
1. The appellant is a citizen of Iran born on 28 May 1989. He is said to have arrived in the UK on 17 October 2015. He made a claim for asylum which was refused in a decision dated 10 August 2015.
2. His appeal came before First-tier Tribunal Judge Heatherington (“the FtJ") on 29 June 2016, whereby the appeal was dismissed on all grounds.
3. The appellant's asylum claim was based on his membership of the Dervish Nematollahi Gonabadi sect of Sufisim. The FtJ accepted that the appellant was a member of the Dervish Nematollahi Gonabadi, but concluded that his membership of that group was at a low level. He found that the appellant did not hide his faith when he was carrying out military service. The FtJ appears to have accepted that the appellant suffered some discrimination during military service, but again found that that was at a low level, and falling “a long way short of persecution”.
4. The contention that the appellant's home had been visited five or six times by security services was rejected as being implausible. He found that videos made of a Dervish shrine, and the home of the head of the Dervish Nematollahi Gonabadi, and in which the appellant appears, were merely part of the appellant's plan to come to UK and claim religious apostasy as a ground of asylum. He said that he attached little weight to that evidence.
5. He found against the appellant in terms of section 8 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, because of his failure to claim asylum in France and other safe countries before coming to the UK. He concluded that the appellant is an economic migrant and that he would not be persecuted for any reason on return to Iran.
The Grounds and Submissions
6. The Grounds contend that the FtJ failed to give consideration to the risk to the appellant on account of his religion, and had failed to make any findings on the background information or “extensive documentation” provided by the appellant in relation to risk on return. There was similarly no assessment of the risk to the appellant in addition on account of his illegal exit.
7. In the respondent's ‘rule 24’ response, the decision in SS and HR (Illegal exit: failed asylum seeker) Iran CG [2016] UKUT 00308 (IAC) is relied on. It is pointed out that the grounds do not seek to argue that the FtJ erred in finding that neither the appellant nor his mother had previously suffered persecution. The appellant had given his religion as Shia Dervish when he enlisted in the military, and he suffered no more than discrimination.
8. In submissions on behalf of the appellant Ms Pennington argued that the background evidence suggested that a person in the appellant's situation would be at increasing risk. The skeleton argument that was before the FtJ referred to illegal exit as part of the basis of risk on return. The appellant had been filmed in 2011 at a demonstration, a matter referred to in his witness statement.
9. It was submitted that it was agreed between the parties before the FtJ that the claim was capable of succeeding, in terms of the background evidence pointing to instances of persecution for those involved in that particular sect of Sufism. In support of that last contention in terms of an agreement before the FtJ, I was referred to [12] of the FtJ’s decision, which itself refers to [7] of the decision letter. It was further submitted that there was discussion in open court between the parties in closing submissions to the effect that it was agreed that there are individuals who belong to the Gonabadi sect who should be granted protection, but the appellant's membership of that religious group was not accepted on behalf of the respondent.
10. I was referred to a report at A46 of the appellant's bundle, from refworld, and the Iran Country of Origin Information Report, dated 16 January 2013 (“COI”) in support of the contention that there was a real risk of persecution for those openly belonging to or practising that faith.
11. As to whether the FtJ accepted that the appellant had left Iran illegally, it was submitted that there was no finding on that matter.
12. Although the FtJ said that the appellant's membership of that particular sect was at a low level, he had not explained what that meant.
13. Ms Isherwood submitted that there is no reference to any agreement between the parties in the FtJ’s decision. The appellant's witness statement is silent as to how he left Iran. In the screening interview he said that he has his passport in Iran.
14. The adverse credibility findings had not been challenged. The background evidence concerned mostly 2011, and the appellant left in 2013. The background evidence suggests that the difficulties have been for people at high levels of that sect. The appellant was found to be a low level member.
15. Although it was accepted on behalf of the respondent that there was no finding by the FtJ as to illegal exit, which does amount to an error of law, that error of law is not material. Although the FtJ did not refer to background evidence, he said at [1] that he had considered all the oral and documentary evidence submitted.
Error of Law - Conclusions
16. I indicated to the parties that I was satisfied that the FtJ had erred in law, and that that error of law was such as to require his decision to be set aside.
17. I do not accept that there is anything to support the contention that there was any agreement between the parties to the effect that the appellant's claim was “capable” of succeeding, or that the background evidence pointed in any particular direction, as seems to have been the tenor of the submissions before me. All that appears to have been agreed between the parties is that the appellant’s claim engages the Refugee Convention. The FtJ 's decision at [12] simply refers to [7] of the decision letter, which is to like effect.
18. There is no express, or even discernible implied, finding in terms of whether the appellant left Iran illegally. It could be said that the evidence tends in that direction, but this is a matter which the FtJ needed to make a clear finding about, which he did not. In that respect I am satisfied that he erred in law.
19. Furthermore, there is no reference at all in the FtJ’s decision to any of the background evidence in the appellant's bundle. General assertions as to the risks those of the Dervish faith are subjected to in Iran are advanced in the skeleton argument that was before the FtJ. More significantly, the index of documents identifies those documents upon which reliance is placed in terms of human rights violations against Dervishes, and those from the appellant's particular sect. None of that evidence is referred to in the FtJ’s decision.
20. It is critical to an assessment of risk on return to make an appraisal of the relevant background evidence. The FtJ in this case failed to do so. Again, in that respect I am satisfied that he erred in law.
21. It is not contended on behalf of the appellant that the FtJ's adverse credibility findings are vitiated by any error of law. Indeed, in the renewed grounds of appeal to the Upper Tribunal it is accepted that the FtJ was entitled to find as he did in terms of past persecution.
22. I canvassed with the parties the question of whether in the light of my decision to set aside the FtJ’s decision the matter should be remitted to the First-tier Tribunal or re-made in the Upper Tribunal. I have concluded that because the main factual issues have been determined by the FtJ it is not appropriate for the matter to be remitted to the First-tier Tribunal.
23. However, I do not consider it appropriate to proceed to a re-making of the decision without a further hearing. That is because I consider that the FtJ’s findings are incomplete, in particular with reference to the question of illegal exit. That is a matter upon which I will require further submissions from the parties.
24. Furthermore, I do not consider that at present I have received full and complete submissions in relation to the import of the background evidence. However, on behalf of the appellant it was agreed that there was no need for any further oral evidence.
25. Accordingly, the matter will be re-listed for further hearing. The parties are to have careful regard to the directions set out below.
DIRECTIONS
(1) At the next hearing the parties must be in a position to make submissions as to what findings of fact are to be preserved.
(2) No later than 7 days before the next date of hearing, the appellant is to file and serve a skeleton argument identifying what aspects of the background evidence are relied on, with reference to the name of the document, the page number the bundle, and a summary, or complete quotation, of the text relied on.
(3) It is not considered that there is any need for any further oral evidence to be given.”

3. As I said in the error of law decision, it was not contended on behalf of the appellant that the FtJ's adverse credibility findings are vitiated by any error of law. I have set out the FtJ's main findings at [3]-[4] of the error of law decision. There is no reason as to why those findings of fact cannot stand and the contrary was not suggested to me at the resumed hearing.
4. As I indicated to the parties, the two factual issues that require determination are those of illegal exit, and the effect of the background evidence.
Submissions
5. The following is a summary of the parties' submissions. Ms Pennington accepted that it was not sufficient for the appellant to establish a risk of persecution that he left Iran illegally. Risk on return in this case requires focus on a combination of illegal exit and low level membership of the Dervish faith/Gonabadi order.
6. As to illegal exit, I was referred to the decision letter at [16] and [17], in particular with reference to it stating that the appellant entered the UK clandestinely, and the fact that a 'section 8' point was taken against him in terms of his failure to have claimed asylum in France, also referred to by the FtJ at [20].
7. Although the appellant had not dealt with the question of illegal exit in his witness statement, that was prepared as a "continuation" of his interview with the Home Office. I was also referred to questions 44 and 48 of the asylum interview. It was submitted that the decision letter did not take any issue with any aspect of his account of his leaving Iran.
8. The FtJ had accepted his account of membership of a sect of Sufism, and he did not hide his faith when he was carrying out his military service. Because he would be subject to an assisted return as he has no documents, he would be interviewed. He had not previously sought to hide his faith and was unlikely to do so on return, and could not be expected to.
9. The background evidence as set out in the appellant's skeleton argument and background documents were relied on, including with reference to what were said to be conditions for those of the appellant's faith since he had left. It was submitted that it was not only high-level members that were at risk, and there have been attacks on the Dervish as a community.
10. The appellant's religious beliefs would become known to the authorities and there would then arise the issue of further questioning.
11. Mr Nath did not concede that the appellant had left Iran illegally, and reference was made to the decision letter at [16]-[18] in terms of the appellant having been in France before coming to the UK. The appellant had shown resourcefulness in getting to the UK. Although it was accepted that he had no passport or other documentation, that does not mean that he left Iran illegally. There were also the general credibility points to consider.
12. As was pointed out in the decision letter at [14] there was nothing to indicate that the appellant was specifically targeted (as a Dervish). The evidence before the FtJ recorded at [10] was that the appellant's mother had not suffered persecution either, and his membership of the faith was at low level.
13. Mr Nath referred to the guidance in SS and HR (Illegal exit: failed asylum seeker) Iran CG [2016] UKUT 00308 (IAC) and the Country Information and Guidance on Iran entitled "Illegal Exit" dated July 2016 ("the CIG"), in particular at paragraph 5.1.1.
My assessment
14. I am satisfied that it is reasonably likely that the appellant left Iran illegally. In the first place, the decision letter does not suggest otherwise. Although at [13] of the decision it is said that no part of his claim is accepted, between [16]-[18] the respondent relies on his having entered the UK illegally and there is nothing to indicate that he travelled to France legally from Iran.
15. In the screening interview in answer to question 2.5 he said that he did not use any documents to travel to the UK and at question 2.2 he said that his passport is in Iran. In his interview at questions 44 and 48 he gave an account of having travelled across the border by car. No part of his account involves obtaining any sort of permission to leave the country.
16. Whilst I acknowledge that his account in various respects was not found to be credible by the FtJ, the issue of illegal exit does not appear to have been specifically challenged on behalf of the respondent at that hearing, and it was not suggested to me that it was.
17. This is not a matter that I have to be sure about, or even that it is established by the appellant on a balance of probabilities. It only has to be reasonably likely, and I am satisfied that it is.
18. The appellant's skeleton argument identifies the background evidence that is relied on. It is only necessary for me to summarise that evidence.
19. The Country Information and Guidance on Iran: Christians and Christian Converts, dated December 2015 at 4.1.1 is quoted, the effect of which is to state that religious freedom conditions continued to deteriorate in 2014, particularly for religious minorities. Sufi Muslims and dissenting Shia's faced harassment, arrests and imprisonment. The number of individuals from religious minorities who are in prison because of their beliefs has increased. The report goes on to state that there are systematic and ongoing egregious violations of religious freedom, including prolonged detention, torture and executions based primarily or entirely upon the person's religion.
20. The Iran Country of Origin Information report dated January 2013, in the appellant's bundle to the FtT, from 19.91 refers to the situation for Sufis. It states that:
"The various Sufi orders, including Nematollahi, Naqshbandi, Qaderi, Yazidi and others have been victims of repression, especially in recent years. The Nematollahi Gonabadi Order has recently been persecuted most severely."
21. It also states that the Nematollahi order is Iran's largest Sufi order, with reportedly more than 2 million members across the country, including in major cities such as Tehran and Isfahan. It refers to hundreds of Sufi Muslims, particularly from the Gonabadi order, having been detained over the last few years, sentencing many to imprisonment, fines and floggings. In September and October 2011 a member of the Gonabadi order was killed and several injured during a government crackdown in southwestern Iran. There is reference to eight Sufi dervishes from the Gonabadi order being re-arrested on charges of disrupting public order, charges for which they had previously received floggings and been imprisoned. Other repressive measures against the Gonabadi are referred to.
22. A report from the Immigration and Refugee Board of Canada dated September 2014 is relied on, reproduced in the appellant's bundle before the First-tier Tribunal from page A47. The appellant's skeleton argument does not refer to all relevant aspects of that report, but I note that there is evidence of discrimination in employment against the Gonabadi (2.2).
23. At A52 of the bundle, information from the UN Special Rapporteur is cited in the report with reference to arrests and questioning of members of the Gonabadi order since 2008 and that in May 2010, 24 were sentenced to prison terms and flogging for having participated in a demonstration in 2009 in the city of Gonabad. Ill-treatment and abuses of the human rights of members of the Gonabadi in detention are also referred to.
24. There is an article in the supplementary bundle entitled International Campaign for Human Rights in Iran dated 16 December 2016 which reports the arrest of five members of the Gonabadi order, having been summonsed for "objecting to the disparagement of their beliefs". It states that the Iranian regime views any alternative belief system, especially those seeking converts, as a threat to the prevailing Shia order and has imprisoned Gonabadi dervishes as part of an ongoing persecution campaign. The five were apparently arrested at an exhibition where films and videos disparaging their beliefs were shown, and they objected to insulting speeches by some young clerics. They were later charged, and their lawyer who administers the order's website was imprisoned between 2001 and 2005.
25. The report starting at page 13 which appears to be from the Austrian Red Cross, dated September 2015, repeats previous information, and quotes from a US State Department report of July 2014 to the effect that repression of Sufi communities continued with harassment and intimidation of prominent Sufi leaders. There is reference to the arrest in 2014 of 326 members of the order who were protesting outside a court in Tehran, and other references to protestors from the order being attacked or arrested.
26. My summary of the evidence relied on on behalf of the appellant does reveal repression, intimidation, harassment and discrimination of some members of the Gonabadi order. It reveals that if arrested they may be subjected to human rights violations.
27. However, whilst there is some merit in the submission made on behalf of the appellant to the effect that it is not only those in a leadership position who may be at risk, the evidence is a long way short of establishing that any member of the Gonabadi order is at risk of persecution or Article 3 ill-treatment on return.
28. I was not referred to any background evidence which indicates that a person in the position of the appellant, who has been found to be a "low level" member of the order, and whose account of adverse interest in him in the past has not been found to be credible, would be at risk.
29. I indicated to the parties that I would refer to the decision of the Upper Tribunal in AB and Others (internet activity – state of evidence) Iran [2015] UKUT 0257 (IAC). In that case there is reference to a “pinch point” whereby there would be questioning on return. At [9] of SSH and HR it was concluded that a person who returns to Iran on a laissez passer will be questioned. At [11] of the same decision, there is reference to AB and Others and to the pinch point. It was noted in SSH and HR that that aspect of the decision in AB and Others was in the context of people who had engaged in internet activity. It is not apparent that the Tribunal in SSH and HR had before it any evidence to contradict the conclusions of the Tribunal in AB and Others about the pinch point.
30. There was evidence before the Tribunal in HR and SSH from Dr Mohammad Kakhki, amongst other things in relation to questioning on return. His evidence is set out at Appendix 1 of the Tribunal’s decision. His evidence, recorded at [35] of that Appendix, is that a returnee who had left illegally and who had made an unsuccessful claim for asylum would face questioning not simply about the manner of their illegal exit but also about their failed asylum claim. Even without illegal exit, his evidence was that such an individual would face questioning in that respect. It appears not to have been disputed on behalf of the respondent in that appeal, judging by the submissions recorded at Appendix 2, but that there would be questioning about a person’s asylum claim.
31. I am satisfied therefore, that the appellant would face questioning on return, about his illegal exit and his claim for asylum. He can be expected to tell the truth which would involve his revealing his faith, but also, if asked, that he had made up parts of his claim for asylum in order to secure residence in the UK. That is in effect what the FtJ found.
32. The appellant is not, and never has been, a prominent adherent of his faith. He has never been the subject of adverse attention by the authorities on account of his faith. He suffered "some discrimination" during his military service but his account to the FtJ was that this was "at a low level".
33. It may well be that on return and during questioning the appellant would be viewed with disdain by those questioning him. However, I am not satisfied that the evidence establishes a reasonable likelihood that he would be subjected to persecution or Article 3 ill-treatment on return, either on account of having left Iran illegally, or on account of his religion, or on the basis of a combination of the two.
Decision
34. The decision of the First-tier Tribunal involved the making of an error on a point of law. Its decision having been set aside, I re-make the decision by dismissing the appeal on asylum, humanitarian protection and human rights grounds.

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.

Upper Tribunal Judge Kopieczek 13/03/17