Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11446/2015

THE IMMIGRATION ACTS

Heard at North Shields
Decision and Reasons Promulgated
On 26 September 2016
On 27 September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE JM HOLMES

Between

N. H.
(ANONYMITY DIRECTION MADE)
Appellant
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Cleghorn. Counsel instructed by Barnes Harrild & Dyer Solicitors
For the Respondent: Mr Diwnycz, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant entered the United Kingdom illegally and claimed asylum on 1 July 2011. That application was refused on 25 July 2011, and a decision to remove him was made in consequence.
2. The Appellant's appeal to the Tribunal against those immigration decisions was first heard and dismissed on 22 September 2011 by decision of Judge Hands. The Appellant's appeal rights were exhausted on 17 October 2011.
3. The Appellant has since made a series of further submissions, which were rejected. On 6 August 2015 a further decision was made to refuse leave to remain in the UK and to remove him. A s120 notice was served with that decision, and the Appellant's appeal against that decision was then heard, and dismissed by decision of First Tier Tribunal Judge Bircher promulgated on 25 February 2016.
4. The Appellant's application to the First Tier Tribunal for permission to appeal was refused on 22 March 2016 by Judge Chambers. The Appellant's renewed application to the Upper Tribunal was granted, on only one ground, by Judge Kopieczek on 26 May 2016. He was satisfied that it was arguable that the Judge's decision did not engage adequately with the expert evidence of Dr Joffe in terms of the assessment of the risk to the Appellant upon return as a Kurd and as a failed asylum seeker.
5. Thus the matter comes before me.

Error of Law?
6. The central dispute before the Tribunal in 2011 was over the Appellant's true nationality. The Respondent did not accept that he was Iranian, because as an adult male who claimed to have grown to adulthood within Iran, he did not demonstrate the level of knowledge of that country that was expected of him. Whilst Judge Hands rejected as fabricated aspects of his evidence (his claimed religion and his claim that his father had killed a Pasdaran officer), she did accept that he was an Iranian citizen, who was ethnically Kurdish.
7. In the course of her decision Judge Hands recorded that the Appellant did not claim to have experienced any persecution within Iran on account of his Kurdish ethnicity. She noted the Appellant's claim to have lived peacefully within his village with little contact with the external world, and she was therefore satisfied that upon return he would not face a real risk of persecution solely because of his ethnicity [25].
8. The Appellant's case that he faced persecution as a result of his religion, and as a result of his father having killed an officer of the Pasdaran, was rejected as untrue by Judge Bircher, who correctly followed the authority of Devaseelan [2002] UKIAT 702.
9. At the hearing before Judge Bircher the Appellant accepted in evidence that he had not engaged in any political activity against the regime either within Iran, or, since he had left. He accepted that he did not identify any problems arising as a result of his Kurdish ethnicity when he first claimed asylum, or, before Judge Hands [21]. His case was however that upon return he would be (correctly) perceived to be an ethnic Kurd who had left Iran illegally, and a failed asylum seeker. (Although this was not raised expressly, it was implicit that he was also without identity documents). The Appellant relied upon the expert evidence of Dr Khaki and Dr Joffe, the latter consisting of a report from Dr Joffe dated 30 September 2012 and a supplemental letter dated 16 November 2014.
10. Ms Cleghorn accepted before me that the Appellant had only the benefit of a limited grant of permission to appeal. She also accepted that Judge Bircher did deal with the expert evidence of Dr Joffe in the course of her decision [3, 31-35]. Her argument was however that the evidence of Dr Joffe was inadequately analysed and rehearsed within the decision, and, that no adequate reasons had been advanced for why the Judge had given no weight to it.
11. There is, as Mr Diwnycz pointed out a very simple riposte to that argument. It is inappropriate to suggest that Judge Bircher gave no weight to Dr Joffe's evidence, when she made no suggestion that this was her approach to it. Nor could the Judge be said to have overlooked Dr Joffe's evidence given her references to it. She was not required to quote at length from Dr Joffe's evidence. Nor was she required to treat it as conclusive, but rather she was obliged to consider it within both the context of the history of country guidance decisions issued by the Upper Tribunal, and, the rather more recent January 2016 County Information report "Illegal Exit" v3.0. In my judgement that is precisely what Judge Bircher did.
12. The grant of permission to appeal pre-dated the promulgation by the Upper Tribunal of the decision in SSH & HR (illegal exit: failed asylum seeker) Iran CG [2016] UKUT 308. Indeed I rather doubt that permission would have been granted in this appeal had the application for permission been considered in the light of SSH, which did not depart from the guidance to be found in the earlier decision of SB (risk on return - illegal exit) Iran CG [2009] UKAIT 53.
13. Although Ms Cleghorn argued that the decision in SSH did not deal with the position upon return of those perceived to ethnically Kurdish failed asylum seekers, I am satisfied that her approach to that decision did it a dis-service. Her arguments ignored the fact that SSH was ethnically Kurdish and had argued that upon return as an undocumented failed asylum seeker who would be perceived to have left illegally he faced a real risk of persecution. His appeal was dismissed after the Upper Tribunal heard evidence from Dr Khaki. The Upper Tribunal were not satisfied that there had been a change of any significance since the assessment of evidence that was conducted in the course of the decision in SB [32] upon the manner in which the Iranian authorities would react to those returned in such circumstances. Moreover it was not suggested by Dr Khaki that an individual faced a risk upon return on the sole basis of his Kurdish ethnicity, and it was concluded that there was no risk of ill treatment of returnees with no relevant adverse risk factors other than their ethnicity. [34]. That is precisely the Appellant's position, as it was the position of both SSH and HR. Since they faced no real risk of harm either when questioned at the airport, or subsequently if convicted of an offence of illegal exit, then neither would he. Prosecution for illegal exit is not generally instigated for returnees, and when it does occur, the most likely sentence is a fine. There is no real risk of prosecution for propaganda against the state, arising out of having made a false asylum claim.
14. In the circumstances the Judge did not make any material error of law in his decision to dismiss the appeal on all grounds. The Appellant's appeal is dismissed.

DECISION
The Decision of the First Tier Tribunal which was promulgated on 25 February 2016 did not involve the making of an error of law in the decision to decision to dismiss the appeal that requires that decision to be set aside and remade. That decision is accordingly confirmed.

Deputy Upper Tribunal Judge JM Holmes
Dated 26 September 2016

Direction regarding anonymity - Rule 14 Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until the Tribunal directs otherwise the Appellant is granted anonymity throughout these proceedings. No report of these proceedings shall directly or indirectly identify him. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to proceedings being brought for contempt of court.

Signed

Deputy Upper Tribunal Judge JM Holmes
Dated 26 September 2016