Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11660/2015

THE IMMIGRATION ACTS

Heard at Manchester Piccadilly
Decision & Reasons Promulgated
On 3 January 2017
On 10 January 2017

Before
DEPUTY UPPER TRIBUNAL JUDGE BIRRELL

Between
MOTJABA AHMADI
(ANONYMITY DIRECTION NOT MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms E Mottershaw counsel instructed by Barnes Harrild & Dyer
For the Respondent: Mr Bates
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. The Appellant was born on 1 April 1985 and is a national of Iran.
3. In order to avoid confusion, the parties are referred to as they were in the First-tier Tribunal.
4. This was an appeal by the Appellant against the decision of First-tier Tribunal Judge Hindson promulgated on 23 March 2016 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.
5. After an error of law hearing on 31 October 2016 I set that decision aside in so far it related to the Appellants risk on return as a Kurd as the reference in paragraph 22 was inadequate as the Judge failed to make any findings in respect of the expert report of Dr Joffe that was before her. I preserved all other findings and that included the Judges finding that the Appellant had not exited Iran illegally or that he exited without a passport. The case was adjourned on the application of Ms Mair in order for the Appellant to obtain an updated report from Dr Joffe which I directed should be served on all parties 5 days before the resumed hearing. A report dated 26 August 2016 was served at this hearing. Mr Bates did not object to the report not having been served in accordance with the directions. Given its importance to the central issue in this case I allowed the report to be relied on.
6. Ms Mottershaw indicated that she was content to proceed by way of submissions only.
7. At the hearing I heard submissions from Mr Bates on behalf of the Respondent that :
8. He relied on SSH and HR (illegal exit: failed asylum seeker) Iran CG [2016] UKUT 00308 (IAC). He noted that although it would be suggested by Ms Mottershaw that there was no proper assessment of the risk on return as a Kurd in the new CG case that both Appellants in that case were Kurds.
9. He argued that the CG case took into account reports from an expert, Dr Kakhki and he did not suggest that Kurdish ethnicity without more put an Appellant at risk. While he accepted that there was harassment and discrimination this was not at the threshold of persecution. It was only Kurdish ethnicity combined with a background of interest to the authorities that created such a risk.
10. The report of Dr Joffe does not address the key problem that the panel identified with Dr Kakhki evidence: they found that if being a failed asylum seeker alone led to persecution there would be evidence of this in the public domain given the number of failed asylum seekers returned by the UK and other countries. Some of those returned would have been Kurds. The headnote therefore stated that there was no evidence to support the assertion made by Dr Kakhki for risk on return as a failed asylum seeker or one who has left illegally.
11. He argued that similarly Dr Joffe had provided no evidence to support his assertion that there was a risk on return on the basis of ethnicity alone.
12. The case of SSH addressed the risk on return for Iranian males, and in the case the Appellants were Kurdish Iranians, and found that there was no risk on return if there had been no previous adverse interest.
13. While Dr Joffes report attempted to go behind the report of Dr Kakhki there was no evidential basis for doing so and his conclusions were based on assumptions, on the fact that prosecution of Kurds was increasing. Dr Joffes report was generic and did not overcome the issues taken by the panel in SSH with Dr Kakhkis report.
14. The CG case is good law in demonstrating that there was no risk to an Iranian on return unless there was pre existing interest by the authorities.
15. On behalf of the Respondent Ms Mottershaw submitted that:
16. She relied on the reports of Dr E Joffe dated October 15 2014, March 2 2016 and August 26 2016.
17. The Appellant would return to Iran as a failed asylum seeking Kurd.
18. She summarised her two arguments were that the Appellants case could be distinguished from the CG case and that the Appellant faced a risk based on the objective evidence before the First-tier Tribunal.
19. She argued that headnote by identified the three triggers of risk: (a) previous adverse interest, (b) illegal exit and (c) being a failed asylum seeker. At paragraph 23 it found that (b) and (c) alone did not create a risk only if combined with (a).
20. In reaching their conclusion the panel did not have the evidence of Dr Joffe before them which included the more up to date report.
21. Paragraph 34 when addressing the risk to Kurds does not conclude there was no risk but simply states that there was no evidence to show such a risk.
22. She suggested that the placing of paragraph 34 was significant, it was a postscript, was obiter. It nevertheless stated that being a Kurd was relevant to how they would be treated on return.
23. Ethnicity was not a substantial feature of the reasoning in the CG case.
24. In relation to whether the evidence now showed that being a Kurd was sufficient to put the Appellant at risk without more she submitted that there were 4 factors:
(a) The overall background of discrimination and targeting
(b) Recent events referred to by Dr Joffe
(c) The risk generally arising out of this background.
(d) The specific risk on arrival.
25. She referred to the brutal human rights record generally and specifically against Kurds. The August 2016 report of Dr Joffe sets out findings against this background and concluded that all Kurds were at risk on return. Dr Joffe was widely recognised as a leading expert on Kurds but his evidence had not been relied on in SSH
26. Recent events demonstrated that the Iranian regime responded to problems with repression.
27. Dr Joffe addresses the risk on arrival and the particular risk as a returning failed asylum seeker who is a Kurd.at paragraph 30.
28. Ms Mottershaw also suggested that the level of the Appellants risk would be enhanced by the length of time that the Appellant had spent in the UK although she was unable to draw my attention to an evidential basis for this argument.
29. In reply Mr Bates on behalf of the Appellant submitted:
30. Paragraph 34 of SSH was not obiter: the panel at paragraph 33 applied the facts of the case to their findings and set out their conclusions. The Appellants in this case were Kurds.
31. In relation to the August report of Dr Joffe he argued that if the situation had deteriorated there would be examples of such persecution where there had not been previously. No such case studies were relied on. Dr Joffee did not address the evidential lacuna found by the panel in SSH.
Legal Framework
32. In relation to the approach I should take to Country Guidance cases I remind myself of TM, KM and LZ (Zimbabwe) (2010) EWCA Civ 916 where the Court of Appeal said that the Tribunal "must treat as binding any country guidance authority relevant to the issues in dispute unless there is good reason for not doing so, such as fresh evidence which casts doubt upon its conclusions." In SG (Iraq) v SSHD; OR (Iraq) v SSHD [2012] EWCA Civ 940 the Court of Appeal said that the CG procedure was aimed at arriving at a reliable and accurate determination and it was for those reasons, as well as the desirability of consistency, that decision-makers and tribunal judges were required to take country guidance determinations into account, and to follow them unless very strong grounds supported by cogent evidence, were adduced justifying their not doing so (paras 43 - 50).
33. The headnote of the case of SSH and HR (illegal exit: failed asylum seeker) Iran CG [2016] UKUT 00308 (IAC) was referred to by bothparties:
(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."
Findings
34. The starting point for my assessment of the Appellants risk on return are the preserved findings of the First-tier Judge who heard the Appellants appeal against the refusal of asylum. The Judge found no basis to go behind the findings of a previous Judge who heard the Appellants appeal on 8 March 2010. He rejected the Appellants claim to have fled Iran after attending a pro-Kurdish demonstration. He did not accept that the Appellant had left Iran illegally or without a passport.
35. Ms Mottershaw argues that the most recent CG case on Iran gave country guidance on the issue of risk on return to Iran for a person who left that country illegally, is a failed asylum seeker and is undocumented and did not address the issue of risk on the basis of Kurdish ethnicity alone and therefore I am not bound by it. Nevertheless I note that the headnote summary at (b) refers to there being no risk to an ''Iranian male failed asylum seeker in respect of whom there was no previous adverse interest. The Appellant is an Iranian male and there was no previous adverse interest in him.
36. I accept that none of those counsel representing the Kurdish Appellants in SSH sought to argue that their ethnicity alone put them at risk on return but I am also satisfied that this was an acknowledgement that the background material and indeed the report of Dr Kakhi could not have sustained such an argument. I nevertheless note that the Tribunal in their summary of Dr Kahkhis report at paragraph 45 of Appendix 1, while acknowledging that "the position of the Appellants as ethnic Kurds is not the central focus of the Appellants' case. They rely on it as an additional risk factor." (my bold) This summary had been reflected in paragraph 34 of the main decision:
"It was not suggested to us that an individual faces risk on return on the sole basis of being Kurdish. It was however agreed that being Kurdish was relevant to how a returnee would be treated by the authorities. For example, the Operational Guidance Note refers at 3.12.14 to the government disproportionally targeting minority groups, including Kurds, for arbitrary arrest, prolonged detention and physical abuse. No examples however have been provided of ill-treatment of returnees with no relevant adverse interest factors other than their Kurdish ethnicity, and we conclude that the evidence does not show risk of ill-treatment to such returnees, though we accept that it might be an exacerbating factor for a returnee otherwise of interest."
37. Therefore I am satisfied that it cannot be argued that the court did not address the issue of risk on the basis of ethnicity simply that in this case it was acknowledged that it was an additional risk factor rather than a basis for a claim.
38. I take into account all of the reports of Dr Joffe, all generic but it is the report of August 2016 that Ms Mottershaw focused on as it relies on the previous reports and post-dated and purported to address the conclusions reached in SSH and disagree with them. I have accepted that on the basis of the material before them the Court in SSH found no risk on return on the basis of Kurdish ethnicity alone at paragraph 34. I note that Dr Joffes reports are all generic and they do not address the facts of this Appellants case which must limit to some degree the weight I can attach to his findings. In setting out what he has been asked to consider it is clear that he has not been asked to address the risk on return of someone returning with a passport who has not exited illegally and had no political profile in Iran or in the UK as a Kurdish activist or for any other reason. I note that at paragraph (5) of his report he states the issues that he intends to address and his focus is on 'Kurds who have returned to Iran, having left illegally and having no documents to establish their nationality' and this is inevitably the focus of much of the report. Again this is not the factual basis of this Appellants case and must limit the weight I can attach to the report.
39. The court in SSH found at paragraph 29 that in relation to Dr Kahkhi's claim that being a failed asylum seeker who had left Iran illegally was enough to create a risk was that they were not satisfied that there was sufficient evidence based on documented case studies of this occurring inspite of the number of returns to Iran.
40. While Dr Joffe disagrees with this conclusion on the basis of the deterioration in the treatment of Kurds he too does not adduce in his report any examples of such treatment of a returning failed Kurdish asylum seeker and Ms Mottershaw was unable to direct me to any such evidence in the bundle. This was the lacuna referred to by the court in SSH that led to them rejecting Dr Kahkhi's conclusions and it seems to me Dr Joffe is in the same position in relation to failed asylum seekers, Kurds and undocumented returnees. I remind myself that to go behind a CG case I require strong grounds supported by cogent evidence. I am not satisfied that such evidence exists.
41. I am not satisfied that the Appellant has shown that as someone who has no political profile in Iran or in the UK and who did not leave illegally or without a passport could be at risk if Kurds who were undocumented, failed asylum seekers were found in SSH not to be at risk.
DECISION
42. The appeal is dismissed.

Signed Date 8.1.2017

Deputy Upper Tribunal Judge Birrell