Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11799/2015

THE IMMIGRATION ACTS

Heard at Stoke
Decision & Reasons Promulgated
On 9 January 2017
On 17 March 2017

Before

UPPER TRIBUNAL JUDGE HANSON

Between

DHKZ
(anonymity order in force)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr O’Ryan instructed by Barnes Harrild & Dyer Solicitors
For the Respondent: Mr C Bates Senior Home Office Presenting Officer

DECISION AND REASONS

1. In a decision dated 12 October 2016 the Upper Tribunal found that a judge of the First-tier Tribunal had materially erred in law in allowing the appellant’s appeal for the reasons stated. That decision was set aside and the case listed for a further hearing on 14th November 2016. The hearing of that date could not proceed as a result of the appellant attending without representation, resulting in the matter being adjourned to 9 January 2017 at which time the appellant both attended and was represented.
2. The appellant entered the United Kingdom on 5 August 2008 claiming asylum two days later. The application was refused and a subsequent appeal dismissed on 27 October 2008. Judicial review proceedings were issued on 16 July 2014 challenging the respondent’s refusal to treat further submissions as a fresh claim. Those proceedings were compromised by way of a consent order sealed on 7 July 2015 in which the respondent agreed to reconsider the further submissions. These were rejected as not entitling the appellant to a grant of international protection on 8 August 2015, which is the decision under appeal.
3. It is not disputed that the appellant is a citizen of Iran of Kurdish ethnicity. He claims that he will face ill-treatment on return as a result of his ethnic identity, an outstanding arrest warrant, his illegal exit, and his return as a failed asylum seeker from the UK.
4. The appellants profile is of a person for whom no evidence was provided of KDPI activities in Iran or in the United Kingdom that had not been provided previously, and who had not provided a credible account of any activities being known to the authorities in Iran as having been conducted there or in United Kingdom. It is also the case that the appellants claim has been previously rejected including the claim to be subject to an arrest warrant on return to Iran. I find the appellant is no more than a failed asylum seeker.

Discussion

5. The First-tier Judge was found to have materially erred in law as a result of her failure to consider the country guidance case of SSH and HR (illegal exit, failed asylum seeker) Iran CG [2016] UKUT 00398 (IAC).
6. A key question posed by Mr O’Ryan during the course of his submissions was whether the Tribunal in SSH were providing country guidance in relation to the risk, or lack thereof, to Iranians of Kurdish ethnicity.
7. The answer to this question is to be found within the body of SSH where the panel record:
33. We summarise our conclusions on the country guidance issues in these appeals as follows:
(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.

8. The head note to the decision reflects the above paragraph. It is arguable that the extent of the country guidance provided by the Upper Tribunal in SSH is limited to those issues set out in paragraph 33 of that decision although that is not to say that the Upper Tribunal did not consider the position of Iranian Kurds.
9. Both appellants in SSH are Iranians of Kurdish ethnicity and it is possible to argue that notwithstanding the absence of a specific reference to Iranian Kurds in the above paragraph that the panel in SSH were providing guidance on the risk to all Iranians males, with nothing having been presented to them to substantiate a claim for an individual risk solely based on Kurdish ethnicity. The panel find, at paragraph 34, when considering the issue of those of Kurdish ethnicity:
34. 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. Accordingly we conclude that it has not been shown that a person in the position of these appellants faces a real risk on return to Iran either on the basis of what would happen to them when questioned at the airport or subsequently if they were convicted of an offence of illegal exit. With regard to HR specifically, it does not appear to be disputed that he is Kurdish and that he is undocumented: hence we see no reason for remittal. Prosecution for illegal exit is an outcome not generally experienced by such returnees, and where it does occur, the most likely sentence in relation to the illegal exit charge would be a fine. It has not been shown that there would be a real risk of prosecution under Article 500 for propaganda against the state on the basis of having made an asylum claim which was found to be false. Accordingly these appeals are dismissed.

10. The expert before the country guidance panel was a Dr Kakhki, who had given evidence previously in the country guidance case of SB (risk on return – illegal exit) Iran CG [2009] UKAIT 00053. The experts evidence is summed up in an annex to the judgement and, in relation to Iranians Kurds, is recorded in the following terms:

Treatment of Kurds
1. Section three of Dr Kakhki’s report deals with the general human rights of Kurds within Iran. This was not the subject of any oral evidence before the Tribunal and 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.
2. In summary of Dr Kakhki’s evidence on this aspect, he points to the societal disadvantage of the Kurdish community in Iran and the discriminatory treatment of them by the authorities. That is not challenged by the Respondent whose position is however that this does not amount to persecution.
3. The examples contained in Dr Kakhki’s report in relation to imprisonment, torture and execution relate to individuals who are reported to be political or civil activists or who have been convicted of other offences including national security offences. The inference which Dr Kakhki seeks to draw from those is that being a Kurd does not in itself result in prosecution but when combined with other criminal suspicions, persecution “is likely to surface”.

11. The appellant seeks to rely upon a different expert opinion, that of Dr Joffe. Mr Bates in his submissions accepted that Dr Joffe had provided additional evidence in which he commented upon the general situation in that area of the Middle East.
12. Dr Joffe has produced several reports dated 30 September 2012, 15 October 2014, 16 November 2014, 3 March 2016 and 28 August 2016. The early report sets out the background relating to the position of Kurds in Iran and the discrimination that they can face at the hands of the Iranian authorities. It is Dr Joffe’s opinion that such discrimination is sufficient to amount to persecution as that term is recognised in the Refugee Convention or amounts to a denial of basic rights sufficient to breach Article 3 of the European Charter on Human Rights. The reports refer to renewed clashes between the Iranian State and Kurdish political groups in 2013 and the mobilisation of Kurdish groups to fight ISIS in Iraq. Dr Joffe notes the increasing nervousness of the Iranian authorities regarding Kurdish activism over what was seen an impending ISIS threat and clashes between KDPI and Iranians forces in 2013 for the first time since 1997.
13. In the November 2014 report Dr Joffe refers again to the increasing tension, increase of execution rates in Iran, the risk of a wave of religious repression in Kurdistan and that the PJAK enjoyed a surge in public support in Kurdistan. Increased sensitivity by the Iranian authorities in relation to its reputation overseas is stated by Dr Joffe to enhance the risk for returnees.
14. In March 2016 Dr Joffe records tensions in Kurdistan continuing to run high with a disproportionate targeting of minority groups and examples of arbitrary arrest. Amnesty international record systematic discrimination and Dr Joffe provides examples of violence in Kurdistan in May 2015 and the increased possession of arms by the PJAK and increasing military activities including in June 2014 the death of 33 Iranians personnel, which is identified as a consequent likely increase risk to returnees.
15. In the August 2016 report Dr Joffe records constant clashes between Kurdish groups and Iranian authorities, claims a worsening security situation inside Kurdistan in April 2016 when KDPI resumed military activities against the Iranian regime with examples of armed clashes in 2016 and the resultant increase in executions of Kurds arrested by the authorities together with growing concerns over the military Sunni groups in Kurdistan and neighbouring regions.
16. It is Dr Joffe’s opinion that the Tribunal in SSH did not consider the deteriorating military and security situation in Iran overall and its likely consequence on Kurdish returnees [report 28 August 2016, para 23].
17. It is not disputed that there has been a deterioration in the general security situation in neighbouring Iraq following the activities of ISIS and the general civil war in Syria. It is not irrational to conclude that if the Iranian government believes that groups associated with such conflict pose a threat to their national interests they will take measures to suppress any risk which, based on previous practices, includes acts of extreme violence, unlawful detention without trial, and extrajudicial killings.
18. It is not disputed that the Kurdish militia in Iraq and Syria have demonstrated a propensity to engage in major armed conflict and to successfully defeat well-armed opposition groups. It is not disputed that as a result of the activities of the Turkish government the ceasefire between the PKK and the Turkish authorities appears to have broken down, heightening tension in the region.
19. Notwithstanding Dr Joffe identifying potential points of risk and flashpoints Mr O’Ryan accepted in his submissions that he was unable to draw the tribunal’s attention to any examples of arrests or ill-treatment as a result of a person’s ethnicity having occurred on return to Iran.
20. It is accepted that the number of returnees is low but it is reasonable to assume that if there was evidence of ill-treatment and arrest based upon the ethnic identity of a returnee, that news of this would have been available to the country expert. The tribunal in SSH do not accept that the situation for all returning Iranian Kurds is without difficulties and do comment upon those who may face a credible real risk on return in paragraph 34, which is set out above.
21. Even if Dr Joffe’s analysis of the situation is, in his opinion, more detailed than that undertaken by the tribunal in SSH and the expert appointed to assist the tribunal, and if the tribunal in SSH did not speak of what was happening in the wider world, this does not mean that the observations made by that tribunal in relation to the risk faced by Iranians Kurds cannot be followed. In all cases the burden of proving an entitlement to international protection lies upon the person assessing the same. Whilst it is accepted that individuals who have come to the adverse attention of Iranian authorities and who are deemed by such authorities to be a threat to their national interests are likely to face a real risk of ill-treatment sufficient to warrant a grant of international protection, the evidence made available does not support a finding that Iranians Kurds per se fall within such a social group.
22. I find, notwithstanding the detailed evidence that has been provided, that the appellant has not discharged the burden of proof upon him to the required lower standard applicable to protection appeals of this nature to show he is entitled to be recognised as a refugee, a person entitled to a grant of Humanitarian protection or to any other form of leave. The appellant shall be returned as no more than a failed Iranian Kurdish asylum seeker with no adverse profile known to Iranian authorities and as such has not established any credible real risk upon return. The finding in SSH that “Accordingly we conclude that it has not been shown that a person in the position of these appellants faces a real risk on return to Iran either on the basis of what would happen to them when questioned at the airport or subsequently if they were convicted of an offence of illegal exit” is equally applicable to this appellant.

Decision

23. The First-tier Tribunal Judge has been found to have materially erred in law and I have set aside the decision of the original Judge. I remake the decision as follows. This appeal is dismissed.

Anonymity.

24. The First-tier Tribunal made an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

I make such an order pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

Signed……………………………………………….
Upper Tribunal Judge Hanson

Dated the 14th of March 2017