Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11883/2015

THE IMMIGRATION ACTS

Heard at: Field House
Decision & Reasons Promulgated
On: 1 June 2016
On: 14 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE CHANA

Between

MR MANSOOR KARBALAIE
(anonymity direction not made)
Appellant
and

THE SECETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Bassirl-Dezfouli of Counsel
For the Respondent: Mr K Norton, Senior Presenting Officer

DECSION AND REASONS
1. The appellant is a citizen of Iran born on 13 June 1970. He appealed against the decision of the respondent dated 14 August 2015 to refuse to grant him asylum and humanitarian protection in the United Kingdom. First-tier Tribunal Judge Martins dismissed the appellant’s appeal on 31 March 2015.
2. Permission to appeal granted by Designated Judge of the First-tier Tribunal found that it is of concern is that the Judges findings and conclusions only started at the foot of page 15 of the decision and are relatively brief which may demonstrate that the Judge did not consider the appellant’s claim that he made his political opinions known via the Internet.
3. Thus, the appeal came before me.
The First-tier Tribunal’s findings
4. The First-tier Tribunal Judge made the following findings in dismissing the appellant’s appeal which I set out in summary.
5. The appellant’s claim is that he was a political and human rights activist from 2005 and used a false name for his political activities. The appellant went to Finland for political activities on 14 February 2008. He was seriously threatened by an agent of the Iranian government for many years. The appellant was threatened that his family will be killed in Iran. On 27 August 2014, the threats were acted upon and a sham car accident was orchestrated where his father was killed. The appellant was threatened that if he did not return to Iran the rest of his family would be killed. The appellant returned to Iran on 19 August 2014 and was arrested on arrival on 20 August 2014 and detained for 35 days. The appellant was released on bail on 24 September 2014 to attend the 40th day of his father’s death as the family was gathering for his father’s remembrance. The appellant managed to leave Iran with the help of a friend.
6. The appellant’s witness confirms that the appellant is involved in the National Patriotic Organisation of Iran and who gave general details as to the harassment by members of the Iranian authorities. The witness however could not confirm or corroborate the appellant’s personal account. The appellant was in Finland for some years pursuing political activities and had no difficulties, until the Iranian agent started to threaten him and contacting his brother in Iran to harass the appellant’s family there.
7. There is no documentary evidence in terms of translations from the conclusions of the court in Finland that the agent was in fact found to be at fault in terms of harassing and threatening the appellant and his wife and had to pay compensation as claimed by the appellant the appellant’s account of whether or not he divorced his first wife and whether his marriage in fenland was one to facilitate his remaining in that country and/or whether it was a genuine marriage is very confused but this does not enhance his credibility, such that without independent documentary evidence, the Judge could not be satisfied that the appellant’s account or his experiences and the reason for them in Finland and in Iran, are as he recounts.
8. It is clear from the documentary evidence that the appellant had been refused residence in Finland as he was no longer with his wife and his father died in Iran. If indeed the appellant was arrested harassed and detained the motivation for this was because of his marriage and not on account of his political activities but rather a personal vendetta against him. This view is enhanced by the fact that if the appellant were of interest to the Iranian government on account of his political activities, it is not credible that on having been arrested on his arrival and detained that he would be granted bail in order to attend his father’s 40th day celebrations and that his father’s uncle but a surety by pledging his house and the appellant word not no to this day whether his father’s uncle’s property was confiscated. This evidence does not have a ring of truth about it and that the appellant’s claim to his political activities have been woven into a story of personal difficulties in order to found an asylum claim in the United Kingdom.
9. The appellant managed to live in Iran for a substantial period of time without any difficulties before leaving the country. The appellant does not have a history with the Iranian authorities which would be a factor adding to the level of difficulty he is likely to face on his return to Iran.
10. Given these findings, the appellant is not at risk of treatment in breach of his rights under Article 2 or 3 of the ECHR. The Judge dismissed the appellant’s appeal.
Grounds of appeal
11. The grounds of appeal state the following which I summarise. The Judge has failed to consider the appellant’s appeal in accordance with the principles as set out in BA (demonstrators in Britain – risk on return) Iran CG [’s 2011] UKUT 36 (IAC) which deals with the activities of demonstrators in the United Kingdom and the principles must equally apply to those who make their opinions known via the Internet which was the appellant’s case. The appellant’s bundle of documents contains detailed evidence of the appellant’s political activities, in Finland and the United Kingdom. The Judge did not make any finding as to whether the appellant had engaged in political activities in the United Kingdom which would put him at risk in Iran and there is no requirement that the appellant was known to be politically active in Iran for him to be entitled to protection in the United Kingdom.
Findings as to whether there is an error of law
12. The Judge in an extensive judgement did not find the appellant’s claim credible that he would be at risk on his return to Iran because of his activities in the past while he was in Iran and Finland. The Judge’s reasoning in not finding the appellant credible are unassailable. His findings that the appellant will not be at risk of harm on his return to Iran because of his claimed political activities in Iran and Finland, cannot be said to have any error in law, material or otherwise. The Judge was entitled to find on the totality of the evidence that the appellant does not merit recognition as a refugee or that he is entitled to humanitarian protection in respect of the events which he claims happened to him in the past.
13. The Judge fell into material error when he stated in his decision that the appellant “does not have a history with the Iranian authorities which would be a factor adding to the level of difficulty he is likely to face on his return to Iran”. The Judge there by failed to consider and make findings on the second limb of the appellant’s claim that he has participated in political activities in the United Kingdom which would put him at risk on his return to Iran. There is no requirement that the appellant was known to be politically active in Iran before he left the country for him to be at risk from the Iranians authorities on his return.
14. The Judge did not consider the case of SB which states that events in Iran following the 12 June 2009 presidential elections have led to a government crackdown on persons seem to be opposed to the Iranian regime and the Iranian judiciary has become even less independent. The Judge did not consider that persons were likely to be perceived by the authorities in Iran is being actively associated with protests the June 12 election results may face a real risk of persecution or ill-treatment.
15. Even in circumstances where the appellant has created an opportunistic refugee sur place claim, the appellant’s Refugee Convention or humanitarian protection claim will nonetheless succeed if he can establish in accordance with the applicable burden of proof that there is a real risk of him suffering persecution for a Convention reason on return. In Danian [2000] IAR 96 the Court of Appeal held that even where a refugee sur place has acted in bad faith in the United Kingdom with the purpose of creating an asylum claim where otherwise he would have had none, the Refugee Convention will nonetheless apply provided that he has a genuine and well-founded fear of persecution for a Convention reason and there is a real risk that such persecution may take place.
16. In Danian it was said that this should not be understood ‘as giving any kind of green light to bogus asylum seekers’ and that in such cases where an applicant has acted in bad faith, his credibility is likely to be low and his claim must be rigorously scrutinised, but that nevertheless, the Refugee Convention will apply if ‘it should turn out that he does indeed qualify for protection against refoulement at the time his application is considered’. (See AA and LK v Secretary of State for the Home Department [2006] EWCA Civ 401 (‘AA & LK’), paras 96-98; ME (Failed Asylum Seeker, Danian) Sudan CG [2002] UKIAT 00997 (‘ME’), paras 11-12, 17).
17. The case of of YB (Eritrea) [2008] EWCA Civ 360 sets out as to the correct approach to follow in sur place refugee claims.
18. Therefore, I find that the judge fell into material area by his failure to consider and make findings on the appellant’s sur place refugee claim.
19. I direct that the appeal be remitted to the First-tier Tribunal for findings of fact to be made. The questions for the First-tier Tribunal to be decided are first, whether the appellant’s activities either in the United Kingdom and Finland would cause him to be perceived by the Iranian authorities to be a political activist opposed to the Iranian regime and second, whether there is a real risk of the appellant suffering relevant harm on return as a result of his claimed political activism in Finland and the United Kingdom.
20. For the avoidance of any doubt, The Judges findings in respect of the appellant’s claim for asylum and humanitarian protection insofar as it relates to the past shall stand as they are not vitiated by any material error. The First-tier Tribunal will re-make the decision in relation to the sur- plus claim on the Refugee Convention grounds. The Judge’s credibility findings shall also stand.

Decision
The appeal is remitted to the first-tier Tribunal.
I make no anonymity order
I make no fee order

Signed by

A Deputy Judge of the upper Tribunal Dated 13th day of March 2017
Mrs S Chana