Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/12488/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 12 January 2017
On 24 January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE SHAERF

Between

Md. mohammadi aghdam
(anonymity direction not made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr A de Ruano of AD Ruano Ltd
For the Respondent: Mr S Whitwell of the Specialist Appeals Team

DECISION AND REASONS

The Appellant
1. The Appellant is a national of Iran born on 21 September 1986. He states that on 23 June 2011 he arrived in the United Kingdom. On that date he claimed asylum because he feared persecution on return to Iran because he had been discovered in a relationship with a married woman. Subsequent to arrival in the United Kingdom the Appellant claimed he had forsaken Islam and become an atheist and that on return he will additionally face persecution because of his renunciation of Islam which has been publicly recorded on a website and in digital social media.
2. He is single and has no dependants. At interview he said his mother, an older brother and a married sister remained in Iran. He also said that he was a draft evader.
3. The Appellant's claim originally was based on a claim that he had been discovered to have had sex with a married woman and to have been discovered and reported to the authorities who subsequently raided his home and his business premises. Subsequently those aspects of the claim were not pursued and a revised claim based entirely on his renunciation of Islam and that the Iranian authorities will be able to identify him as an apostate from references to him and the photograph of him on the website of the Council of Ex-Muslims of Britain (CEMB) and his use of digital social media.
The First-tier Tribunal Proceedings
4. The Appellant's appeal against refusal of the original decision based on his claim to have had sex with a married woman was dismissed on all grounds by a determination of Immigration Judge Williams promulgated on 1 September 2011. By a determination sent to the Respondent on 23 April 2012 Deputy Upper Tribunal Judge Alis dismissed the Appellant's appeal and upheld the decision of Judge Williams.
5. The Appellant then made a further claim for asylum which now included a new claim based on his renunciation of Islam which the Respondent refused on all grounds for reasons given in a letter of 14 September 2015. The appeal was heard by Judge of the First-tier Tribunal J McIntosh to whom the Appellant admitted being a draft evader: see p.4 of the record of proceedings. She went on to dismiss the appeal on all grounds in a decision promulgated on 9 February 2016. That decision was set aside by a decision of Deputy Upper Tribunal Judge McGinty promulgated on 4 May 2016, principally on the basis that the First-tier Tribunal Judge had not taken account of the decision in AB and Others (Internet activity - state of evidence) Iran [2015] UKUT 00257 (IAC).
6. The appeal was heard afresh by Judge of the First-tier Tribunal Beg who by a decision promulgated on 26 September 2016 dismissed it on all grounds.
7. On 20 October 2016 Judge of the First-tier Tribunal Saffer refused permission to appeal on the basis that the grounds advanced by the Appellant were no more than a disagreement with the Judge. The Appellant renewed his application and on 7 December 2016 Deputy Upper Tribunal Judge Roberts granted permission to appeal on the basis that the Judge had not "given a sufficient explanation as to why she has concluded that the 'pinch point' risk to him in minimal given the comments in AB and Others..." (sic).
The Upper Tribunal Hearing
8. The Appellant was present accompanied by his representative's interpreter. Mr de Ruano explained that he had very little English and I suggested to the interpreter that he could give a summary of what was said to the Appellant.
9. The parties agreed that the issue before the Upper Tribunal was whether Judge Beg had made a material error in law in the manner in which she had applied the guidance in AB and Others to the facts as she had found them. They also agreed that the recent country guidance decision of SSH and HR (Illegal exit: failed asylum seeker) Iran CG [2016] UKUT 00308 (IAC) had no impact on this appeal.
Submissions for the Appellant
10. Mr de Ruano referred to the grant of permission to appeal of 7 December 2016 which I have already quoted. The Appellant's name and picture were available on a website. In AB the Upper Tribunal had found at paragraph 449:-
Certain things are quite clear and uncontroversial. Iran is a country that does persecute some people who oppose it. Persecution takes many forms. We have been given detailed examples of a small number of people sent to prison for a long period of time in conditions that must be very challenging.
He reminded me the lower standard of proof was applicable and submitted that it was inevitable that there was a real risk something could happen to the Appellant on return. Judge Beg had erred in law by giving insufficient reasoning to support her finding that there was no real risk to the Appellant on return to Iran. Her decision should be set aside.
Submissions for the Respondent
11. Mr Whitwell noted that Judge Beg's decision had been described by Deputy Upper Tribunal Judge Roberts as "clearly a detailed and thoughtful one". He referred to paragraphs 471 and 472 of AB and Others which state:-
471. However, as might more frequently be the case, where a person's leave to remain had lapsed and who might be travelling on a special passport, there would be enhanced interest. The more active they had been the more likely the authorities' interest could lead to persecution.
472 The mere fact that a person, if extremely discrete, blogged in the United Kingdom would not mean they would necessarily come to the attention of the authorities in Iran. However, if there was a lapse of discretion they could face hostile interrogation on return which might expose them to risk. The more active a person had been on the internet the greater the risk. It is not relevant if a person had used the internet in an opportunistic way. The authorities are not concerned with a person's motivation. However in cases in which they have taken an interest claiming asylum is viewed negatively. This may not of itself be sufficient to lead to persecution but it may enhance the risk.
Mr Whitwell submitted that the Upper Tribunal had linked the level of risk to an individual to the level of activity. He stressed that the degree of risk increased the greater the degree of activity.
12. The Judge at paragraph 13 had said that the Appellant "said he is not active on the internet and has been homeless for six years. Nor is he active on his laptop." At paragraph 26 she referred to his Facebook profile and that "he accepted that it did not state that he is an atheist."
13. At paragraphs 29-34 she had set out in full the submissions made for the Appellant by Mr de Ruano who had appeared in the First-tier Tribunal based on the learning in AB and Others. The Judge had given due consideration to the learning in AB and Others in the context of the facts as found and had given sustainable reasons for dismissing the appeal. Her decision contained no error of law and should stand.
Response for the Appellant
14. Mr de Ruano replied that minimal activity on the web and electronic social media did not negate the risk on return. At paragraph 455 of AB and Others the Upper Tribunal had said:-
.... It is probably the case that the more active persons are the more likely they are to be persecuted but the reverse just does not apply. We find that the authorities do not chase everyone who just might be an opponent but if that opponent comes to their attention for some reason then that person might be in quite serious trouble for conduct which to the ideas of western liberal society seem of little consequence.
Even if the Appellant is not sincere in his claimed atheism there was material on the web which indicated that he was an atheist. If the Appellant were to deny being an atheist if on return this was put to him and the Appellant were to deny being an atheist, the fact that there was this reference to him on a website would be sufficient to place him at risk. The decision should be set aside.
Consideration
15. The Judge at paragraph 29 of her decision set out the standing of AB and Others and at paragraphs 31 and 33 referred to the skeleton argument for the Appellant and at paragraphs 32 and 33 addressed the substance of paragraphs 451, 455, 457, 460, and 462 of AB and Others and indeed set out word for word the whole of paragraphs 466-472 of AB and Others. At paragraph 34 the Judge made findings about the extent of the Appellant's internet activity and at paragraphs 35 and 36 addressed the issue of the Appellant's rejection of Islam and his appearance on the website of the CEMB. At paragraphs 40-42 she made findings that the Appellant's sur place claim based on his atheism was self-serving. I note that this does not negate the claim in its entirety: see Damian v SSHD [1999] EWCA Civ. 3000 and YB (Eritrea) v SSHD [2008] EWCA Civ. 360. The issue is whether the authorities in Iran if they were aware of the Appellant's activities would be likely to treat them as insincere and opportunistic.
16. The Judge had in mind the "pinch point" moment of return and the risks involved because she dealt extensively with that in addressing the learning in SB (Risk on return - illegal exit) Iran CG [2009] UKAIT 00053 at paragraph 30. This paragraph opens with the statement that "the court considered the capability of the Iranian authorities to monitor the use of social and other internet based media by Iranian nationals based outside of Iran". The Judge accepted that the submission to which she referred anything that the Iranian authorities would disapprove of or to bring him to their attention. She repeated this in the closing sentences of paragraph 34 that "there is no credible evidence... the Appellant is a regular blogger... that the appellant has written anything that can be construed as a criticism of the Iranian state or government."
17. The Upper Tribunal's grant of permission was on the sole ground that it was arguable the Judge had not given a sufficient explanation to support her findings in relation to the Appellant's case and the learning in AB and Others. On a careful reading of the Judge's decision, I have come to the conclusion that she more than adequately dealt with the issues and that the decision contains no material error of law and therefore it shall stand.
Anonymity
18. There was no request for anonymity and having heard the appeal consider none is warranted.

NOTICE OF DECISION
The decision of the First-tier Tribunal contained no material error of law such that it should be set aside. It shall therefore stand.
The Appellant's appeal is dismissed.

No anonymity direction is made.

Signed/Official Crest Date 24. i. 2017

Designated Judge Shaerf
A Deputy Judge of the Upper Tribunal