Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/12529/2015

THE IMMIGRATION ACTS

Heard at Bradford Upper Tribunal
Decision & Reasons Promulgated
On 10th October 2016
On 31st October 2016

Before

DEPUTY upper tribunal judge ROBERTS

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

OAS
(ANONYMITY DIRECTION MADE)
Respondent

Representation:
For the Appellant: Mrs Pettersen, Senior Home Office Presenting Officer
For the Respondent: Miss Singh, Counsel

Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
An anonymity direction was made by the First-tier Tribunal. As a protection claim, it is appropriate to continue that direction.

DECISION AND REASONS

1. For the purposes of this decision, I shall refer to the Secretary of State as "the Respondent" and to Mr OAS as "the Appellant" which reflects their respective positions before the First-tier Tribunal. The Respondent appeals with permission against the decision of a First-tier Tribunal (Judge Bagral) allowing the Appellant's appeal against the Respondent's refusal to grant him asylum.
Background
2. The Appellant is a citizen of Iran and is of Kurdish ethnicity. He entered the UK in November 2008 claiming asylum on arrival. His claim was refused and a subsequent appeal dismissed as his claim was found to be lacking in credibility. The Appellant then put forward further submissions to the Respondent on 11th February 2011, 6th February 2013 and 25th October 2013. These were all subsequently refused with no right of appeal. The Appellant lodged further submissions on 26th November 2014 and these latest submissions were recognised by the Respondent as a fresh claim. This claim was refused by the Respondent on 16th September 2015.
3. The Appellant exercised his right to appeal against that refusal and the appeal which came before Judge Bagral on 10th June 2016, was allowed by a decision promulgated on 8th August 2016. The Respondent now appeals with permission to this Tribunal.
4. The Appellant's claim as originally made out centred on a claim that he and his girlfriend in Iran had sex in order to coerce her parents into agreeing to their marriage. He said as a result of this there was an arrest warrant in existence. That part of the Appellant's claim was found not credible in a decision issued by Judge Mark-Bell on 10th February 2009 and it is right to say that Judge Bagral found no good reason to depart from those findings. Therefore those findings remain unchallenged before this Tribunal and are to be regarded as final.
5. Judge Bagral then proceeded to assess the Appellant's risk on return against the profile of an Iranian Kurd with no political profile either in Iran or in the UK and as someone who was of no adverse interest to any individual in Iran or to the Iranian authorities. The judge accepted that the Appellant had exited Iran illegally. She took into account the evidence contained in two expert reports and concluded that she was satisfied that the Appellant's ethnicity alone, was sufficient to create a real risk of harsh interrogation and ill-treatment on return, such as to comprise an Article 3 risk.
Onward Appeal
6. The only Ground of Appeal raised by the Respondent centres on the following. It is said that the judge allowed the appeal on the basis that the Appellant has made out that there is a general risk on return to Iran for Kurds. It is said that this finding is made despite the judge referring in her decision, to the most recent country guidance decision in SSH and HR (Illegal Exit: Failed Asylum Seeker) Iran CG [2016] UKUT 00308 (IAC). The grounds go on to say that it was found in SSH and HR that there was no such generalised risk to Kurdish returnees to Iran. In the present case the Judge had found there was such a risk based on 'one solitary expert's report'. This, it was claimed, was inadequate. It was said further that the judge failed to remind herself of the need to find that there had been a durable change in the country since the previous country guidance of SB (Risk on Return - Illegal Exit) Iran CG [2009] UKAIT 0053.
Error of Law Hearing
7. I heard submissions from both Mrs Pettersen and Miss Singh. Mrs Pettersen's submissions broadly kept to the lines of the grounds seeking permission, but she did emphasise that both appellants in SSH and HR, were Iranian Kurds and like the Appellant in the present case, were deemed to have no political profile, nor any other factors attracting the attention of the authorities.
8. Miss Singh's submissions it is right to say were rather fuller than those of Mrs Pettersen and are set out in her skeleton argument served as a rule 24 response. At the end of submissions, I reserved my decision which I now give with reasons.
Consideration
9. The appeal before the FtT was heard on 10th June 2016. The CG decision in SSH and HR was not published until 4th July 2016. It could not therefore be referred to at the hearing on 10th June. It is the Respondent's claim that the judge erred in law by making her findings in contra distinction to the recent country guidance of SSH and HR and despite making reference to it relied upon one report from Dr Joffe.
10. I find that the judge has given the impression of straying into a consideration of matters which were not argued before her. No doubt this was to emphasise the difference in evidence in the case before her and what was before the CG panel. This may have led to an impression that in some way the judge has, as Mrs Pettersen said "cut across the grain" of a CG case. Of course, it is accepted by both representatives that the FtT is bound by CG cases but I find that on a fair reading of the judge's decision she has simply sought to emphasise that she was looking at matters from a different evidential viewpoint to the CG case.
11. However I return to the sequence of events relating to this matter and which are set out above. Quite simply when the FtT heard the present appeal on 10th June 2016, the CG case was not published. Therefore it was not in evidence before her. It did not therefore form part of the case she was hearing.
12. The judge I find, carefully reviewed the evidence which was before her, relying no doubt heavily upon the report of Dr Joffe but also on a report from Dr Khakhi, both of whom, she recorded, are renowned experts on Kurdish/Iranian affairs. Having relied upon that evidence, as she was entitled to do, she concluded that the Appellant had made out his case.
13. It is also correct to say that the Respondent raised no real challenge to either of the expert's reports (other than a sterile point about them being generic). It is hard to see therefore why the Judge is criticised for relying on that evidence. Having assessed the evidence before her the judge arrived at conclusions with reasons why the appeal should be allowed. She sets out her fully reasoned findings in [20] to [38]. Had she stopped there, I do not think that any criticism whatsoever concerning her decision, could result. Instead however she went on to say in [39] that she was "now aware" of the CG case in SSH and HR. and that she was not minded to reconvene the hearing because she had all the evidence she required before her. That was correct and it is hard to see why she seemingly decided to justify her decision, by bringing into the reasoning, a reference to the decision in SSH and HR. other than perhaps to emphasise that different evidence was before her.
14. It is correct to say that the arguments put before the CG panel, did not rely on either Appellant's ethnicity as Kurds. Indeed the CG panel specifically stated at [34] that it was not suggested to them that an individual faces risk on return on the sole basis of being Kurdish.
15. Different information of course, was before the FtT in the present appeal. Finally, the grounds took issue with Judge Bagral reliance on 'one solitary expert' (Dr Joffe). In fact, as Miss Singh pointed out Dr Joffe's report was fully sourced and as I noted above was not seriously challenged by the Respondent. In addition Judge Bagral also relied on a report from Dr Khaki. Therefore, I find, she decided the appeal according to the evidence which was before her, evidence which was not before the CG panel. It was proper to do so.
16. For the foregoing reasons therefore I find that the decision of the FtT discloses no error of law requiring it to be set aside. The decision stands.

Notice of Decision

The appeal of the Secretary of State is dismissed.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed C E Roberts Date 28 October 2016

Deputy Upper Tribunal Judge Roberts