Tribunal decisions

The decision

IAC-AH-CO/DP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/13327/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 6th February 2017
On 22nd February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE D E TAYLOR

Between

[H M]
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr T Hussain of Barnes Harrild & Dyer Solicitors
For the Respondent: Mrs R Petterson, Home Office Presenting Officer

DECISION AND REASONS
1. This is the appellant's appeal against the decision of Judge Robson made following a hearing a Bradford on 15th September 2016.
Background
2. The appellant is a citizen of Iran born on 29th July 1992. He entered the UK clandestinely on 24th August 2010 and claimed asylum. He was refused and his subsequent appeal was dismissed. The Immigration Judge concluded that there was very little about his account which could be accepted, apart from his name.
3. The appellant made fresh claims on 4th April 2013 and 15th July 2013 and 10th December 2014 he said that he would be at risk on the basis that he would be persecuted as a failed asylum seeker and as somebody who had remained active on social media, posting against the Iranian regime, in particular against the atrocities said to have been committed against the Kurds.
4. The judge took as his starting point the decision of the previous judge and maintained the view that the appellant's account of being sought for having a Kamala poster on his shop wall, and subsequent difficulties with the Etelaat was not credible.
5. The judge then considered the Facebook entries by the appellant which were highly critical of the regime.
6. It was the respondent's case that the only people allowed to view the Facebook entries were the appellant's "friends" and no evidence had been submitted to establish that the authorities in Iran were aware of the page. The appellant stated in his witness statement that the "friends" setting was by mistake and was set to "public" when the mistake was realised.
7. The judge found that there was in fact no evidence that the Facebook was open to non-friends or that the authorities had or would have been able to search against him and he therefore placed no weight on the claim that the authorities would be aware of his internet activities.
8. He declined to depart from the country guidance case in SSH and HR (illegal exit: failed asylum seekers) Iran CG [2016] UKUT 00308 and dismissed the appeal.
The Grounds of Application
9. The appellant sought permission to appeal on the grounds that the judge had failed to lawfully consider the risk on return as on account of the internet blogging and failed to apply the case of AB and Others (internet activity - state of the evidence) Iran [2015] UKUT 0257.
10. Second, the judge had disregarded the expert evidence of Dr Joffe when considering the risk on return to Iran on ethnicity grounds. Dr Joffe's opinion was that there was an increased risk to Kurds.
11. Third he had failed to properly apply the country guidance case and had written at paragraph 70D
"I therefore conclude that on return despite the fact that the appellant has not had benefit of necessary documents as outlined above, would face a particular risk of abusive interrogation and even detention"
which made no sense.
12. Permission to appeal was granted by Judge Pedro on 7th November 2016.
13. No reply was served by the respondent.
Submissions
14. Mr Hussain relied on his grounds, and he relied heavily on the case of AB which he said established that the appellant would be at risk on return.
15. Mrs Petterson acknowledged that the judge had not referred to the case of AB but submitted that the judge was entitled to the view that this particular appellant would not attract any attention at all on a return to Iran. Given his complete lack of profile there was no reason why he would be asked about his internet activity on return. It was open to the judge to conclude that the appellant's privacy settings were private and there was no reason why the authorities would have any interest in interrogating him about them. He simply was not on the government radar.
16. She did however accept that, if he was questioned, he would be at risk, given the nature of the material which he had displaced on his Facebook page.
17. So far as the other grounds were concerned, it was entirely open to the judge to follow the country guidance case of SSH. The appellants in that case were, like this appellant, Kurdish. The judge had considered the expert evidence of Dr Joffe and taken it into account but took the view that it was not sufficiently compelling so as to require him to go behind the country guidance case of SSH.
18. With respect to Ground 3, there was clearly a typographical error in the determination.
Findings and Conclusions
19. The case of AB was in the bundle before the judge. There is no reference to it in the determination, which is surprising, given that it was the foundation for the appellant's claim to be at risk on account of his sur place activities.
20. There is no merit in grounds two and three for the reasons set out in Mrs Pettersen's submissions. However, failure to have regard to relevant case law is an error of law. The decision is set aside.
21. No challenge was made in the grounds to the judge's adverse credibility findings which are therefore the basis of the remaking of this decision. The appellant is a man who has been found to lack credibility in his original claim. It is however accepted that he is a Kurd and he has been in the UK since 2010.
22. I turn to the case of AB.
23. The head note of AB states that the material put before the Tribunal did not disclose a sufficient evidential basis for giving country or other guidance in terms of the reception in Iran for those returning otherwise than with a regular passport in relation to whom interest may be excited from the authorities internet activity as might be revealed by an examination of blogging activity or a Facebook account. It is not authority for the proposition that any person who has been actively critical of the Iranian regime on the internet would be at risk. The Tribunal concluded that a person who is returning to Iran after a reasonably short period of time on an ordinary passport having left Iran illegally would almost certainly not attract any particular attention at all. However the Tribunal accepted that, at the very least, many appellants would expect to have their ordinary leave to be in the UK to have lapsed and they would be travelling on a special passport.
24. The more active a person had been on the internet the more likely he would be to get into trouble and it was not relevant that a person had used the internet in an opportunistic way.
25. The Tribunal said:
"We are aware of examples in some countries where there is clear evidence that the authorities are scornful of people who try to create a claim by being rude overseas. There is no evidence remotely similar to that in this case. The touchiness of the Iranian authorities does not seem to be in the least concerned with the motives of the person making a claim but if it is interested, it makes the situation worse not better because seeking asylum is being rude about the government of Iran and whilst that may not of itself be sufficient to lead to persecution it is a point in that direction."
26. At paragraph 467 the Tribunal concluded:
"The mere fact of being in the UK for a prolonged period does not lead to persecution. However it may lead to scrutiny and there is clear evidence that some people are asked about their internet activity and particularly for their Facebook password. The act of returning someone creates a pinch point so that a person is brought into direct contact with the authorities in Iran who have both the time and inclination to interrogate them. We think it likely that they will be asked about their internet activities and likely if they have any internet activity for that to be revealed and if it is less than flattering of the government to lead to at the very least a real risk of persecution."
27. Again at paragraphs 470 and 471
"The main concern is the pinch point of return. A person who was returning to Iran after a reasonably short period of time on an ordinary passport having left illegally would almost certainly not attract any particular attention at all and for the small number of people who would be returning on an ordinary passport having left lawfully we do not think there would be any risk to them at all.
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 there had been the more likely the authorities' interest could lead to persecution."
28. And finally:
"There is clear evidence that some people are asked about their internet activity and particularly for their Facebook password. We can think of no reason whatsoever to doubt this evidence. It is absolutely clear that blogging and activities on Facebook are very common amongst Iranian citizens and it is very clear that the Iranian authorities are exceedingly twitchy about them. We cannot see why a person who would attract the authorities sufficiently to be interrogated and asked to give account of his conduct outside of Iran would not be asked what he had done on the internet. Such a person could not be expected to lie, partly because that is how the law is developed and partly because as is illustrated in one of the examples given above it is often quite easy to check up and expose such a person. We find that the act of returning someone creates a pinch point so that returnees are brought into direct contact with the authorities in Iran who have both the time and inclination to interrogate them. We think it likely that they will be asked about their internet activity and likely if they have any internet activity for that to be exposed and if it is less than flattering of the government to lead to a real risk of persecution."
29. The fact that the appellant has no history of opposition in Iran is only relevant to the question of whether he would be likely to be stopped and not relevant to the issue of motivation for the blogging which the Tribunal in AB found to be irrelevant.
30. The Tribunal in SSH and HR was satisfied that 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. They did not accept that being Kurdish was relevant to how a returnee would be treated by the authorities although it was accepted that it could be an exacerbating factor for a returnee otherwise of interest.
31. However, it was accepted that failed asylum seekers are questioned and if there are any particular concerns arising from their previous activities, either in Iran or in the UK, then there will be the risk of further questioning, detention and potential ill-treatment. If they cooperated and accepted that they left illegally and claimed asylum abroad then there would be no reason for ill-treatment and questioning would be for a fairly brief period.
32. The real issue here is whether the appellant would on return be reasonably likely to be asked about his internet activity. If so he could not be expected to lie. Mrs Petterson acknowledged that the nature of the blogs was such that, if discovered, the appellant would be at real risk.
33. It is clear that the Tribunal in AB found difficulty in coming to a clear conclusion on the risk. It is a very nuanced decision. The appellant does not fall into the category of persons identified as being of no or very low risk. He has been in the UK for a lengthy period of time, seven years, and whilst there may be real and legitimate doubts about his motivation, given his history, that is irrelevant to the issue of whether he would in fact be at risk on return. The Tribunal were quite clear that Iran is not a country which would ignore such activity, even if they believed it to be insincere and a cynical ploy to manufacture an asylum claim. Whilst it stopped short of saying that any person who has been actively critical of the regime on the internet would be at risk, it is only if I can be satisfied that the appellant would not be asked about his internet activity that he could be safely returned.
34. The appellant has two potentially exacerbating factors, namely his Kurdish ethnicity and the length of time he has been in the UK, in addition to his illegal exit. At the pinch point of return, there is therefore a reasonable degree of likelihood that he will be interrogated, which would lead to disclosure of his internet activity, and consequently a risk of persecution on grounds of his political opinion. On that basis, I conclude that he has made out his case.
35. The original judge erred in law and his decision has been set aside. This is remade as follows. The appellant's appeal is allowed.

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 their 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 Date 21 February 2017

Deputy Upper Tribunal Judge Taylor