The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/01120/2013


Heard at Nottingham
Determination Promulgated
on 17th December 2013
On 23rd December 2013




(Anonymity direction made)


For the Appellant: Ms Wilson of Parker Rhodes Hickmotts
For the Respondent: Mr Mills - Senior Home Office Presenting Officer


1. This is an appeal against a determination of First-tier Tribunal Judge PJM Hollingworth promulgated on 22nd August 2013 following a hearing at Nottingham Magistrates Court on 12th August 2013 in which he dismissed the Appellant’s appeal against the order for his deportation from the United Kingdom made under the provisions of UK Borders Act 2007.
2. The Appellant is a Syrian national born on 15th November 1974. He originally claimed asylum in 2005, stating he was Palestinian, but his claim was dismissed by then Immigration Judge Bowen in a determination promulgated on 28th June 2005. Judge Bowen found the Appellant not to be credible in any respect and found he had not discharged the burden of proof upon him to show that he was entitled to be recognised as a refugee or to any other form of international protection.
3. The Appellant has committed a number of criminal offences and is the subject of the deportation order as a result of a conviction before the Peterborough Crown Court, on a guilty plea, relating to the supply of drugs. He has previous convictions for sixteen offences relating to dishonesty and drug use, and various sentencing options have been attempted without success resulting in a thirty month sentence of imprisonment on counts one, three, four, five, six and seven and a one-year concurrent sentence on count two.
4. The Appellant has been assessed as presenting a high risk of reconviction in his pre-sentencing report which is mirrored in the NOMS report considered by Judge Hollingworth.
5. The Appellant sought to rely upon the exceptions to automatic deportation but any claim under the Refugee Convention or Qualification Directive relating to humanitarian protection was found to be excluded as a result of his criminality and the risk of harm he posed to society. In paragraph 29 of the determination Judge Hollingworth states that, in his opinion, in light of the assessment of risk set against the background of the record of previous convictions the Appellant had failed to rebut the presumption that the section 72 certificate should be upheld. Although there is no separate mention of exclusion from humanitarian protection this can be properly inferred as being the case in light of the findings. Paragraph 339D of the Immigration Rules states:
“A person is excluded from a grant of humanitarian protection under paragraph 339C (iv) where the Secretary of State is satisfied that:
(i) there are serious reasons for considering that he has committed a crime against peace, a war crime, a crime against humanity, or any other serious crime or instigated or otherwise participated in such crimes;
(ii) there are serious reasons for considering that he is guilty of acts contrary to the purposes and principles of the United Nations or has committed, prepared or instigated such acts encouraged or induced others to commit, prepare or instigate instigated such acts;
(iii) there are serious reasons for considering that he constitutes a danger to the community or to the security of the United Kingdom; and
(iv) prior to his admission to the United Kingdom the person committed a crime outside the scope of (i) and (ii) that would be punishable by imprisonment were it committed in the United Kingdom and the person left his country of origin solely in order to avoid sanctions resulting from the crime”.
6. 339D (iii) was found to be satisfied.
7. The findings in relation to Article 8 relating to the Appellant's private life in the United Kingdom have not been shown to be affected by any legal error and indeed are not challenged in the original application for permission to appeal to the Upper Tribunal. In relation to Article 8 family life, based upon the presence of a son in the United Kingdom, it has not been found that the evidence indicates an ongoing relationship sufficient to engage Article 8. This has not been shown to be a finding that is perverse or irrational either.
8. The skeleton argument provided did seek to amend the grounds of appeal on the basis of an allegation that in paragraph 68 of the determination the Judge had failed to provide a reason for why the Appellant could return in light of his medical condition but, in paragraph 63, it is noted that he could receive treatment for his medical condition in Syria which has not been shown to be perverse, irrational, or contrary to the evidence sufficient to engage the high threshold to be found in European and domestic case law relating to Article 3 medical cases or to make the conclusions relating to proportionality of the decision irrational when considering Article 8 ECHR.
9. The finding the Appellant is not able to satisfy the requirements of the Immigration Rules is not challenged in any event.
10. The key finding being challenged is the conclusion of Judge Hollingworth that there will be no breach of the Appellant's Article 3 rights if he was to be returned to Syria. It was confirmed before this Tribunal and the Tribunal who determined the country guidance case of KB (failed asylum seekers and forced returnees) Syria CG [2012] UKUT 426 that returns to Syria are suspended at this point in time in light of the ongoing conflict in that country and so Judge Hollingworth was required to consider the matter on a hypothetical basis as there is not going to be any actual return at this point in time.
11. Whether a failed asylum seeker faces a real risk of persecution or serious harm or ill treatment contrary to Article 3 is a matter to be considered on the available evidence.  In paragraph 32 of KB the Tribunal found:
32. How would a failed asylum seeker or forced returnee being returned now fare in that context?  Having surveyed the more recent evidence provided by Dr George, the information contained in the joint Austrian-Danish report and the indication that it was the respondent’s position that it was “possible that returnees would be viewed with suspicion” and “that even failed asylum seekers may be at risk of ill-treatment” we find that we have to take a different view to that expressed in paragraphs 75 to 89 of SA & IA. We accept that in the context of the extremely high level of human rights abuses currently occurring in Syria, a regime which appears increasingly concerned to crush any sign of resistance, it is likely that a failed asylum seeker or forced returnee would, in general, on arrival face a real risk of arrest and detention and of serious mistreatment during that detention as a result of imputed political opinion. That is sufficient to qualify for refugee protection. The position might be otherwise in the case of someone who, notwithstanding a failed claim for asylum, would still be perceived on return to Syria as a supporter of the Assad regime. 
12. The finding on country conditions is therefore that whilst there is a real risk that forced returnee may be subject to treatment sufficient to warrant a grant of international protection not all failed asylum seekers/forced returnees are at risk. There is a class of persons who may be perceived on return to be supporters of the Assad regime and in relation to whom there is insufficient evidence of a real risk of persecution/ill-treatment per se.
13. Permission was granted on the basis that it was arguable Judge Hollingworth failed to apply the principles enunciated in KB but I find there is no merit in this argument as the Judge was clearly aware of the case law, and in fact mentions the case on a number of occasions, and his assessment relating to risk is clearly based upon awareness of the above principle.
14. As a result of discrepancies in the evidence the Appellant was found not be credible by Judge Hollingworth too. It was accepted, however, that he had completed compulsory military service and continued to act thereafter as a civilian bodyguard for General Bahjat and his wife. This named individual was a high-ranking person within the Assad regime at the time the Appellant lived in Syria and helped President Assad succeed his father to the presidency. To be accepted as a being suitable to be a bodyguard for such a high profile person within the regime indicates trust and a strong perception that they support the regime. A finding to this effect has not been shown to be preserve or irrational.
15. In paragraphs 67 and 68 of the determination the Judge sums up his findings and assessment as follows:
67. I find that the Appellant on his own account exercised his option not to renew the contract. It is clear therefore on the Appellant’s account that he has served the Assad regime as a soldier and as a civilian in the context of acting as the bodyguard of a significant figure in the context of the regime namely General Bahjat. The Appellant did not experienced difficulty in leaving Syria. There is no arrest warrant outstanding for him. On the basis of these features of the Appellant’s case he will be seen as a supporter of the Assad regime.
68. I take into account the diagnosis of paranoid schizophrenia. It was submitted that this should be taken into account in the context of risk on return. I take it into account. I have considered the authorities and the background material. I take into account the existing situation in Syria on the date of the hearing. I take into account the conditions of the country and the current state of warfare within it. In the light of the Appellant’s declared background on his own account I do not find that a real risk or serious possibility of harm exists to the Appellant.
16. The Judge considered the position at the date of the hearing which he was required to do. It was necessary to consider how the Appellant will be perceived in the eyes of any potential persecutor in his home state. The Tribunal in the KB examined the country material which indicates that returnees are initially viewed with suspicion and that on return persons who are failed asylum seekers and those who had left Syria illegally will face detention and investigation. The fact this class of individuals may be detainment does not automatically mean they will be subject to adverse attention sufficient to warrant a grant of international protection per se, however. At paragraph 26 of KB the Tribunal noted:
26. Another comment from “a Western diplomatic source“ was that out of the four Syrian nationals repatriated in recent months, three were detained and then released and one was charged with spreading false information abroad. We noted that those returns would have been at some point in late 2009 when the Austrian-Danish report was published in May 2010.
17. The Respondent’s Operational Guidance Notes (OGN) which are to be found in the Appellants own appeal bundle, (pages 64 - 66 relating to failed asylum seekers), refer to there being a sophisticated computer system employed at border controls to screen persons upon entry to Syria which includes information from various security offices from all parts of the country. The material states that the immigration authorities are able to quickly identify whether a returnee has a security file and, if they are wanted, they are transferred from the detention facilities of the Immigration Service to the security agencies detention centre where treatment, including disappearances, is noted (3.11.3 at page 65). The same material records at 3.4.11 that claiming asylum abroad is perceived as a manifestation of opposition to the Syrian government leading to detention and questioning.
18. I accept the submission made by Ms Wilson that just because the Appellant had a pro-regime profile before he left Syria in 1999 it could not automatically be assumed that he would have such profile on return, but it was clearly not established on the evidence before the Judge that if a check of the necessary systems were made it will be discovered that (a) there are adverse entries held by any of the security agencies in respect of the Appellant (b) that in light of his position of responsibility and the detailed records that his involvement with the regime would not be established either after he made claims to this effect or as result of the record keeping of the Syrian authorities, or (c) that there will be any other reason why the Appellant may come to the adverse interest of those questioning him such as to create a real risk of ill-treatment sufficient to engage Article 3 ECHR.
19. The country guidance, and other country material, clearly admits a narrow class of individuals who can return to Syria without facing a real risk of adverse treatment. The key question in all such cases being whether the Appellant has substantiate his claim to have an adverse profile, actual or imputed, such as that it is likely he will fall into such a category on return. It is accepted that most Syrians who claim refugee status at this point in time are being permitted to remain by the Secretary of State, which indicates an assessment of the country material and a lack of evidence of policy or resistance to granting status to such individuals, but this does not remove from the Appellant the need to discharge the burden upon him to the required standard to prove that he falls within a category of those at risk.
20. The test is not whether another judge would make this decision in the same way but whether the decision was within the range of those permissible on the evidence presented to Judge Hollingworth. Having considered all the available evidence and the submissions made with the degree of care required in an appeal of this nature I conclude that the Appellant has not discharged the burden of proof upon him to the required standard show that the finding there is insufficient evidence to prove a real risk of ill- treatment sufficient to engage Article 3 on return, is outside the range of permissible findings or can be said to be perverse or irrational on the facts. It is a distinguishing factor of this case that the Appellant has in the past demonstrated clear support for the Assad regime and there is insufficient evidence that he will be perceived as being against the regime on return sufficient to expose him to the necessary degree of ill-treatment.
21. The Appellant remains detained but if he is not going to be removed it is likely that he will be released from custody, on either bail granted by an Immigration Officer or the Tribunal, and if there is a change in circumstances in country conditions warranting a fresh claim no doubt he will take Miss Wilson's advice upon how such a claim should be structured and presented to the Secretary of State.
22. There is no material error of law in the First-tier Tribunal Judge’s decision. The determination shall stand.
23. The First-tier Tribunal did not make an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.
I make that order (pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008).

Upper Tribunal Judge Hanson

Dated the 17th December 2013