Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/01694/2014

THE IMMIGRATION ACTS

Heard at: Field House
Decision and Reasons Promulgated
On: 3rd October 2016
On: 12th October 2016

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

SMW
(anonymity direction made)
Appellant
And

The Secretary of State for the Home Department
Respondent

For the Appellant: Ms T. Jaber, Counsel instructed by Sutovic and Hartigan
For the Respondent: Ms J. Isherwood, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant claims to be a national of the Islamic Republic of Iran born in 1980.

Anonymity Order

2. This case concerns a claim for international protection. Having had regard to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 and the Presidential Guidance Note No 1 of 2013: Anonymity Orders I therefore consider it appropriate to make an order in the following terms:

"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 to, amongst others, both the Appellant and the Respondent. Failure to comply with this direction could lead to contempt of court proceedings"

Background to this Appeal

3. The Appellant first arrived in the United Kingdom via Calais on the 26th January 2005. He was interviewed and sent back to France. No copy of that screening interview now exists, but it would appear that the Appellant gave a false name, date of birth and account. He did not claim to have any political problems in Iran. Within a matter of weeks he was back in the United Kingdom. We know this because on 5th February 2005 he claimed asylum. His application was rejected on the 11th April 2005. The reasons for that decision are also now lost in the mists of time, as neither party has been able to produce a copy of the reasons for refusal letter.

4. What we do have is a copy of a determination of the Asylum and Immigration Tribunal dated 9th June 2005. The Appellant was not represented before Judge Ghani. He gave oral evidence and relied on the statements he had made to the immigration service. He said that he had left his village in Iranian Kurdistan because his family had come under pressure from the authorities. His brother was a member of the KDPI and had disappeared. The security services had come to the family home looking for him. They had arrested the Appellant's father and detained him for one week. Over a year later they had come back and arrested him again. On this occasion the police had held his father for between 15 and 20 days. They had accused him of being a member of the KDPI and had suggested that the Appellant might be involved too. It was against this background that the family had taken a decision to send the Appellant away. An agent was obtained to arrange his illegal departure from Iran and get him to safety in Europe.

5. Judge Ghani considered the fact that the Appellant had failed to claim asylum in France, and that he had given "completely different" details when interviewed in January from the facts that he now relied upon. These matters case serious doubt on his credibility as a witness. As for the account the Judge did not find it to be plausible that the Appellant's father would have been arrested in the manner claimed. The Judge did not find it credible that the Appellant would have remained at home the whole time since his brother went to join the KDPI, if it was believed that he was at risk. It was implausible that he could have escaped arrest. Although the Judge accepted that he would be questioned upon return to Iran, she did not accept that this would entail any ill treatment and the appeal was dismissed.

6. The Appellant did not leave the United Kingdom. He remained here unlawfully. He came to the attention of the Respondent when, on the 27th July 2007, he was convicted at Warwick Crown Court of using a false instrument (an EEA registration card). He was sentenced to 6 months' imprisonment.

7. The Respondent took a decision to deport him on the grounds that his removal was conducive to the public good. The decision was served on the 28th April 2008 and his appeal against that decision was heard in his absence by First-tier Tribunal Judge CJ Deavin. The determination, dated 29th May 2009 contains no reasoned findings save to say that the Secretary of State's concerns had not been displaced.

8. It seems that there were difficulties in securing the documentation necessary to affect the Appellant's removal to Iran. He was held in detention for approximately 13 months. On the 14th May 2009 the Appellant wrote to the Iranian embassy asking for their help in securing his release and saying he wanted to return to Iran. At some point he made an application to return under the 'Facilitated Removal Scheme' (FRS).

9. On the 11th January 2012 he requested that the Deportation Order signed on the 6th August 2008 be revoked, invoking asylum and human rights grounds. He was interviewed; the Respondent scrapped the FRS application and granted him permission to work. There was no decision until the 12th August 2014. The Respondent rejected the asylum claim on the grounds that he had not been found to be credible in his earlier appeal, and further on the ground that his nationality was now in doubt. The letter gives a number of reasons why it is not accepted that the Appellant is in fact Iranian. The human rights application was rejected and the Respondent refused to revoke the deportation order.

10. The appeal in respect of all of these matters came before Judge Hussain of the First-tier Tribunal. In a decision dated 28th November 2014 Judge Hussain held that the appeal against deportation should be allowed on human rights grounds. The Appellant was in a genuine and subsisting relationship with a British woman and due, inter alia, to her health issues it was found to be unduly harsh to expect her to relocate. The Respondent's appeal against that decision was dismissed by me in a decision dated 29th March 2016.

11. Judge Hussain dealt only briefly with the asylum grounds. He stated that he found the appellant's claim to have lost contact with his family to be "implausible" and without further analysis rejected the appeal on Devaseelan grounds. The Appellant appealed that decision and in my decision of 29th March 2016 I found the grounds to have established a material error in law. The Appellant had produced country background material which had not been before Judge Ghani and this required consideration. The appeal had not been given anxious scrutiny. I therefore set aside the decision of Judge Hussain (on asylum grounds only).

12. The matter has therefore come back before me for re-making.

The Respondent's Case

13. The very detailed reasons for refusal letter is dated 12th August 2014. On the matter of the Appellant's claimed nationality, the author notes that he can speak only a few words of Farsi. The Respondent notes that Farsi is the national language of Iran and that it is taught in schools. He has failed to produce any documentary evidence of his nationality, and was unable to answer, to the Respondent's satisfaction, questions about the geography of the North West of Iran. He could not, for instance, name any local rivers. He described the mountains as the Gularash when they are in fact the Zagros range. He could not name all of the Iranian national holidays and his explanation "we are Kurdish and Sunni and we do not celebrate what they celebrate" was rejected as not credible given that the Appellant claims to have left Iran when he was 24. He could not name all of the Farsi months, or answer questions about Iranian history such as the date that Khomeini returned to the country.

14. In respect of the rest of the claim the Respondent addresses country background evidence in respect of the Appellant's Kurdish ethnic identity, military service and illegal exit. The Respondent concludes that none of those factors give rise to a real risk of harm.

15. Ms Isherwood relied on the findings of the Upper Tribunal in SSH and HR v Secretary of State for the Home Department (illegal exit failed asylum seeker) Iran CG [2016] UKUT 00308 (IAC). She submitted that there was in general no real risk of harm to returned asylum seekers and this was all the Appellant was. His claim that his family had suffered problems because of his brother's involvement with the KDPI had already been rejected. Judge Ghani had given good reasons for doubting the Appellant's credibility as a witness. When he had first arrived in 2005 he had lied to an immigration officer. He had given a false name and a false account. That showed he was prepared to lie and the situation was no different today. The 'section 8' matters also weighed heavily against him because he had still not given any good reason why he had not claimed asylum in France. It was evident from the Appellant's own behaviour that he did not have a genuine fear of harm in Iran because he had asked to go home. Why would he have done that if the historical account he now advances was true?

16. Ms Isherwood submitted that the fact that the Appellant had not completed his military service was neither here nor there. The country background evidence showed that men were eligible for military service between the ages of 18 and 34 and the appellant was now aged 36. He would not therefore be at any risk of conscription. If he was, the evidence indicated that you can, in effect, buy your way out. His claim not to have had any contact with his family was not credible.

17. Ms Isherwood noted the expert report by Roya Kashefi relied upon by the Appellant. She submitted that the report did not assist me because Ms Kashefi herself acknowledged that it was difficult to assess the degree of risk in cases such as this. Ms Isherwood submitted that Ms Kashefi makes assertions unsupported by evidence and makes comments about the Appellant's credibility that are not her place to make. Credibility is a matter for the Tribunal.

The Appellant's Case

18. It is submitted on the Appellant's behalf that he faces a well-founded fear of persecution in Iran for reasons of his imputed political opinion.

19. The Appellant relies on the findings in SSH to the effect that as an undocumented failed asylum seeker he is reasonably likely to face questioning upon return to Iran.

20. The Appellant accepts the conclusions in SSH that failed asylum seekers are not per se a category of persons at risk of ill-treatment. He relies however on three factors which he fears will increase the risk of ill-treatment such that the standard of proof would be met. These factors are:

a) His family history of involvement with the KDPI; and/or

b) His ethnic/religious identity as a Sunni Kurd; and

c) The fact that he has not completed his military service.

Ms Jaber submitted that taken cumulatively with his 11 year absence from Iran, the Appellant has demonstrated himself to be at risk. Even if (a) is rejected on Devaseelan or other grounds, she submits that factors (b) and (c) would be sufficient to tip the risk of harm into a 'real risk'.

21. In respect of his claimed history the Appellant relies on his asylum interview, his witness statement of the 1st March 2005, his witness statement of the 6th October 2014 and his oral evidence. The account has remained consistent. The Appellant claimed to be from a village in Piranshahr in rural Kurdistan. He attended school until he was 6 or 7 and learned a bit of Farsi. Then he left to work on the family farm. That is "how it is" where he is from. Everyone was Kurdish where he lived and everyone spoke Sorani. They did not engage with the Iranian state, history or holidays, for instance.

22. His elder brother Muhammad Ali left home to join the KDPI at some point in 2002. Two or three months after this the authorities came to the family home to look for him. They would ask about where he was. This became a regular occurrence. The Appellant did not know where his brother was, but believed that he may be in Iraq. In his oral evidence before me he explained that the KDPI guerrillas do not remain in Iran but stay on the border region in the mountains between the two countries. He could not say with certainty that was where his brother had gone, but that was what he presumed to be true. When the police arrested and detained the Appellant's father they told him that they suspected that the family were supporting the KDPI. In December 2004 the Appellant's mother died. His brother was contacted and returned home for her burial. The next day someone came to the house to say that his presence had been reported to the authorities. The Appellant's brother left. The Appellant's father was afraid that when the police came they would take him away instead, so that was why he got him out. He was taken to Piranshahr, from there to Ormia, and from there across the border into Turkey.

23. The Appellant denies having had the opportunity to claim asylum in France. Although he did have contact with the police he did not know or understand that he could inform them that he wanted to seek asylum. The police in France were just interested in rounding you up and letting you go. In respect of events since he arrived in the United Kingdom the Appellant states that he did not have a representative during his initial claim. Someone who saw him once at the detention centre never came back. He represented himself with the assistance of Kurdish community groups. When he asked to return to Iran it was because he was desperate to get out of detention. Someone came to see him from a group concerned with bail and they suggested that if he filled in that form he would get released. It worked. He did not want to go back to Iran at any time. The Appellant states that he has had no contact with his family. Nor has he attempted to contact them.

24. In respect of military service the Appellant states that in his village most people avoided the draft. This is normal in small Kurdish villages. They did not come to the village to force people to do it. The Appellant did not have an identity card and as such was 'off the radar'. If he had gone through a checkpoint into a big city perhaps he would have been conscripted but this was not an issue for him.

25. The Appellant relies on an expert report by Roya Kashefi dated 28th September 2016. Ms Kashefi is the Head of the Human Rights Committee of the Association des Chercheurs Iranians (ACI), which she describes as an international non-profit organisation dedicated to the unbiased and objective study of Iran. She prefaces her report by stating her awareness of, and adherence to, the Ikarian Reefer principles. Her expertise comes from over 25 years of academic and legal study of Iran. She has presented papers to numerous international conferences at the UN, in the UK and EU parliament. She has a close working relationship with ethnic and religious groups inside and outside of Iran as well as an expert knowledge of political groupings in the country. She has given expert evidence in the UK, Canada and in the EU.

26. Ms Kashefi confirms that to her knowledge the village identified by the Appellant as his home is in the West Mangoor district of Piranshahr in West Azerbaijan. The village is recorded as comprising 572 people, of whom 196 are illiterate. She notes that when the Appellant was asked to write down his address he used the Farsi, as opposed to Arabic, alphabet. He spelled Piranshahr with the Farsi 'P' not the Arabic 'B'. She concludes from this that the Appellant is likely to have learned the Farsi alphabet. He was able to correctly identify nearby towns. His recorded response to the question about mountains in his locality was 'Qulrosh'. The correct term is Quo'rosh. In respect of language Ms Kashefi confirms the Respondent's view that Farsi is the national language and this is taught in school. She notes:

"It is this very fact that many of Iran's ethnic groups object to because they believe the mother tongue is just as important. Misguidedly in a form of inverted chauvinism some Kurdish activists prohibit their children from studying at national schools because their schooling would be in Farsi and not Kurdish. I should add that none of dissident Iranian Kurdish political groups support this practice. This lack of schooling also has economic reasons whereby the children's labour is needed by the family?" [at 36]

27. In respect of his lack of documentation from Iran Ms Kashefi notes that the legal requirement to register birth is not always observed in rural villages. A birth certificate would have been required for the Appellant to be able to register at school. Since 2000 Iranians have been required to carry a National Identity Card but there have been numerous technical problems to issuing these documents. A government spokesperson clarified that in August 2015 there were still an estimate 5 million Iranians living without the card, now an essential requirement to applying for a driving licence, passport applications, banking and the like. Overall, having considered all of the evidence in including the detailed reasons for refusal letter, Ms Kashefi is of the opinion that the Appellant is Iranian.

28. In respect of risk Ms Kashefi concurs with the findings in the recent country guidance case of SSH [at 40]. She agrees that there is not a real risk to failed asylum seekers per se. She does however make the following points in favour of the Appellant's case:

i) As an undocumented ex-pat the Appellant will be returned to Iran on a laissez passer obtained from the Iranian embassy in London. This is the finding of the Tribunal in SSH. The process for obtaining one of these temporary travel documents is set out in detail in Appendix 3 of the report. The Appellant will be required to complete form G11. This requires him to state when and how he left Iran, and on what basis he has remained in the United Kingdom. At paragraph 48 of her main report she states that in the absence of ID documents the process can take several days. This delay gives the authorities an opportunity to investigate the individual before he returns to Iran;

ii) The Appellant is known to have been in the United Kingdom since 2005. He has not completed his military service. She writes [at 59]: "although it is compulsory for all men in Iran to serve conscription some decide not to. They either have the means to buy off the service, or can come up with health or other reasons for exemption. Others who cannot do either choose to live clandestinely. If one does not engage with officialdom it is easy to disappear. Where and how [the Appellant] lived readily offered him that opportunity. He would have encountered problems if for example he needed to enrol in university or applied for a driving licence or entered into legal employment as opposed to working on the family land. If an ID card had been applied for tracing him would have been easier. His explanation is plausible given my knowledge of the region and practises surrounding conscription in general in Iran. Without a doubt, being returned to Iran will highlight the fact that he is a draft evader". She adds [at 64] that the draft evasion will be flagged by consulate staff processing the travel document so that there is a real possibility that he would be arrested on arrival. There is no provision for conscientious objection in Iranian law. 'Missing conscripts' may be eligible for pardon if special circumstances apply; those circumstances are defined in Article 190 of the Procedural Regulations for the Conscription Code if the conscript has behaved in an exemplary manner during his service;

iii) As a Sunni Kurd the Appellant is more likely that other (Shia, ethnic Iranian) Iranians to suffer ill-treatment in detention. At 14: "The manner in which young Kurdish men are treated when detained has been widely reported in numerous international human rights reports. Use of force, beatings, ill treatment and even torture during interrogations undermine Iran's own national laws and international obligations". This remains true notwithstanding President Rouhani's promise of tangible socio-economic investment in Kurdish areas.

My Findings

29. My starting point for my consideration is the decision of Judge Ghani, promulgated over eleven years ago. That decision is an authoritative assessment of the Appellant's case as it stood at that date. I am entitled to take account of events that have occurred since that judgement. I can take into account any matter which occurred before the first appeal but that was not known to be relevant to the judgement. Where the witness seeks to introduce matters personal to him that he could have told the first judge and did not, this evidence should be treated with the greatest circumspection. In respect of objective material such as country background information, there is less need for caution, but I should remember that evidence relating to matters as they stood then will rarely if ever be determinative of matters as they stand today. If new evidence is adduced I should always consider whether there is some very good reason for its absence before the first tribunal. That is the guidance given in Devaseelan (Second Appeals - ECHR - Extra-Territorial Effect) Sri Lanka * [2002] UKIAT 00702.

30. I need not be concerned with whether the Appellant has sought to introduce new 'personal' evidence. His account has remained the same. He left Iran because the authorities were harassing his family on suspicion of support for the KDPI. His brother had left home to go to the mountains to fight with the peshmerga and the security forces appeared to know that. It had been common ground that such facts would give rise to a well-founded fear of persecution if they were true. The appeal was dismissed on the grounds that they were not. Judge Ghani gave three reasons for rejecting the Appellant's credibility as a witness.

31. The first was his failure to claim asylum in France, or indeed in any other safe third country that he might have passed through en route to the United Kingdom. There is no disputing that this was the route that the Appellant took, nor the effect of section 8 of the Asylum, Immigration (Treatment of Claimants etc) Act 2004. These were matters that evidently weighed heavily in the balance before Judge Ghani, who described the s.8 issues as casting "serious doubt" on the Appellant's credibility. Before me Ms Jaber pointed to the subsequent authority of JT (Cameroon) v Secretary of State for the Home Department [2008] EWCA Civ 878. Sitting some three years after Judge Ghani took her decision, the court held that the proper approach to s.8 issues would be to weigh them in the round as part of a global assessment of credibility. The statute does not require decision makers to find that s.8 behaviour would cast "serious doubt" on a claimant's credibility. Whilst that is correct, I am not satisfied that JT Cameroon would have changed the Tribunal's approach to s.8 in this case. The Appellant did not fail to claim asylum in France once, but twice: having been returned there by the British immigration authorities in early 2005 he stayed there a matter of weeks before returning and making his claim here. That was a matter that Judge Ghani was entitled to take a dim view of. As Pill LJ puts it in JT [at 21]: "Where section 8 matters are held to be entitled to some weight, the weight to be given to them is entirely a matter for the fact-finder".

32. The second ground that Judge Ghani gave for doubting the Appellant's credibility is the fact that he had apparently given "completely different" details in a screening interview in January 2005 to the ones he subsequently gave when claiming asylum for the second time in February of that year. I cannot know how different those details were, since the original refusal letter, as well as that screening interview, are not available. The determination does not set them out in any great detail. Before me the Appellant said that he could not really remember what he had said. He denies having said that he came to the United Kingdom to work, but as I understand it he acknowledges that some false details were given. That was plainly a matter that Judge Ghani was entitled to give weight to. It would have been perverse if she did not. Nothing in the evidence before me changes that matter.

33. The Devaseelan argument advanced before me concerns Judge Ghani's third reason. The Appellant's account of his father being arrested and subject to short detentions is rejected by Judge Ghani on the basis that such events were "implausible". Judge Ghani appears to give two reasons for so finding. The first is hard to understand. Having recorded the evidence that the father was accused, along with his sons, of giving succour to the KDPI [at 14-15], the Judge goes on to find it "implausible" that the authorities would not suspect the father along with the sons [at 44]. This is not an appeal against Judge Ghani's decision but for my part that analysis did appear to misunderstand the actual evidence. The central reason given however, and the focus of Ms Jaber's submissions, was the finding that it is "implausible" that the father would be subject to arrest in this way. The Appellant was unrepresented before Judge Ghani, and had spent much of the time since his arrival in detention. He had not therefore been able, or perhaps had not known that he should, produce a bundle of country background material. Ms Jaber directed me to several country reports which establish that the Iranian security forces operating against groups such as the KDPI will frequently use tactics such as this in order to put pressure on Kurdish families and to deter other young Kurds from joining the guerrillas. I need not refer to all of that evidence in detail since it is neatly summed up by Ms Kashefi in her report: "imputed political opinion and the arrest of family members in place of the suspect are common occurrence in dissent cases" [at 63]. She points out that in 2004 the Head of the Judiciary in Iran issued an ordinance aiming to prohibit the practice, an indication that it must have been widespread at that time. By May of 2005 the same Ayatollah was forced to concede that his ordinance had been widely ignored and that the "absolute injustice" of this method continued. I am satisfied that had this material been before Judge Ghani she could not have found, as she did, that it was "implausible" that the Appellant's father would have been detained in lieu of his son.

34. In this appeal I have to make a global assessment of all of the evidence before me. I weigh in the balance Judge Ghani's findings on s.8 and the Appellant's behaviour in the early months of 2005. For the sake of completeness I agree that these are matters that do damage his credibility. I now assess the new reasons advanced by the Respondent for rejecting the account. These are, primarily, the contention that the Appellant is not Iranian at all. Although it is not spelled out, it is presumably suggested that he is an Iraqi from across the mountainous border. The Respondent gives a number of reasons for her conclusion, and each of them is considered and addressed by Ms Kashefi in her report. The accuracy and objectivity of that report was before me challenged by Ms Isherwood, so it is appropriate to consider that matter at this juncture.

35. I have no concerns about Ms Kashefi's expertise. Her experience is set out at Annex 1 of her report and it is apparent that she has been commenting on, and researching, Iranian affairs for over twenty-five years. She is the head of the human rights committee of a well-respected international organisation and she clearly knows her subject. I have no concerns about her objectivity. Ms Isherwood submitted that the report attempts to assess the Appellant's credibility and to "make excuses" for his inability to, for instance, answer questions about the geography of Piranshahr. That is not how I read the report at all. Ms Kashefi sets out her understanding of the geography, and cultural norms, in Piranshahr and leaves it to me to assess whether the account is plausible in the context of that information. I find this to be a well-balanced and objective report. Ms Kashefi for instance endorses the findings of the Tribunal in SSH, notwithstanding that they are findings markedly unhelpful to the Appellant's case. Overall it is a report that I attach significant weight to. I now return to consideration of the Respondent's reasons for refusal.

36. First there is the issue of language. The Appellant speaks only a little Farsi and the Respondent considers this to be suspicious given that it is the national language of Iran and the only language taught in schools. The Appellant responds to this challenge by pointing to the conditions in rural Kurdistan. Ms Kashefi confirms his evidence that it is the norm in a tiny village such as his for children to leave school at an early age - he reckons that he had left by the age of seven - in order to help their families in the fields. This economic bar to education is compounded by what Ms Kashefi calls "inverted chauvinism" whereby some Kurdish families deliberately withdraw their children from school in protest at the Farsi only curriculum. I see no reason to reject her evidence on this matter. It seems to me that in the absence of any evidence that the Appellant instead speaks Arabic, his inability to speak Farsi is a neutral factor.

37. Next are matters of geography. Again, there would appear to be plausible explanations for each of the points made. The Appellant was asked at interview a number of questions about his claimed place of origin, Piranshahr. The refusal letter concludes that he incorrectly identified the province as 'Ormiyeh' when it should have been 'Piranshahr County'. Ms Kashefi notes that Oroumiyeh is the nearest main city. It is perhaps then understandable that he made that mistake. He could not name the local rivers. That is not a matter I attach a great deal of weight to; I consider it unlikely that many British people would be able to name rivers in their home county. He said the mountains were called the 'Gulurash' when they are actually the Zagros; in her report Ms Kashefi clarifies that the word he used was recorded as 'Qulrosh' , not the proper name for that range, but simply the word for 'mountains', 'Quo'rosh'. He named the currency as the 'toman' when country background evidence shows it to be the 'rial'. Ms Kashefi was able to helpfully point out that the 'touman' remains the term that most Iranians use today. In assessing the evidence on this point I have borne in mind the evidence that the Appellant was not educated beyond the age of seven, and that he led a relatively isolated existence in his home village. His lack of knowledge about matters such as administrative boundaries must be assessed in that context.

38. The only positive evidence that I have in respect of the Appellant's nationality is as follows. He has consistently stated that he is Iranian, and went so far as to write to the Iranian embassy requesting their assistance in getting him released from immigration detention. As Ms Kashefi notes, he writes using the Farsi alphabet as opposed to the Arabic (the 'P' in Piranshahr is not available in the Arabic script). He has managed, according to Ms Kashefi's analysis at least, to have answered a number of questions about Iran correctly. In addition to those matters mentioned above, he was able to identify his tiny village in Piranshahr, and the fact that Sardasht is to the south. Asked to name Iranian holidays he mentioned 'Sizdabedar', a custom celebrating the 13th day of the new year. Although it is also an ancient Kurdish tradition as far as Ms Kashefi is aware it is only Iranians who refer to it as 'Sizdabedar'. There is in contrast nothing at all to support the suggestion that he is Iraqi.

39. I have weighed all of that evidence in the round. I bear in mind the negative credibility findings reached by Judge Ghani. I am however satisfied that the Appellant has demonstrated that he an Iranian. It is a matter about which he has remained entirely consistent, including in his approach to the Iranian authorities. It seems to me unlikely that he would have contacted the wrong embassy at what he describes as being a point of desperation to get out of detention. He was able to give some accurate information about Iran, and those questions that he could not answer can be explained by his lack of education and the insular nature of the Kurdish community.

40. In conclusion I find that the appellant's account has remained consistent over the eleven year period that he has been recounting it. It is a relatively modest account of harassment, and I note that the Appellant does not, for instance, claim to have ever been arrested himself. It is an account that is entirely plausible in light of the country background material. Against that I weigh the fact that the Appellant sought to interfere with the proper maintenance of immigration control when he first arrived. It is accepted that he gave false identity details, presumably in an attempt to foil his third-country return to France. The fact that he refused to claim in France is further a matter that must be counted against him. Those matters notwithstanding, I am prepared to accept that sometime in 2004 the Appellant left Iran because his father was worried about what might happen to him. Local security forces were harassing the family because the Appellant's brother was believed - correctly - to have joined the peshmerga.

41. I must now assess where that finding leaves the Appellant in respect of a risk on return today. It is not suggested that the Appellant has any outstanding warrants against him, nor that his tangential and imputed involvement with the KDPI has led over the years to any great manhunt. Ms Jaber nevertheless relies on that past history, coupled with the Appellant's status as a draft-evading Kurd, to submit that there is a real risk of harm.

42. It has long been accepted that failed asylum seekers returned to Iran are questioned on arrival. That has been recently reaffirmed in SSH. It was the view of the Upper Tribunal that there is not a real risk of ill-treatment at that stage. It is accepted that if the individual left illegally, and returns without proper documents, he may be transferred to a particular court to be dealt with. On the evidence before the Tribunal in SSH there was not a real risk of harm at this stage, either. Although the penalty for illegal exit can as a matter of law be a period of imprisonment (which would necessarily entail a breach of Article 3) it is, in the vast majority of cases, a simple and relatively small fine. The difficulty only arises where the individual concerned has some outstanding business with the Iranian security forces, such as for instance, internet activism. The Appellant makes no claim to have engaged in such sur place activity. He submits however that the three factors identified by Ms Jaber [at 20 (a)-(c) above] will place him in that category of 'additional interest' such that the burden of proof will be discharged.

43. The Appellant relies on the evidence of Ms Kashefi. Her concern is that when he applies for his laissez-passer in London, the consulate staff will notice that he has not completed his military service. That message will be conveyed to Iran. When the Appellant arrives, his failure to report for duty will be assessed. The evidence before me indicated that 'missing conscripts' who are caught are arrested. They are generally then sent to enrol for military service; absent some exemplary conduct during that service, will then face their punishment for draft evasion at the end of the period served. This evidence appeared to relate to missing conscripts who are still of service age, ie between 18 and 34. There was some debate between the parties as to the effect of the Appellant's age today. At 36 he would not strictly speaking be liable for call-up, although I note Ms Jaber's submission that he may still be forced to serve. Even if that is not the outcome, I consider it to be highly unlikely that the security personnel charged with processing the Appellant's re-entry would overlook the fact that he did evade the draft. The fact that he has successfully managed to do so past his 35th birthday does not appear to me to be a good reason to suppose that arrest and penalty would not follow. Having had regard to the generality of the country background material - persistent discrimination against Kurds, a repressive state and endemic human rights abuses - I must consider the possibility that in the course of 'investigations' the Appellant would be subject to ill-treatment. I must also consider the possibility that during such investigations into how he managed to avoid the draft, the security services in his home area would be contacted, and that there may still, over a decade later, be records (or even living memories) connecting him to his KDPI brother. I have weighed all of these matters in the round. I find this to be a finely balanced case, but applying the lower standard of proof I am satisfied that there is a real risk of serious harm. That is because the Appellant is not simply a failed asylum seeker. He is someone with family connections to a banned political group and who has himself broken Iranian law by avoiding the draft. In those circumstances I find it to be reasonably likely that he would be ill-treated during detention and questioning.

Decisions

44. The determination of the First-tier Tribunal contained an error of law in respect of the asylum grounds of appeal. That decision was set aside in my decision attached.

45. The decision in the appeal is remade as follows:

"The appeal is allowed on asylum grounds.

The appeal is allowed on human rights grounds.

The Appellant is not entitled to humanitarian protection because he is a refugee".

46. There is an order for anonymity.

Upper Tribunal Judge Bruce
7th October 2016