JR/02323/2013
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- Status of case: Unreported
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The decision
IAC-FH-LW-V1
IN THE UPPER TRIBUNAL
EXTEMPORE JUDGMENT GIVEN FOLLOWING HEARING
JR/2323/2013
Field House,
Breams Buildings
London
EC4A 1WR
21 December 2016
The QUEEN
(ON The application OF)
Farooq [Q]
Applicant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Before
THE HONOURABLE MR JUSTICE COLLINS
- - - - - - - -
Ms B Poynor, Counsel, instructed by Barnes Harrild & Dyer Solicitors appeared on behalf of the Applicant.
Mr Z Malik, Counsel, instructed by the Government Legal Department appeared on behalf of the Respondent.
- - - - - - - - - - - - -
ON AN APPLICATION FOR JUDICIAL REVIEW
APPROVED JUDGMENT
- - - - - - - - - - - - -
MR JUSTICE COLLINS:
1. This is an application for judicial review of the decision of the Secretary of State made as long ago as 7 March 2013 whereby what was submitted as a fresh claim by the applicant was rejected.
2. The applicant himself is Iranian of Kurdish ethnicity. He came to this country originally and claimed asylum on the basis that he was an active supporter of the PJAK and had been arrested in July 2009 and had been, he said, tortured in detention.
3. His claim based on that was rejected by both the Secretary of State and on appeal by an Immigration Judge who essentially found that the entirety of his account was a fabrication, save that he was Iranian and of Kurdish ethnicity, and the Immigration Judge found that he would be of no interest to the Iranian authorities or anyone on return to Iran.
4. The fresh claim was made on the basis essentially, or supported by, a report from Professor Joffe who is accepted to be an expert in relation to Iran. That report was in general terms and was provided not for this applicant, but the applicant's solicitors had obtained consent that it be used in this claim. Essentially, what was being said was that the fact that he was someone who had left Iran illegally and had claimed asylum here and needed documentation which had to be provided from the Iranian Embassy here, meant that he would be, if a Kurd, of interest to the authorities and would be liable to be detained at least on return.
5. Any political activities were not necessary to create that risk, although it must be obvious that if there were any political activities the chances of action against the individual by the Iranian authorities was substantially increased and it is accepted that anyone who is in the hands of the Iranian authorities on the basis that there is a belief that he may be someone who is essentially an enemy of the state meant that the chances of substantial ill-treatment and persecution were all too likely, and that certainly there would be a real risk.
6. The refusal letter was largely based upon the assertion that there was no risk because he was not a political activist having regard to the findings of the Immigration Judge. That it was submitted, and I accept to a large extent, missed the point. The application letter was lengthy and diffuse and it maybe did not spell out as clearly as it should the basis upon which the claim was now being made, but Professor Joffe's report did speak for itself and did indicate that there was in his view a risk by virtue merely of Kurdish ethnicity.
7. The situation inevitably and as is well-known in that part of the world has moved on in the last three years. There has now been too a fresh country guidance case which was handed down this year. That was concerned with whether there was a risk on return for those who left illegally and who needed the necessary documentation from the Embassy here. The decision reached in that case in country guidance terms was that there was no real risk in those circumstances. I gather that the applicants in that case were Kurds, but the risk on the basis of Kurdish ethnicity and the evidence to that effect from Professor Joffe was not before the Tribunal, and accordingly it is now submitted that that country guidance case cannot be regarded as reliable in dealing with the situation that arises here, namely the risk that there may be to those of Kurdish ethnicity.
8. There is an added factor which I am bound to say I am surprised has not been taken into account and that is that it was the applicant's claim that his uncle was involved with the PJAK as a supporter of it. That, the Immigration Judge did not reject as being necessarily untrue, and if there is evidence that family of an individual was involved politically in a way which was not considered appropriate by the regime, then that might have an ongoing effect.
9. It seems to me, in all the circumstances, for reasons that I have indicated that the 2013 decision is one which now cannot stand and was, in any event, even on the basis of what was before the Secretary of State then, one which was flawed. Obviously, the Immigration Judge granting permission was right to focus on the alleged defects that he did.
10. In those circumstances I propose to quash that decision. I do not say that the reconsideration which in fairness the Secretary of State recognises is something that should occur, albeit not on the basis that the original decision was flawed, but merely on the basis that times have moved on, and it is right to consider the situation as it exists now, and that therefore there was no need to quash the original decision. I have, I think, indicated, I do not agree, but I do not go further and say that there is now no possible outcome other than that it must be regarded as a fresh claim, but it is necessary that the applicant now puts before the Secretary of State all that he wishes to be taken into account in reaching the final decision on what he is submitting is a fresh claim. It may be that it would be desirable, indeed I think certainly it would be desirable that if possible Professor Joffe gives a supplementary report which is based upon this particular applicant rather than merely a general report as to what in his view might occur.
11. Obviously, there must be a reasonable time given for any submissions to be made, and what I propose to do therefore is to direct that any further application or any further material is put before the Secretary of State by the end of next month. The Secretary of State of course will then take such time (one hopes not too long) to make a decision based upon that, so to that extent this application succeeds.
Costs
12. The applicant's representatives to put their submissions in writing and to serve a schedule of costs by no later than 20 January 2017.
13. The respondent to respond on liability and quantum. ~~~~0~~~~
UTIJR6
JR/2323/2013
Upper Tribunal
Immigration and Asylum Chamber
Judicial Review Decision Notice
The Queen on the application of
Farooq [Q]
Applicant
v
Secretary of State for the Home Department
Respondent
Before Mr Justice Collins sitting as a Judge of the Upper Tribunal
Application for judicial review: substantive decision
Having considered all documents lodged and having heard the parties' respective representatives, Mr B Poynor, of Counsel, instructed by Barnes Harrild & Dyer Solicitors, on behalf of the Applicant and Mr Z Malik of Counsel, instructed by the Government Legal Department, on behalf of the Respondent, at a hearing at Field House, London on 21st December 2016.
Order
(1) The application succeeds and the decision of 7 March 2013 is quashed.
(2) The applicant must make any submissions to the defendant and serve a schedule of costs by 20 January 2017.
Reasons
In the judgment annexed.
Signed:
The Honourable Mr Justice Collins
Dated: 21 December 2016
Applicant's solicitors:
Respondent's solicitors:
Home Office Ref:
Decision(s) sent to above parties on:
-----------------------------------------------------------------------------------------------------------------------------------------------------
Notification of appeal rights
A decision by the Upper Tribunal on an application for judicial review is a decision that disposes of proceedings.
A party may appeal against such a decision to the Court of Appeal on a question of law only. Any party who wishes to appeal should apply to the Upper Tribunal for permission, at the hearing at which the decision is given. If no application is made, the Tribunal must nonetheless consider at the hearing whether to give or refuse permission to appeal (rule 44(4B) of the Tribunal Procedure (Upper Tribunal) Rules 2008).
If the Tribunal refuses permission, either in response to an application or by virtue of rule 44(4B), then the party wishing to appeal can apply for permission from the Court of Appeal itself. This must be done by filing an appellant's notice with the Civil Appeals Office of the Court of Appeal within 28 days of the date the Tribunal's decision on permission to appeal was sent (Civil Procedure Rules Practice Direction 52D 3.3).
IN THE UPPER TRIBUNAL
EXTEMPORE JUDGMENT GIVEN FOLLOWING HEARING
JR/2323/2013
Field House,
Breams Buildings
London
EC4A 1WR
21 December 2016
The QUEEN
(ON The application OF)
Farooq [Q]
Applicant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Before
THE HONOURABLE MR JUSTICE COLLINS
- - - - - - - -
Ms B Poynor, Counsel, instructed by Barnes Harrild & Dyer Solicitors appeared on behalf of the Applicant.
Mr Z Malik, Counsel, instructed by the Government Legal Department appeared on behalf of the Respondent.
- - - - - - - - - - - - -
ON AN APPLICATION FOR JUDICIAL REVIEW
APPROVED JUDGMENT
- - - - - - - - - - - - -
MR JUSTICE COLLINS:
1. This is an application for judicial review of the decision of the Secretary of State made as long ago as 7 March 2013 whereby what was submitted as a fresh claim by the applicant was rejected.
2. The applicant himself is Iranian of Kurdish ethnicity. He came to this country originally and claimed asylum on the basis that he was an active supporter of the PJAK and had been arrested in July 2009 and had been, he said, tortured in detention.
3. His claim based on that was rejected by both the Secretary of State and on appeal by an Immigration Judge who essentially found that the entirety of his account was a fabrication, save that he was Iranian and of Kurdish ethnicity, and the Immigration Judge found that he would be of no interest to the Iranian authorities or anyone on return to Iran.
4. The fresh claim was made on the basis essentially, or supported by, a report from Professor Joffe who is accepted to be an expert in relation to Iran. That report was in general terms and was provided not for this applicant, but the applicant's solicitors had obtained consent that it be used in this claim. Essentially, what was being said was that the fact that he was someone who had left Iran illegally and had claimed asylum here and needed documentation which had to be provided from the Iranian Embassy here, meant that he would be, if a Kurd, of interest to the authorities and would be liable to be detained at least on return.
5. Any political activities were not necessary to create that risk, although it must be obvious that if there were any political activities the chances of action against the individual by the Iranian authorities was substantially increased and it is accepted that anyone who is in the hands of the Iranian authorities on the basis that there is a belief that he may be someone who is essentially an enemy of the state meant that the chances of substantial ill-treatment and persecution were all too likely, and that certainly there would be a real risk.
6. The refusal letter was largely based upon the assertion that there was no risk because he was not a political activist having regard to the findings of the Immigration Judge. That it was submitted, and I accept to a large extent, missed the point. The application letter was lengthy and diffuse and it maybe did not spell out as clearly as it should the basis upon which the claim was now being made, but Professor Joffe's report did speak for itself and did indicate that there was in his view a risk by virtue merely of Kurdish ethnicity.
7. The situation inevitably and as is well-known in that part of the world has moved on in the last three years. There has now been too a fresh country guidance case which was handed down this year. That was concerned with whether there was a risk on return for those who left illegally and who needed the necessary documentation from the Embassy here. The decision reached in that case in country guidance terms was that there was no real risk in those circumstances. I gather that the applicants in that case were Kurds, but the risk on the basis of Kurdish ethnicity and the evidence to that effect from Professor Joffe was not before the Tribunal, and accordingly it is now submitted that that country guidance case cannot be regarded as reliable in dealing with the situation that arises here, namely the risk that there may be to those of Kurdish ethnicity.
8. There is an added factor which I am bound to say I am surprised has not been taken into account and that is that it was the applicant's claim that his uncle was involved with the PJAK as a supporter of it. That, the Immigration Judge did not reject as being necessarily untrue, and if there is evidence that family of an individual was involved politically in a way which was not considered appropriate by the regime, then that might have an ongoing effect.
9. It seems to me, in all the circumstances, for reasons that I have indicated that the 2013 decision is one which now cannot stand and was, in any event, even on the basis of what was before the Secretary of State then, one which was flawed. Obviously, the Immigration Judge granting permission was right to focus on the alleged defects that he did.
10. In those circumstances I propose to quash that decision. I do not say that the reconsideration which in fairness the Secretary of State recognises is something that should occur, albeit not on the basis that the original decision was flawed, but merely on the basis that times have moved on, and it is right to consider the situation as it exists now, and that therefore there was no need to quash the original decision. I have, I think, indicated, I do not agree, but I do not go further and say that there is now no possible outcome other than that it must be regarded as a fresh claim, but it is necessary that the applicant now puts before the Secretary of State all that he wishes to be taken into account in reaching the final decision on what he is submitting is a fresh claim. It may be that it would be desirable, indeed I think certainly it would be desirable that if possible Professor Joffe gives a supplementary report which is based upon this particular applicant rather than merely a general report as to what in his view might occur.
11. Obviously, there must be a reasonable time given for any submissions to be made, and what I propose to do therefore is to direct that any further application or any further material is put before the Secretary of State by the end of next month. The Secretary of State of course will then take such time (one hopes not too long) to make a decision based upon that, so to that extent this application succeeds.
Costs
12. The applicant's representatives to put their submissions in writing and to serve a schedule of costs by no later than 20 January 2017.
13. The respondent to respond on liability and quantum. ~~~~0~~~~
UTIJR6
JR/2323/2013
Upper Tribunal
Immigration and Asylum Chamber
Judicial Review Decision Notice
The Queen on the application of
Farooq [Q]
Applicant
v
Secretary of State for the Home Department
Respondent
Before Mr Justice Collins sitting as a Judge of the Upper Tribunal
Application for judicial review: substantive decision
Having considered all documents lodged and having heard the parties' respective representatives, Mr B Poynor, of Counsel, instructed by Barnes Harrild & Dyer Solicitors, on behalf of the Applicant and Mr Z Malik of Counsel, instructed by the Government Legal Department, on behalf of the Respondent, at a hearing at Field House, London on 21st December 2016.
Order
(1) The application succeeds and the decision of 7 March 2013 is quashed.
(2) The applicant must make any submissions to the defendant and serve a schedule of costs by 20 January 2017.
Reasons
In the judgment annexed.
Signed:
The Honourable Mr Justice Collins
Dated: 21 December 2016
Applicant's solicitors:
Respondent's solicitors:
Home Office Ref:
Decision(s) sent to above parties on:
-----------------------------------------------------------------------------------------------------------------------------------------------------
Notification of appeal rights
A decision by the Upper Tribunal on an application for judicial review is a decision that disposes of proceedings.
A party may appeal against such a decision to the Court of Appeal on a question of law only. Any party who wishes to appeal should apply to the Upper Tribunal for permission, at the hearing at which the decision is given. If no application is made, the Tribunal must nonetheless consider at the hearing whether to give or refuse permission to appeal (rule 44(4B) of the Tribunal Procedure (Upper Tribunal) Rules 2008).
If the Tribunal refuses permission, either in response to an application or by virtue of rule 44(4B), then the party wishing to appeal can apply for permission from the Court of Appeal itself. This must be done by filing an appellant's notice with the Civil Appeals Office of the Court of Appeal within 28 days of the date the Tribunal's decision on permission to appeal was sent (Civil Procedure Rules Practice Direction 52D 3.3).