Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00422/2020

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On the 22nd March 2022
On the 28th April 2022

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

OM + 4
(anonymity direction made)
Appellant
And

Secretary of State for the Home Department
Respondent

For the Appellant: Mr Sadiq, Adam Solicitors
For the Respondent: Mr Tan, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a Kurdish national of Iran, born in 1970. He seeks protection in the United Kingdom on the grounds that he has a well-founded fear of persecution in Iran for reasons of his political opinion/ethnicity. His dependents are his wife and three children.
Case History and Matters in Issue
2. The Appellant sought asylum on the 18th November 2018, the date that he claims to have arrived in the United Kingdom. The basis of his claim was that he was wanted by the Iranian security services for supporting the banned Kurdish group PJAK, but this was rejected first by the Secretary of State, then on appeal by the First-tier Tribunal (Judge Tully). Permission to appeal was refused by the Upper Tribunal. The Appellant became ‘appeal rights exhausted’ on the 12th April 2019. On the 25th September 2019 he made further submissions to the Home Office, which were treated as a ‘fresh claim’ for protection. They were nevertheless refused, and it is the lawfulness of that decision, dated the 20th December 2019 , that is before me today.
3. The substance of the Appellant’s fresh claim was what purported to be written confirmation from a leader of PJAK that the Appellant’s claimed association with the group, and the attendant adverse interest of the Iranian state, were true. He obtained this after approaching their offices in Belgium. He also produced some medical evidence of scarring and damage to his teeth. Importantly for this decision, the Appellant also relied on evidence of his sur place activities: he states that he has been a formal member of PJAK since 2018, and has attended various protests in the United Kingdom aimed at the Iranian authorities.
4. Whilst the Secretary of State accepted that these materials were capable of amounting to a ‘fresh claim’ for the purposes of paragraph 353 of the Immigration Rules, she was not satisfied that a real risk of persecution had been established. She viewed the letter from PJAK in the round with the fact that the Appellant’s credibility had previously been rejected by the First-tier Tribunal. He had not given an adequate explanation as to how he obtained the letter, nor why similar evidence had not been produced before. As for the photographs showing the Appellant at meetings and protests, the Respondent was not satisfied that the Iranian authorities would have any specific adverse interest in the Appellant.
5. The Appellant appealed against this decision and the matter came before First-tier Tribunal Judge Malik, who dismissed his appeal. Judge Malik agreed with the Secretary of State that the bona fides of the PJAK letter could not be confirmed; the medical evidence added nothing to the claim. As for the Appellant’s attendance at protests in the United Kingdom, Judge Malik placed only limited weight on the photographs provided. She noted that the Appellant appeared to be wearing the same clothing in all the pictures, and that there was nothing to suggest that the Appellant had taken a lead role at any of them. She further noted that two of the protests alleged to have been attended by the Appellant took place before the hearing before Judge Tully, and yet no reference had been made to them in the Appellant’s evidence at the time. Critically, Judge Malik was not satisfied that the Appellant’s attendance at any of these protests was anything other than a cynical attempt to bolster his asylum claim. She therefore concluded that if he was questioned by the Iranian authorities on his arrival in Iran he could simply tell them that: he could deny having any political opposition to the government and he would be permitted to go on his way.
6. The Appellant was granted permission to appeal to the Upper Tribunal upon renewed application. Upper Tribunal Judge Sheridan, in his order of the 27th January 2021, rejected grounds criticising Judge Malik’s approach to credibility generally, but he was satisfied that she had arguably erred in her approach to the sur place activities claimed by the Appellant. The arguable error was a failure to have regard to the relevant caselaw and principles.
7. On the 16th August 2021 the matter came before Upper Tribunal Judge Plimmer. Judge Plimmer noted that Judge Malik appears to have accepted that although the Appellant was not a genuine supporter of PJAK, he had attended at least four demonstrations in the UK. Judge Malik had concluded that if questioned upon his return to Iran the Appellant could simply tell the truth, and tell the Iranian security officers that he had been falsely manufacturing a claim for asylum. Of this reasoning, Judge Plimmer said this:
“When the headnotes of HB (Kurds) Iran CG [2018] UKUT 00430 (IAC) and SSH and HR (illegal exit: failed asylum seeker) Iran CG [2016] UKUT 308) are read with AB and Others (internet activity – state of evidence) Iran [2015] UKUT 257 (IAC) at [465] and [472] and BA (Demonstrators in Britain – risk on return) Iran CG [2011] UKUT 36 (IAC) at [65], it is clear that in the context of Kurds, the Iranian authorities are not particular concerned with motivation and the genuineness of political activities, but adopt a ‘hair-trigger’ approach. The country guidance demonstrates the following steps as being reasonably likely:
(i) As an illegal departee from Iran, the appellant will be questioned at the point of return to Iran - he will be returned without a passport, having never had any – see [97] of HB.
(ii) The initial questioning would be for a “fairly brief period” (at [12] of SSH the Internal Organisation for Migration considered that in the context of voluntary returnees, questioning might take a few hours).
(iii) If “particular concerns” arise from previous activities either in Iran or in the UK, then there is a real risk that there would be the risk of further questioning accompanied by ill-treatment. The assessment of whether “particular concerns” are likely to arise turns upon all the individual factors, considered cumulatively. However, as set out in HB, since 2016 the Iranian authorities have become increasingly suspicious of, and sensitive to, Kurdish political activity. Those of Kurdish ethnicity are thus regarded with even greater suspicion than hitherto and are reasonably likely to be subjected to heightened scrutiny on return to Iran. In addition, the Iranian authorities demonstrate a ‘hair-trigger’ approach to those suspected to be involved in Kurdish political activities i.e. the threshold for suspicion is low and the likely reaction extreme.
(iv) The appellant would be expected to tell “the truth” when questioned. The truth in this case has found to be this (i) the appellant’s Kurdish identity; (ii) he left Iran unlawfully and (iii) the FtT’s limited factual findings that he participated in a demonstration / meeting. (i) and (ii) are insufficient to support prospective risk or a reasonable degree of likelihood of “particular concerns” without more, and the FtT was therefore required to carefully assess the nature and extent of the appellant’s sur place activities, even if undertaken in bad faith. This is because the Iranian authorities will be less interested in the reasons or motivation for undertaking anti-regime sur place activities.
The FtT found the appellant to not have been “actively demonstrating” against the Iranian regime albeit accepted he was present at a demonstration / meeting. The FtT has not explained why this would be insufficient to justify further questioning of the appellant by reference to HB, wherein the Tribunal accepted that merely being involved “with any organised activity on behalf of or in support of Kurds can be perceived as political and thus involve a risk of adverse attention by the Iranian authorities with the consequent risk of persecution or Article 3 ill-treatment” – see headnote 8 of HB.
The suggestion that a “truthful account” will not give rise to risk is difficult to follow in the context of the country guidance in HB (threshold for suspicion low and likely reaction extreme) and this specific appellant. He will be questioned on return. He is expected to tell the truth but may very well be inclined to lie to protect himself from suspicion. He has already been found to be dishonest by the respondent and two FtTs. There is no reason to think that he would be any more successful in his efforts to deceive the immigration authorities in Iran. He can be expected to be asked about any political activity in which he was involved and he will not know how much the Iranian authorities know about even his mere attendance at a demonstration / meeting. There is no direct evidence that they have photographed him or otherwise recorded him or any way of identifying him but the doubt must be there. He risks much by making a flat denial of any political involvement and cannot be expected to do that. He is somebody who faces a real risk of being interrogated. The FtT has not engaged with these matters”.
8. Those being her findings, Judge Plimmer set the decision of Judge Malik, insofar as it related to the Appellant’s sur place activities, aside to be remade. Acting Principal Resident Judge Kopieczek signed a transfer order on the 9th March 2022 and this is how the matter comes before me.

The Re-Made Decision
9. The facts have already been found, or to some extent accepted by the Respondent. The factual matrix I must consider in my risk assessment is as follows:
The Appellant is an Iranian of Kurdish ethnicity (accepted in refusal letter dated 20th December 2019)
He is from Barava village in Marivan province, adjacent to the border with Iraq (Screening interview, uncontested)
He is of the Jaff tribe and attended Naqshbandi (Sunni/Sufi sect) mosque (Screening interview, uncontested)
The Appellant was not involved in politics in Iran (findings of Judge Tully, decision dated 7th February 2021)
He has not given a credible account of arrest by the Etelaat (findings of Judge Tully, decision dated 7th February 2021)
He left Iran on the 20th August 2015 and has not been back since (Screening interview, uncontested)
He left Iran illegally (findings of Judge Tully, decision dated 7th February 2021)
He arrived in the UK with his wife and children on the 18th November 2016 (Home Office records)
The Appellant is not a genuine supporter of PJAK (findings of Judge Malik, decision dated the 20th October 2020)
The Appellant has attended a number of demonstrations in the UK (findings of Judge Malik, decision dated the 20th October 2020) and can be seen in photographs of these protests holding flags and placards (before me Mr Tan accepted that the individual depicted in the photographs is in fact the Appellant).
10. I have examined the evidence relating to the Appellant’s attendance at anti-government protests myself. There is nothing obvious on the face of the photographs which could confirm the dates that the Appellant has given for these various events, which he claims to be seven in total. I note Judge Malik’s observation that the Appellant is wearing the same clothes in a number of the pictures – a dark gilet over a checked shirt. I also note however that in at least two of these, he is evidently on a different demonstration since one of the pictures is taken in Manchester’s Piccadilly Gardens, whereas others are clearly outside the Iranian embassy in London. I can see the following from the pictures. That the Appellant is variously depicted waving a Kurdish flag, standing on what appears to be the photograph of an unidentifiable Iranian cleric/Ayatollah, holding a placard depicting the martyred Kurdish leader Qazi Mohammad, and an A4 flyer. As I say, it can be seen that some are taken in London, some in Manchester and in at least one, what appears to be Glasgow. There are another series which show meetings. In one of these the Appellant can be seen standing at a podium, and in another he is seated around a large conference table with other men. I would observe that everyone in these pictures is male, something of a peculiarity considering PJAK is known for its high number of female fighters and its overtly feminist policies; it may be that the anomalous demographic of these sur place activists is simply reflective of those who leave Iran and those who stay behind. I am unable to say how many events there are in total, but I am prepared to proceed on the accepted basis that it is at least four demonstrations plus at least one meeting.
11. Against that background, and having particular regard to the country guidance, I make the following risk assessment.
12. The Appellant left Iran illegally. He would therefore be required to obtain an emergency travel document (laissez passer) from the Iranian authorities before he travelled back to Iran: SSH and HR (illegal exit: failed asylum seeker) Iran CG [2016] UKUT 308. The evidence given by country expert Dr Kakhki in SSH, and accepted by the Tribunal, was that the embassy would conduct a security check into the “kind of activities” the applicant has been involved in outside of Iran. The results of those checks would not result in a refusal to re-document the individual, but they would instead be passed on to the security services in Iran.
13. In BA (Demonstrators in Britain – risk on return) Iran CG [2011] UKUT 36 (IAC) the Tribunal identified the following factors as being relevant to whether sur place activity might create a ‘risk profile’ for an individual faced with forcible return to Iran. The nature of the activity will be relevant: demonstrations in favour of the violent overthrow of the regime are likely to be more risky than a reformist position. I note that PJAK is behind an armed insurgency. The individual’s role in any event is also important. Here I note that whilst the Appellant does not claim to have been a speaker at any of the protests, he is depicted behind the podium at a meeting. In his witness statement he explains that at this event each participant was required to stand and state his support for the movement. I also note that in each of the photographs he can be seen holding a flag, banner or placard. The number of events attended is an obvious risk factor, not least because it would increase the chances of coming to the attention of the Iranian authorities, who deploy agents to infiltrate such events, and at least in the case of the protests outside the London embassy, routinely film them and photograph attendees. I accept that the Appellant has attended at least four demonstrations and at least one meeting in Manchester. The next factor is publicity. Although I can see from one of the photographs that the Appellant is being interviewed by a reporter holding a microphone, he has not claimed that the protests he attended attracted any particular media coverage.
14. We know that the Appellant will be questioned upon return to Iran. As Judge Plimmer notes, the initial interview is for a “fairly brief period” (see [12] pf SSH): a few hours at most, and it will not entail serious harm. If however there are “particular concerns” arising from the interview, there is a real risk that the Appellant will be transferred for further questioning. In HB (Kurds) Iran CG [2018] UKUT 00430 (IAC) the Tribunal held that since 2016 the Iranian authorities have become increasingly suspicious of, and sensitive to, Kurdish political activity. Those of Kurdish ethnicity are thus regarded with even greater suspicion than hitherto and are reasonably likely to be subjected to heightened scrutiny on return to Iran. This does not mean that every Kurd will be transferred for second line questioning. It does mean that Kurdish ethnicity is a factor which combined with other matters, may create a risk of persecution. Being perceived to have regularly participated in anti-regime activities in the UK could be such a factor. Importantly, the Tribunal notes that Kurds involved in Kurdish political groups or activity are at risk of arrest, prolonged detention and physical abuse by the Iranian authorities. Even Kurds expressing peaceful dissent or who speak out about Kurdish rights also face a real risk of persecution or Article 3 ill-treatment. Activities that can be perceived to be political by the Iranian authorities include social welfare and charitable activities on behalf of Kurds. Indeed, involvement with any organised activity on behalf of or in support of Kurds can be perceived as political and thus involve a risk of adverse attention by the Iranian authorities with the consequent risk of persecution or Article 3 ill-treatment. Even ‘low-level’ political activity, or activity that is perceived to be political, such as, by way of example only, holding a placard at a protest, would if discovered, lead to a risk of persecution or Article 3 ill-treatment.
15. The central conclusion reached by the Tribunal in HB is that the Iranian authorities demonstrate what could be described as a ‘hair-trigger’ approach to those suspected of or perceived to be involved in Kurdish political activities or support for Kurdish rights. By ‘hair-trigger’ it means that the threshold for suspicion is low and the reaction of the authorities is reasonably likely to be extreme.
16. Drawing all of that together I conclude as follows. The Appellant will not face a real risk of harm returning to Iran because he is Kurdish, or because he left Iran illegally, nor even because of a combination of those things. The crux of the case is his sur place involvement with PJAK-inspired, or possibly PJAK-organised, protests in London. That is because the Appellant will, in the initial on-arrival questioning in Tehran, have a choice to make: should be admit his attendance at these events whilst disavowing any allegiance to PJAK, or conceal the truth?
17. If the Appellant opts for the latter option, he will be taking a big gamble. As Judge Plimmer observes in her decision, he will have to count on his presence at the protests having gone unnoticed by the Iranian security services. The protests he has attended do not appear to be so big that surveillance would be hopeless. Given what is said in the country guidance cases I accept that there is a real risk that the staff in the Iranian Embassy have photographs of the crowd outside, waving Kurdish flags and PJAK placards. I also accept that PJAK meetings are precisely the sort of event that would be targeted by agents for infiltration. These are realities that the Appellant will have to weigh in the balance, and I agree with Judge Plimmer that he may well be too worried to lie: afterall if he does deny his involvement, and the Iranians have in fact identified him, he is facing very serious problems since his protestations that his attendance was cynical would then stand little to no prospect of acceptance.
18. If then he chooses to take the more sensible option, and tell the truth, what would the consequences be? Mr Sadiq submits, and I accept, that the most likely outcome would be a transfer for further questioning. As the Tribunal identify in SSH the whole point of this second line of questioning would be to investigate particular concerns that emerge from the initial interview. I am quite satisfied that being a Kurd who had attended PJAK inspired protests in the UK would be enough to raise a “particular concern”. Mr Tan rightly reminded me that such a transfer does not automatically entail ill-treatment. In SSH the Tribunal did no more than hold that there would “be a risk of further questioning, detention and potential ill-treatment” (emphasis added). Indeed in PS (Christianity - risk) Iran CG [2020] UKUT 00046 (IAC) we found that disingenuous Christian converts would be released at this point after doing no more than signing an undertaking. It is therefore possible to leave second-line questioning without experiencing any persecutory ill-treatment at all.
19. The determinative question in this appeal is therefore this: if during the course of second-line questioning the Appellant denies any genuine support for PJAK will he nevertheless face a real risk of serious harm? In light of the decision in HB I must conclude that he would. The evidence and conclusions in that case indicate that there is a particular sensitivity in respect of Kurdish nationalism, and PJAK attracts even greater adverse scrutiny from the Iranian government because it also advances a secular agenda, which as I note above, specifically promotes women’s rights and equality. Unlike the Christian converts considered in PS, who have something of a shield from routine ill-treatment because of international attention, the Kurds of Iran do not enjoy such vocal support. Given the “hair trigger” approach to Kurdish political opposition, there is a reasonable likelihood that the Appellant would be exposed to persecutory ill-treatment for his “support” for PJAK, even if that support is entirely cynical.
Anonymity Order
20. The Appellant is a refugee. In considering whether to make an anonymity order I have had regard to the Guidance Note 2022 No 2: Anonymity Orders and Hearings in Private, paragraph 28 of which reads:
In deciding whether to make an anonymity order where there has been an asylum claim, a judge should bear in mind that the information and documents in such a claim were supplied to the Home Office on a confidential basis. Whether or not information should be disclosed, requires a balancing exercise in which the confidential nature of the material submitted in support of an asylum claim, and the public interest in maintaining public confidence in the asylum system by ensuring vulnerable people are willing to provide candid and complete information in support of their applications, will attract significant weight. Feared harm to an applicant or third parties and "harm to the public interest in the operational integrity of the asylum system more widely as the result of the disclosure of material that is confidential to that system, such confidentiality being the very foundation of the system's efficacy" are factors which militate against disclosure. See R v G [2019] EWHC Fam 3147 as approved by the Court of Appeal in SSHD & G v R & Anor [2020] EWCA Civ 1001.
21. In light of that guidance I am satisfied that it would be appropriate to make an order in the following terms, pursuant to 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, any of his witnesses 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”
Decisions
22. The decision of the First-tier Tribunal is set aside.
23. The decision in the appeal is remade as follows: the appeal is allowed on protection and human rights grounds.
24. There is an order for anonymity.

Upper Tribunal Judge Bruce
27th March 2022