Tribunal decisions

The decision

IAC-AH-sar-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01607/2015

THE IMMIGRATION ACTS

Heard at Liverpool
Decision & Reasons Promulgated
On 16 January 2017
On 10 February 2017

Before

UPPER TRIBUNAL JUDGE SMITH

Between

A M
(ANONYMITY DIRECTION MADE)
Appellant

and

THE SECRETARY OF STATE FOR the HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Schwenk, Counsel instructed by Broudie Jackson & Canter Solicitors
For the Respondent: Mrs Aboni, Senior Home Office Presenting Officer

Anonymity

Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Although an anonymity order was not made by the First-tier Tribunal, as this is a protection claim and in light of my decision it is appropriate to make that order.

DECISION AND REASONS

Background
1. The Appellant appeals against a decision of First-tier Tribunal Judge D. Alty promulgated on 15 July 2016 ("the Decision") dismissing the Appellant's appeal against the Secretary of State's decision dated 25 September 2015 refusing his protection and human rights claims.
2. The Appellant is accepted to be a national of Iran of Kurdish ethnicity. He came to the UK on 10 June 2015 and claimed asylum on the same day.
3. The Appellant's asylum claim is based essentially on three elements. The first is that he worked as an illegal border trader ("kolbar") smuggling goods between Iran and Iraq. The goods which he smuggled included alcohol. He claimed to have been arrested in the past in relation to his activities and claims that the authorities were looking once again to detain him based on information provided by his stepmother. It is at that point that he claims he left Iran. The second reason for his claim is that he is an atheist having renounced his Muslim religion. The third element is his Kurdish ethnicity and the fact that he is opposed to the regime.
4. The core of the Appellant's claim was rejected by the First-tier Tribunal Judge, although I will need to deal further below with the extent to which it was found not credible. Based on the credibility findings however, the First-tier Tribunal Judge found that, although the Appellant would be questioned on return, that questioning would not lead to any heightened interest by the Iranian authorities and he would not therefore face detention. The Appellant was therefore held not to be in the category of persons who were considered to be at risk of detention and at a real risk of persecution in the recent country guidance case of SSH and HR (illegal exit: failed asylum seeker) Iran CG [2016] UKUT 00308 (IAC) ("SSH").
5. Permission to appeal was granted by First-tier Tribunal Judge Grimmett on 9 September 2016. The matter comes before me to decide whether the Decision contains a material error of law and if so, to re-make the Decision or remit the appeal for rehearing to the First-tier Tribunal.
Grounds and Submissions
6. Mr Schwenk who appeared for the Appellant accepted that the Appellant cannot claim to be at real risk solely by reason of his illegal exit, his Kurdish ethnicity or as a failed asylum seeker. So much is clear from the guidance in SSH. However, he submitted that the potential for risk in this case is based on the Appellant's profile. It is in relation to that profile that the Decision is challenged on the basis that there are insufficient findings or an inadequacy of reasons.
7. Ground two as pleaded relates to the Appellant's occupation as a smuggler of alcohol. Mr Schwenk took me to the Reasons for Refusal Letter in which the Respondent accepted that there would be ill-treatment of those caught smuggling. He submitted that it was therefore accepted that the Appellant would be ill-treated if he was in fact accepted to be a smuggler.
8. Mr Schwenk accepted that the Judge found that the Appellant had not suffered ill-treatment in the past and had not been detained on account of his occupation. However, he submitted that there was no clear finding by the Judge in relation to whether the appellant was or was not a smuggler. The guidance in SSH shows that the Appellant would be likely to be questioned on return. The point of that questioning would be to ascertain whether the Appellant has opinions which oppose the regime or has been engaged in activities of which the authorities disapprove. The Judge failed to make any finding as to whether the Appellant was a smuggler and therefore does not adequately deal with the question of his profile and the risk which that presents.
9. In response to that ground Mrs Aboni submitted that although the Judge had failed to make an express finding as to whether the Appellant was a smuggler, it was implicit in the findings from [26] and [32] of the Decision that this was not accepted. The Appellant's core claim was disbelieved.
10. In reply, Mr Schwenk repeated his submission that although the core of the claim was disbelieved the Judge has not gone so far as to find the Appellant's statement that he was a kolbar is not credible. Mr Schwenk pointed in particular to what is said at [26] about the claim being consistent with the background evidence.
11. The second ground (ground one as pleaded) relates to the Appellant's profile as an atheist. In this regard Mr Schwenk handed in an extract from the "Country Information and Guidance Iran: Christians and Christian Converts" dated 2015. He pointed to the extract which states that the Iranian Constitution does not provide for the rights of Muslim citizens to choose, change or renounce their religious beliefs. Mr Schwenk accepted that this country information was not before the Judge. He was also unable to direct my attention to anything in the Decision which showed that a submission was made that the Appellant would be at real risk on this account. Although this finds mention at [25] of the Decision, that is amalgamated with the risk based on Kurdish ethnicity. There does not appear to have been a skeleton argument before the First-tier Tribunal Judge and no submission is recorded in this regard. It is however fair to note that the Appellant himself says in his witness statement at [42] that the fact of his atheism would make things worse if the Iranian authorities were to find out and he refers to his answers to two questions in the course of his asylum interview about this risk.
12. In response, Mrs Aboni submitted that there was nothing to suggest that the Appellant's atheism would come to the attention of the authorities on return and nothing to show that atheism per se puts a person at risk; merely being an atheist would not be a risk factor. In response to that submission, Mr Schwenk repeated his reference to the Country Information and Guidance which he said suggests the opposite.
13. The third element relates to the Appellant's political views as a Kurd. Mr Schwenk directed my attention to [20] of the Appellant's witness statement in which the Appellant asserts that he holds anti-regime opinions.
14. In response, Mrs Aboni pointed out that the Tribunal in SSH held that Kurdish ethnicity of itself did not put a person at risk and the Appellant's opposition to the regime is stated in very vague terms.
Discussion and Conclusions
15. Ground one concerns the Appellant's assertion that he is at risk on account of his atheism. The Judge notes at [20(a)] the Appellant's assertion that he is an atheist. The Judge was therefore aware that this was part of his case. I have already referred to the reference to this in the Appellant's witness statement. All that the Appellant says in that regard is the fact that he is an atheist would make things worse if the Iranian authorities were to find out. That is expanded upon to a limited extent in the answers in the asylum interview to which he makes reference in his statement. The Appellant's case is that he was an atheist when he was previously in Iran. In answer to question [15], the Appellant said that he had not suffered any problems because of his religion previously other than from his father. He did note in answer to question [16] that this was because the authorities did not know that he was an atheist. He says that if it became common knowledge he would be classed as an infidel and would be executed. He drew a distinction between not praying and not believing. He says in answer to question [19] that he falls into the latter category. He accepts in response to question [21] that if he did not tell the authorities about his renunciation of Islam they would not know.
16. The Judge's finding in this regard is combined with the finding in relation to the appellant's Kurdish ethnicity (ground three). At [25] the Judge says as follows:
"In respect of the Appellant's atheism and Kurdish ethnicity, I find that the Appellant has not substantiated his claim to be at real risk. In general, the level of discrimination faced by Kurds in Iran is not persecutory nor does it give rise to inhuman or degrading treatment. It could affect how the Appellant is treated on return by the authorities. I deal with risk at the 'pinch point' of return below".
17. I accept that there is no express finding in the Decision that the Appellant is not to be believed in relation to his renunciation of Islam. However, I also note that the judge was not taken to background evidence to show that as an atheist he would be ill-treated by the authorities. Mr Schwenk accepted that the Country Information and Guidance to which he referred me was not before the Judge. The Appellant himself says that the authorities have not become aware that he is an atheist and there is no background evidence to suggest that this would be suspected or questions asked about it at the point of return.
18. In relation to the Appellant's Kurdish ethnicity and political beliefs (as Mr Schwenk described them), the Appellant's statement is extremely vague. He says at [20] of his statement, following his evidence that he resumed activities as a smuggler:
"As a Kurd there are so few opportunities. We are not allowed to be educated in our own language, we are discriminated against when looking for proper jobs. The government do not like Kurds, so they make life as hard as possible for us. Because of the way they treat us, I do not support the government and would like to see Kurdish independence".
19. That does not, as such, suggest that the Appellant has had any involvement in the Kurdish independence movement. He does not say that he has. There is no suggestion that he has come to the attention of the authorities on that account. As the Judge points out at [25], generally the level of discrimination which Kurds in Iran face is not persecutory and does not give rise to inhuman or degrading treatment.
20. For those reasons, I am satisfied that the findings which the Judge makes in relation to grounds one and three based on the evidence before her were open to her and do not disclose an error of law. Unless it could be said that the Appellant would otherwise be at risk of attracting the adverse interest of the authorities at the point of return, I am satisfied that it cannot be said that the Judge erred in finding that these two elements of the Appellant's profile do not give rise to a real risk.
21. As to ground two, the Appellant has not challenged the findings that he has not previously been detained by the authorities and that he is not wanted by the authorities as a result of his previous activities. The Appellant challenges the Judge's findings in relation to this element of his case only on the basis that he says that the Judge has failed to make a finding whether he was in fact a kolbar.
22. The starting point in relation to the Judge's findings about this aspect of the Appellant's case is at [26] of the Decision. Although, as Mr Schwenk rightly points out the Judge accepted that the Appellant's claim was plausible in the context of background evidence because many Kurds resort to smuggling in border territories, the following sentence which is the starting point of the Judge's findings on this Appellant's case begins with the word "However". It is in that context that what follows has to be read.
23. Looking then at the findings made and the reasons given, those do not address solely the question of whether the Appellant has been previously detained or whether information has been given to the authorities about his activities but also goes to the heart of the Appellant's account that he was engaged in such activities. One of the reasons given for disbelieving him, at [28], is that the Judge finds as "vague" the Appellant's evidence as to how often he smuggled goods. It is implicit in that paragraph that, due to inconsistencies and vagueness of the Appellant's evidence, the Judge does not accept that he was engaged in those activities.
24. For those reasons, I agree with Mrs Aboni's submission that when the Judge reaches the conclusion at [32] about the "lack of clarity and plausibility to the Appellant's account", she is there dealing with the whole of the Appellant's account on this aspect of his claim, namely the assertion that he is at risk because he was a kolbar.
25. Since I am satisfied that the Judge has not erred in failing to make a finding about the Appellant's previous activities, it follows that I am satisfied that there is no error either at [36] when the Judge considers what would happen at the "pinch point" of return. There is no error made by the Judge as to the Appellant's profile for the reasons I have already given. There is no separate challenge to the Judge's finding about what would happen at the point of return, unless the Appellant succeeds in showing that the Judge has erred in her previous findings as to the Appellant's profile. I have already decided that she has not.
26. There is no error of law in the Decision. I therefore uphold the Decision of First-tier Tribunal Judge Alty promulgated on 15 July 2016.

Notice of Decision

I am satisfied that the Decision does not contain a material error of law. The Decision of First-tier Tribunal Judge Alty promulgated on 15 July 2016 is upheld.

Signed Dated: 9 February 2017

Upper Tribunal Judge Smith