Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01987/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 24 February 2017
On 11 April 2017

Before

UPPER TRIBUNAL JUDGE KOPIECZEK

Between

bm
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms K McCarthy, Counsel instructed by Barnes Harrild & Dyer Solicitors
For the Respondent: Mr T Melvin, Home Office Presenting Officer

DECISION AND REASONS
1. This appeal comes back before me following a hearing on 7 November 2016, whereby I set aside a decision of the First-tier Tribunal (“FtT”) for error of law, and decided that the decision should be re-made in the Upper Tribunal (“UT”).
2. The background to the appeal, the error of law and the scope of the further hearing are set out in the error of law decision which I reproduce in full as follows:
“DECISION AND DIRECTIONS
1. The appellant is a citizen of Iran born on 24 August 1999. He arrived in the UK on 10 August 2015, and claimed asylum on 17 August 2015. His asylum claim was refused but he was granted limited leave to remain until 24 February 2016 on account of his age.
2. His appeal against the decision to refuse his protection claim came before First-tier Tribunal Judge Wright (“the FtJ”) on 2 August 2016 whereby the appeal on asylum, humanitarian protection and human rights grounds was dismissed.
3. The appellant’s claim, in summary, was that two years before he arrived in the UK he began to transport illegal goods from the border of Iraq to Iran. That resulted in his being harassed by the checkpoint guards, his goods were destroyed, and his being detained.
4. Five days before leaving Iran he was transporting tea when he was approached by two Kurdish people who forced him to take some goods to an area close to his village, threatening him to ensure that he complied. Iranian security forces found them and the appellant ran away in order to escape. The appellant stayed at his brother's home, and was then taken to his brother's friend’s house.
5. The appellant learned that he was accused of smuggling illegal weapons, which he was told were the items that he had been transporting. This resulted in his ultimately leaving Iran, travelling through Turkey and entering the UK illegally.
6. The FtJ rejected the appellant’s account of the circumstances which led to his leaving Iran. He gave a number of reasons for coming to that conclusion. He found that the appellant had not transported weapons and arms, and rejected the contention that the authorities were looking for him prior to his leaving Iran, or that he is wanted in Iran for any reason.
7. He concluded that the appellant’s Kurdish ethnicity would not put him at risk on return, even combined with his having left Iran illegally.
8. The essential complaint in the grounds of appeal before the Upper Tribunal is to the effect that the FtJ did not make an assessment of the risk to the appellant on the basis of his Kurdish ethnicity, either as a stand alone factor but also in conjunction with his illegal exit. It is argued that the decision in SSH and HR (illegal exit: failed asylum seeker) Iran CG [2016] UKUT 00308 (IAC) does not deal with the issue of risk on return on the basis of Kurdish ethnicity. The FtJ in this case had failed to make an assessment of the risk to the appellant in that respect, and had failed to take into account the expert evidence of Professor Emile Joffé.
Submissions
9. Mr Tufan referred me to the respondent’s ‘rule 24’ response which was to the effect that it was accepted that there was an error of law in the FtJ’s decision. However, Mr Tufan submitted that the rule 24 response was wrong and it was not in fact accepted that there was any error of law in the FtJ’s decision.
10. I was referred to paragraphs 18(iv) and 26 of the FtJ’s decision which made it clear that it was accepted that the appeal turned on the appellant’s credibility. The appellant’s skeleton argument before the FtJ did not make it clear that risk on the basis of Kurdish ethnicity was relied on.
11. Furthermore, in SSH and HR the Tribunal indicated that it was not suggested to it that an individual faced a risk on return solely on the basis of being Kurdish and no examples were given to the Tribunal of ill-treatment of returnees with no relevant adverse interest factors other than their Kurdish ethnicity. The Tribunal concluded that the evidence does not show a risk of ill-treatment to such returnees, although it might be an exacerbating factor for a returnee otherwise of interest. Both of the appellants in SSH and HR were Kurdish. Professor Joffé’s report does not give specific examples either.
12. Ms McCarthy also relied on the skeleton argument that was before the FtJ, in particular at paragraphs 17-19. There is reference in the skeleton argument at paragraph 19 to Professor Joffé’s reports. The fact that those reports are described as “generic” does not mean that they are irrelevant to the appellant’s circumstances. I was specifically referred to Professor Joffé’s most recent report dated 2 March 2016.
13. The issue of risk on the basis of Kurdish ethnicity was not considered in the case of SSH and HR, and the evidence that was before the FtJ in this case was not before the Upper Tribunal in that country guidance case. It appears that the FtJ incorrectly treated SSH and HR as country guidance on the proposition that the appellant may be at risk on return on account of his Kurdish ethnicity.
14. Even if the skeleton argument and submissions before the FtJ were not entirely clear, the point was a Robinson obvious one that the FtJ needed to consider.
My conclusions
15. The respondent’s rule 24 response states, materially, as follows:
“The respondent does not oppose the appellant’s application for permission to appeal and invites the Tribunal to determine the appeal with a fresh oral (continuance) hearing. The FTTJ failed to consider the expert’s report as set out at paragraph 15 of the grounds of appeal.”
16. Mr Tufan’s position was that the rule 24 response was quite simply wrong in terms of whether the FtJ had made an error of law. I did not hear full argument from the parties in relation to the circumstances in which a concession by a party to the proceedings can be withdrawn, although it was accepted by Ms McCarthy that the respondent would not be bound by a concession of law which was in fact incorrect. I do not consider it necessary to resolve the issue of whether the rule 24 response should be allowed to be withdrawn. Suffice it to say, it seems to me to be a concession of mixed law and fact. In any event, I consider that the most appropriate course is to resolve the error of law issue on the basis of the grounds and submissions.
17. It is not disputed but that the appellant is of Kurdish ethnicity. That was not in issue before the FtJ. It is true to say that the FtJ’s decision makes reference to submissions made on behalf of the appellant to the effect that the appeal turned on credibility. It is not apparent on the face of the FtJ’s decision that particular argument was advanced in terms of the appellant’s Kurdish ethnicity, either as a stand alone issue or in combination with illegal exit.
18. At paragraph 39 the FtJ said as follows:
“As a result, I conclude that the appellant does not have a well-founded fear of persecution on return to Iran (for the avoidance of doubt there also being no suggestion that failed asylum-seekers and/or illegal exiters and/or those simply of Kurdish origin/ethnicity per se are at risk on return there following the recent Country Guidance case of [SSH and HR].”
19. In that same paragraph he concluded that the appellant was simply a low-key, small-scale goods transporter/smuggler, but not of illegal goods, such as alcohol and drugs, who has been detained but released without charge, and without any further action being taken, despite his being Kurdish.
20. The appellant’s skeleton argument that was before the FtJ made detailed reference to background material in relation to the human rights situation in Iran, including for Kurds. At paragraph 17 there is reference to SSH and HR, in particular to paragraph 34 of that decision, which is quoted in full in the skeleton argument. Paragraph 19 of the skeleton argument states that there are a number of generic expert reports in the bundle “setting out the problems for Ethnic Kurds in Iran”.
21. I drew the parties’ attention to the FtJ’s manuscript Record of Proceedings, in particular the submissions made on behalf of the appellant, those submissions referring to the appellant’s illegal exit in conjunction with his ethnicity, but also linking that to his having being stopped or detained by the authorities. It is clear that the submission was that being Kurdish was not in itself a sufficient basis for the appellant’s appeal to succeed, although his ethnicity was linked to what was said to have been his involvement with transporting weapons.
22. It is to be remembered that the FtJ rejected the appellant’s account of his activities in terms of having made him leave the country because of adverse interest in him. The grounds of appeal before me do not particularise the nature and extent of the submissions made to the FtJ on this issue.
23. However, I also pointed out to the parties that it is apparent from the FtJ’s Record of Proceedings that a manuscript reading list was received from Counsel for the appellant on the day of the hearing but after the case had been concluded. That list of reading material is endorsed by the judge as having been received on the day of the hearing. Amongst other things, it refers to an expert’s report by Professor Joffé, and under a heading “Risk on return” four headings are written, being “(1) Ethnic Kurd, (2) illegal exit, (3) known to the authorities, (4) wanted for illegal transportation of weapons”.
24. Reference is also made on that manuscript note or list to Bundle C and the decision in SSH and HR that “being Kurdish will be an exacerbating feature” of risk to someone exiting illegally. Reference is also made in that document to the decision in SB (risk on return – illegal exit) Iran CG [2009] UKAIT 00053. There are other references to illegal exit, and paragraph 34 of SSH and HR is specifically referred to.
25. There was evidence before the FtJ from Professor Joffé, in particular a supplementary report dated 2 March 2016. Earlier reports are dated 17 October 2014 with an “update letter” of 16 November 2014. The most recent report, in the concluding paragraph states as follows:
“...any Kurd returned to Iran must anticipate the serious risk of official discrimination or persecution simply on the grounds of his membership of an ethnic group, quite apart from any specific threats he or she might face for illegal exit from Iran...”.
26. The FtJ’s decision contains no reference whatsoever to any of the reports of Professor Joffé. His decision does, at paragraph 39, refer to Kurdish ethnicity but states that there is “no suggestion” that Kurdish ethnicity alone or in combination with illegal exit, presents a risk on return.
27. I do not consider that the way the case was put before the FtJ in terms of illegal exit combined with Kurdish ethnicity as a risk factor, was as clear as is now presented. It is evident from the fact that credibility was accepted on behalf of the appellant as being the main issue, and from what can be deduced as to the written and oral submissions, that Kurdish ethnicity as a stand alone factor or in combination with illegal exit was not a matter so sharply focused as it is now, with hindsight, in the light of the appellant’s credibility having been rejected.
28. However, it is plain that the FtJ made no reference to the expert evidence before him from Professor Joffé. It was sufficiently clear that the appellant’s Kurdish ethnicity, either alone or in combination with the issue of illegal exit, should have been given specific consideration with reference to the expert evidence. That was not done. The FtJ may have come to the view that the expert evidence did not establish a risk in that regard. It was not in my view sufficient for him to have concluded that there was no risk, with reference to the decision in SSH and HR, which did not purport to give guidance on that issue.
29. In the circumstances, I am satisfied that the FtJ erred in law in his assessment of that distinct aspect of the appeal. The rule 24 response was entirely correct to make that concession.
30. I do not consider that it is appropriate for me, in the absence of further submissions from the parties, to undertake the assessment that should have been undertaken by the FtJ, in order to come to a view about whether the FtJ’s error of law would inevitably have affected the outcome of the appeal. It is sufficient to conclude that on the basis of the evidence and submissions before me, the error of law is material, in that it could have affected the outcome of the appeal.
31. Both parties were of the view that if I decided that the decision of the FtT should be set aside for error of law, that it was not appropriate for the appeal to be remitted to the FtT for a re-hearing. That is also my view. Accordingly, there will be a further hearing in the Upper Tribunal for determination of the issue of risk on return either on the basis of the appellant’s accepted Kurdish ethnicity and/or in combination with his illegal exit and any other pertinent established facts. I did also canvass with the parties the issue of whether this was a case suitable for designation as a country guidance case. On reflection, I do not consider that that is an appropriate course.
32. The parties are to have careful regard to the directions set out below.
DIRECTIONS
1. If either party wishes to rely on any further evidence that was not before the FtJ, there must be a further, supplementary, indexed and paginated bundle, to be filed and served no later than 14 days before the next date of hearing.
2. In relation to any witness whom it is proposed to call to give oral evidence, there must be a witness statement drawn in sufficient detail to stand as evidence-in-chief, such that there is no need for any further examination-in-chief.
3. At the next hearing the parties must be in a position to make submissions as to what findings of fact can be preserved.”
3. There was a supplementary bundle of documents submitted on behalf of the appellant containing a further report from Professor Joffé, the report being dated 26 August 2016. There was a skeleton argument on behalf of the appellant and a document entitled “written submissions” on behalf of the respondent.
Submissions
4. The following is a summary of the submissions. Mr Melvin relied on the decision letter and his written submissions. Referring to the findings made by the FtT that can be preserved, it was pointed out that there was no arrest warrant for the appellant and he was not wanted by the authorities. He was a failed asylum seeker who had left Iran illegally. There was no evidence of any activities within the UK that would bring him to the attention of the authorities in Iran. He has only been in the UK for just over a year.
5. All of Professor Joffé’s reports were generic in nature. Dr Kakhki gave evidence before the Upper Tribunal in relation to illegal exit and returning asylum seekers in the appeal of SSH and HR (illegal exit: failed asylum seeker) Iran CG [2016] UKUT 00308 (IAC).
6. In his August 2016 report Professor Joffé maintains the stance that all Kurds would be at risk on return to Iran. However, in SSH and HR no examples were given of such individuals facing any persecution on return. Professor Joffé’s reports suggest discrimination but not persecution. Dr Kakhki in SSH and HR did not give examples of any individuals facing such risk either.
7. It was accepted that the Country Information and Guidance Iran: Kurds and Kurdish political groups report dated July 2016 (“CIG”) suggests that Kurds do face discrimination and if the appellant was aligned with political or anti-government activity or Kurdish rights he would face problems. There was no evidence before the FtT or the UT of any risk on return in that respect.
8. The appellants in SSH and HR were both Kurdish, and even though the Upper Tribunal was considering illegal exit and failed asylum seekers, neither their representatives nor Dr Kakhki provided any examples of risk on return for individuals in their situation. That is relevant notwithstanding that that case was not precisely on the ‘Kurdish’ point.
9. Ms McCarthy referred to [34] of SSH and HR which, it was submitted, was to the effect that the UT said that it was not making a finding as to risk on return on the basis of a person being Kurdish. Professor Joffé’s most recent report postdates the evidence given in SSH and HR. He highlights increased regional tensions, concerned with the Syrian conflict and the Turkish authorities’ involvement in the Kurdish issue. Page 4 of his March 2016 report explains the background to the increase in tensions. I was also referred to the August 2016 report and the expert evidence and background evidence referred to in the skeleton argument. At [22] of his August 2016 report he concluded that the appellant would be at risk of persecution not only because of his Kurdish ethnicity but also as a failed asylum seeker. As a failed asylum seeker, it was submitted that the appellant would be considered to have impliedly criticised the Iranian government.
10. As to whether it was suggested that all Kurds in Iran are therefore at risk, Ms McCarthy submitted that that was the case but that particular attention would be given to the appellant because of his needing to have a laissez-passer which would highlight his illegal exit, his claim for asylum, and the consequent criticism of the regime.
11. Although it was accepted that there were no examples of failed Kurdish asylum-seekers having been persecuted on return for those reasons alone, as was said in SSH and HR, laissez-passers would not be made available to failed asylum-seekers, and the report of 15 October 2014 by Professor Joffé suggested that criticism of the regime abroad could lead to charges on return.
12. Ms McCarthy sought to draw support for her submissions from various decisions of the FtT contained in the appellant’s bundle. However, I indicated that I did not consider that I would be assisted by those decisions.
13. I was referred to various background reports, which in turn are referred to in the appellant’s skeleton argument. It was submitted that Professor Joffé’s August 2016 report deals with the decision in SSH and HR.
14. In reply, Mr Melvin submitted that in relation to reports relied on by the appellant, namely the US State Department Report and the Amnesty International Report, those were all before the Upper Tribunal in SSH and HR.

My Conclusions
15. The background against which the appeal is now to be determined is the preserved findings of the FtT. In my directions within the error of law decision I directed that the parties must be in a position at the next hearing to make submissions as to what findings of fact can be preserved. Both parties have considered that matter and their skeleton arguments identified those findings. There is no material difference between them. However, I set out the preserved findings in my own words, rather than adopting the summaries in the respective skeleton arguments. The preserved findings are as follows, with numbers in square brackets representing the paragraphs of the FtT’s decision:
The appellant is of Kurdish ethnicity.
He was born on 24 August 1999 and was aged 15 on arrival in the UK.
There were significant discrepancies, inconsistencies and implausibilities in his account such that the core of his claim to have been involved in the transporting of “weapons and arms” or other illegal goods was not credible [37].
The appellant was a low-key, small-scale goods transporter/smuggler but not of illegal goods, whether that be alcohol or drugs, weapons or arms [39].
He has been stopped and detained by the border control guards on numerous occasions but on each occasion released without charge or any further action being taken against him, despite his being Kurdish [39].
The authorities were not looking for the appellant prior to his leaving Iran, and his is not wanted on an arrest warrant or otherwise [38].
The appellant left Iran illegally.
16. Professor Joffé’s report dated 2 March 2016 refers to continuing high tension throughout Iranian Kurdistan. He refers to the various respects in which Kurds are discriminated against, citing various sources. He refers at [6] to Kurds having frequently been condemned to death and executed for ‘mohareb’, being described as crimes against God and that Kurds have figured disproportionately amongst those who have been punished for such a crime. This is described by Professor Joffé as a “catch-all” phrase, reflecting claims of crimes against the Iranian State which is used as a cover for straightforward dissidence. He refers to the activities of the PJAK (Party for a Free Life in Kurdistan), a major clandestine political party amongst Kurds. He describes their activity from [12], stating that the PJAK has continued to be active in harassing Iranian security forces in Kurdistan.
17. His conclusion at [16] of that report is that Kurdistan is in a state of continuous tension and is subjected to constant low levels of violence which on occasion break out into open defiance towards the Iranian authorities. He continues that the ongoing hit-and-run tactics used by the PJAK ensured that official attitudes remained hostile and repressive. He concludes as follows:
“The result is that any Kurd returned to Iran must anticipate the serious risk of official discrimination or persecution simply on the grounds of his membership of an ethnic group, quite apart from any specific threats he or she might face for illegal exit from Iran or because there are specific charges outstanding against her or him.”
18. In his report dated 16 November 2014 he concludes that the Iranian authorities are much more sensitive than in the past over the country’s reputation and that applications for asylum fall into the category of actions that are viewed increasingly with considerable disfavour, such that persons returned to Iran as failed asylum-seekers now face an enhanced threat of being considered a priori to have defamed the Islamic Republic whilst abroad. He states that persons who have left Iran illegally face trial upon return and a significantly increased threat of conviction, not only for the offence of having left Iran illegally, but also of having committed further offences under Iranian law whilst abroad. There was a basic assumption to the effect that offences would be considered specifically political in nature, and the accused person would have to disprove that. Thus, the burden of proof had shifted significantly against an asylum-seeker who has been returned. In addition, returned Kurds face particular scrutiny, and thus the danger of further accusations being laid against them.
19. In his report of 15 October 2014 at [121], he concluded that the Iranian regime severely discriminates against its Kurdish minority simply because they are Kurdish. Such discrimination is so severe that it amounts to persecution. When they are returned to Iran as failed asylum-seekers, they face serious and real threats to their personal safety and security as a result.
20. In his most recent report dated 26 August 2016 he refers to the security situation inside Iranian Kurdistan as having significantly worsened since April 2016, and cites various instances of clashes between armed Kurdish groups and Iranian security forces.
21. At [22] he said that he was substantially in disagreement with the conclusions in SSH and HR and that he considered that Kurds returned to Iran do face an increased risk of persecution simply because of their Kurdish ethnicity, and that both being a Kurd and a failed asylum-seeker “does imply” a significant risk of persecution. At [23] he suggests that the UT had perhaps overlooked two general aspects of the current situation in Iran, namely the worsening security situation in parts of the country occupied predominantly by one of the country’s main ethnic or religious minorities and the increased domestic tensions that have arisen in consequence of the Majles elections in May 2016, and the potential difficulties connected with the acquisition of a laisser-passer.
22. At [30] he states that the factors he had referred to have led to intensified repression of Kurds and that if a Kurdish returnee has given rise to suspicions of anti-regime behaviour, either whilst abroad by, for example, applying for asylum, or before he left Iran, his prospects of avoiding persecution upon return will have significantly diminished. He concluded that he did not feel that the UT in SSH and HR had paid sufficient attention to those considerations. That was also an issue, he says, that had been neglected in the latest edition of the Home Office country guidance for Iran dated July 2016.
23. Further, for the reasons he gives in the report, he concludes that in order to obtain a laisser-passer, amongst other things the Iranian Embassy requires a person’s original birth certificate/family book and a copy, and a letter from the Home Office confirming that an application for asylum in the UK had been made, or a photocopy of a residence permit. If a person does not have the birth certificate/family book he would need to request relatives in Iran to obtain an official copy of the original. He concludes that it is most unlikely for a person leaving Iran illegally to carry his or her birth certificate/family book with them and without it a laisser-passer cannot be obtained. Even if it were available, the problem would be that the applicant must provide details of an asylum application, thus leaving him open to persecution precisely because the Home Office will be required to reveal that an asylum application had been made. Thus, he said that he could not see how in such circumstances an application for a laisser-passer could be made without potentially endangering its bearer.
24. The appellant also relies on a report by Dr M Kakhki dated 5 December 2014, which states, in summary, that the mere fact that an asylum-seeker has made allegations against the Iranian regime is grounds for a prosecution as any criticism against the government is regarded as propaganda against the State.
25. The appellant’s skeleton argument at page 6 contains an extract from Dr Kakhki’s report which appears at page 33 of the appellant’s bundle, to the effect that there is a general suspicion levelled against Kurds, relating this to the circumstances of an appellant returning as a failed asylum-seeker from the UK, a country where there is said to be a strong presence of Kurdish dissident organisations.
26. However, contrary to the submissions made on behalf of the appellant, and indeed to the general tenor of Professor Joffé’s most recent report in particular, Dr Kakhki’s report at page 40 of the bundle states that:
“It is certainly not suggested that being a Kurd, in isolation, would lead to legal prosecution or persecution” (my emphasis).
27. He does however, go on to state that illegal departure combined with considerable time spent away from Iran would attract the attention of officials and result in a thorough investigation to uncover their reasons for leaving illegally. He goes on to refer to the general suspicion against Kurds where crimes are in evidence and that this may manifest itself by easing the practical burden of proof required to convict or seriously to investigate.
28. Dr Kakhki’s report is in fact incomplete; in the bundle it ends at its internal page 39. In any event, neither in the skeleton argument nor in submissions is there any further reference to his report.
29. Although there was a background bundle before the FtT, and it is referred to in the skeleton argument before me, very little of it is specifically referred to, apart of course from the experts’ reports. The Amnesty International Report dated 24 February 2016 refers to the, by now well-known, human rights abuses that occur in Iran, the ill-treatment of those detained and the flawed trial process. There is reference to the discriminatory treatment suffered by ethnic minorities, including Kurds.
30. The CIG, referred to by both parties, states at 3.1.1 that Kurds in Iran face discrimination, albeit in the same paragraph it states that that discrimination does not reach the level of being persecutory. However, it goes on to state that those involved in Kurdish political groups are at risk of arbitrary arrest and prolonged detention and physical abuse from the Iranian authorities. Even those who express peaceful dissent or speak out about Kurdish rights can be seen as a general threat and face a real risk of persecution.
31. At section 5 the situation for Kurds, and their treatment by the State and society, is set out, the information being consistent with other evidence in terms of discrimination.
32. At 2.3.2, it states that the level of discrimination faced by Kurds in Iran is not such that it will reach the level of being persecutory or otherwise inhuman or degrading treatment. The situation however, is said at 2.3.3 to be different for those who become or are perceived to be involved in Kurdish political activities.
33. The other Home Office reports referred to in the appellant’s skeleton argument, and the extracts provided, are to like effect.
34. The guidance in SSH and HR states as follows:
“(a) An Iranian male whom it is sought to return to Iran, who does not possess a passport, will be returnable on a laissez passer, which he can obtain from the Iranian Embassy on proof of identity and nationality.
(b) An Iranian male in respect of whom no adverse interest has previously been manifested by the Iranian State does not face a real risk of persecution/breach of his Article 3 rights on return to Iran on account of having left Iran illegally and/or being a failed asylum seeker. No such risk exists at the time of questioning on return to Iran nor after the facts (i.e. of illegal exit and being a failed asylum seeker) have been established. In particular, there is not a real risk of prosecution leading to imprisonment.”
35. Professor Joffé’s latest report appears to express the view that it is unlikely that a person who had left Iran illegally would be able to obtain a laisser-passer, and that even were such to be able to be obtained, an individual would be open to persecution because of the revelation of the fact of having claimed asylum.
36. However, the conclusion of the UT in SSH and HR, having taken into account a considerable volume of background and expert evidence, including evidence from Dr Kakhki, rejected the suggestion that illegal exit, of itself, and/or being a failed asylum-seeker, would create a risk of persecution or Article 3 ill-treatment. I cannot see that the views expressed by Professor Joffé are such as to displace the binding country guidance on that issue.
37. Furthermore, although Professor Joffé suggests that an individual faces persecution solely on account of being Kurdish, that was not a suggestion that was put to the Tribunal in SSH and HR, and indeed the evidence before it did not reveal that to be the case.
38. In submissions before me, Ms McCarthy made the bold assertion that all Kurds in Iran are at risk of persecution, in line with Professor Joffé’s opinion. However, at [34] of SSH and HR, it was stated that it was not suggested to the UT that an individual faces risk on return on the sole basis of being Kurdish. When one considers not only the breadth of material that was before the UT in that case, but also the experienced representation on behalf of the appellants, it is reasonable to conclude that if there had been evidence to support a proposition that all Kurds are at risk or all Kurdish failed asylum-seekers are at risk, then that evidence would have been put before the UT.
39. Indeed, I consider that there is merit in the submission made on behalf of the respondent before me in relation to the fact that both appellants in SSH and HR were of Kurdish ethnicity yet it was not contended that they would face risk on return solely on the basis of being Kurdish. The UT did however, state as follows:
“It was however agreed that being Kurdish was relevant to how a returnee would be treated by the authorities. For example, the Operational Guidance Note refers at 3.12.14 to the government disproportionally targeting minority groups, including Kurds, for arbitrary arrest, prolonged detention and physical abuse. No examples however have been provided of ill-treatment of returnees with no relevant adverse interest factors other than their Kurdish ethnicity, and we conclude that the evidence does not show risk of ill-treatment to such returnees, though we accept that it might be an exacerbating factor for a returnee otherwise of interest.”
40. It is significant therefore, that before the Tribunal in SSH and HR, no examples were provided of ill-treatment of returnees with no relevant adverse interest factors other than their Kurdish ethnicity. Likewise, before me Ms McCarthy was not able to point to any example of such, either in the expert evidence or in the background materials.
41. In all the circumstances, I am not satisfied that the evidence establishes that the appellant would be at risk on return either on account of being a failed asylum-seeker, or an account of illegal exit, or because of his Kurdish ethnicity, or any combination of those factors. He is an individual who has been found not to be of adverse interest to the authorities, either now or when he left. Whilst he has been detained and released by border guards because of his “low-key, small-scale” transportation or smuggling of goods, there is nothing to suggest that there is any record of him, or that he would be viewed as an individual of specific interest on return.
42. Accordingly, I am not satisfied that the appellant has established that he has a well-founded fear of persecution for a Convention reason, or that he is at risk of Article 3 ill-treatment. Likewise, he is not entitled to a grant of humanitarian protection.

Decision
The decision of the First-tier Tribunal involved the making of an error on a point of law. Its decision having been set aside, the appeal is dismissed on asylum, human rights and humanitarian protection grounds.

Direction Regarding Anonymity – 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 or any member of his family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Upper Tribunal Judge Kopieczek 7/04/17