Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03481/2019

THE IMMIGRATION ACTS

At: Manchester Civil Justice Centre
Heard On: 21st June 2022
Decision & Reasons Promulgated
On the 14 July 2022

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

BM
(anonymity direction made)
Appellant
and

Secretary of State for the Home Department
Respondent

For the Appellant: Mr Brown, Counsel instructed by Elder Rahimi Solicitors
For the Respondent: Mr Diwnycz, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a national of Iran born in 1991. He appeals with permission against the decision of the First-tier Tribunal (Judge Buckley) to dismiss his protection and human rights appeal.

2. It is the Appellant’s case that he is entitled to protection, and leave on human rights grounds. When he arrived in the UK in 2016 it was his case that he faces a real risk of serious harm/persecution in Iran for reasons of his ethnicity (Kurdish) and imputed political opinion (KDPI sympathy). He states that he is from Iranian Kurdistan and made a living there from smuggling illegal goods over the border from Iraq. He usually just transported alcohol and cigarettes but in the late summer of 2015 he was approached by armed men, whom he believed to be separatist Kurdish guerrillas, who came to his home and ‘asked’ him to carry ammunition and guns on their behalf. While the Appellant, his fellow smugglers and these peshmerga were making their way across the mountains they were intercepted by a security services patrol. Shooting broke out and the Appellant and his friends ran away. The Appellant went into hiding during which time he heard that his friends had been arrested and the security services were looking for him. He left Iran to seek asylum.

3. The Respondent did not accept any of that. She found vagueness and inconsistencies in the Appellant’s account of the events in Iran, and apart from acknowledging that he is an Iranian Kurd, she rejected his evidence in its entirety.

4. The Appellant appealed and on the 7th August 2019 First-tier Tribunal Judge Siddiqi agreed with the Respondent’s analysis and dismissed the appeal.

5. The Appellant was granted permission to appeal against the decision of Judge Siddiqi on the 9th September 2019.

6. On the 6th November 2019 the appeal came before Deputy Upper Tribunal Judge Chapman who held that the decision of Judge Siddiqi was flawed for error of law to the extent that it had to be set aside in its entirety. The matter was remitted to the First-tier Tribunal.

7. The matter came before First-tier Tribunal Judge Buckley on the 11th March 2020. By his decision of the 12th March 2020 Judge Buckley also dismissed the appeal. As to what might be called the ‘historical claim’ Judge Buckley was prepared to accept that the account was plausible: in particular he appeared to accept that the Appellant was a smuggler or kolbar, and that he would have agreed to help the peshmerga in the manner he describes. It is not apparent from Judge Buckley’s decision that he found any reason to reject the evidence that the party were ambushed by Iranian security personnel. Judge Buckley did however find there to be “significant issues” with the Appellant’s claim that he could have been identified in that incident. It was his evidence that he and his friends had made their escape under cover of darkness amid the chaos of the shooting. In those circumstances it was difficult to imagine that the security services would have any idea of who they were. This made the Appellant’s claim that his friends were subsequently arrested, and he was looked for, not credible. The historical claim was therefore dismissed.

8. There was however another aspect of the case before Judge Buckley. By the time that he heard the appeal the Appellant had been in the United Kingdom for some four years, and it was his evidence that during that time he had started to attend demonstrations here staged against the Iranian regime; he had attended a conference of the KDPI held in Birmingham; he had also posted things adverse to the Iranian regime on Facebook. Of the sur place element of the claim, Judge Buckley found the Appellant’s evidence to be “troubling”. The Appellant claimed to have attended protests as early as 2016 and yet made no mention of this when interviewed in relation to his claim in 2017. There was no supporting evidence from the KDPI. As to the Facebook evidence this had been accessed via a third party’s log in details, something the Tribunal regarded as “extremely concerning”: the Appellant’s evidence was that he did not know his log in details and had never in fact posted anything personally, as his friends always do it for him. The Tribunal rejected the claim that any risk arose from any of these sur place activities. If he didn’t know his log in details, there was no way that the Iranian security services could make him open the account on arrival; his account was vague and did not demonstrate any genuinely held political conviction. The appeal was therefore dismissed on these alternative grounds.

9. The Appellant was granted permission to appeal against the decision of Judge Buckley by Upper Tribunal Judge Kebede on the 23rd June 2020. Although Judge Kebede commented that there is little arguable merit in the grounds concerning the overall credibility findings, she did not restrict the grant. Accordingly it is open to the Appellant to argue all of his grounds.

Ground 1: Credibility

10. Ground 1 is that Judge Buckley failed to give reasons for his finding that the Appellant could not have come to the attention of the Iranian authorities as claimed.

11. I am not satisfied that this ground is made out. The reasons given are as summarised above: by the Appellant’s own account the incident happened at night, with he and his fellow kolbar running away and making their escape. Judge Buckley was entitled to question how, in those circumstances, the security services would possibly have known who they were. Further Judge Buckley specifically deals with the Appellant’s evidence that he was told by a cousin that his two friends had been detained, and yet had not thought to ask the cousin how he had come to know that, despite having spent two days in this cousin’s company before he left Iran. In my view it would be perfectly natural for the Appellant to have asked his cousin how he came to know about the arrests, and Judge Buckley was entitled to draw adverse inference from the evidence that he had not done so.

Ground 2: the sur place activity and the ‘Hair Trigger’ response to Kurdish Returnees

12. Mr Brown identifies three problems in the Tribunal’s approach to the Appellant’s sur place activities and each is made out.

13. The first relates to the Appellant’s evidence that he has attended demonstrations in the UK against the Iranian regime. The Tribunal rejects the contention that he did so during 2016 and 2017 on the basis that the Appellant made no mention of any sur place activity at his asylum interview. That was a perfectly good point.

14. That was not however the sum of the evidence. It was the Appellant’s case that he had continued to attend such protests, and he provided various photographs of him at events outside the Iranian embassy in London. He is pictured holding the Kurdish flag, the KDPI flag, an Iranian flag with a cross marked over it, photographs of prominent Iranian clerics with their faces crossed out, and portraits of young Kurdish ‘martyrs’ and detainees held under threat of execution. Of these protests the Judge initially observes that the Appellant had not been able to provide the dates of when they took place – a matter from which he apparently drew adverse inference - before going on to accept that he did in fact attend as claimed [at paragraph 56]. The risk that might arise from his presence there is apparently rejected on the basis that he had not established that he had “even a low-level political profile”. As Mr Brown rightly points out, that was arguably a finding at odds with the acceptance that the Appellant had been going on protests holding placards such as I have described. More importantly it was not a finding that amounted to a complete risk assessment. In light of the caselaw on Iran (to which the Judge had properly directed himself) the correct approach was to consider whether it was reasonably likely that any of the Appellant’s activities would have brought him to the adverse attention of the Iranian authorities, or could do so upon his arrival in Tehran.

15. The second issue raised by Mr Brown concerns the Judge’s assessment of the claim that the Appellant had not only attended a KDPI conference in Birmingham, but that he had been photographed with a known KDPI leader. This evidence is not expressly rejected. What the Tribunal instead does is observe that there was no letter of support from the KDPI itself, this apparently justifying the conclusion that no risk arose from this association. Again this was an incomplete assessment. The Judge was not being asked to think about what evidence could have been produced, but what evidence had been produced. The decision contains some discussion about the photographs on Facebook but nowhere does it recognise that the picture of the Appellant and the KDPI official, Mr Soleiman Moradian, was in fact posted on Mr Moradian’s Facebook page. His open page, accessed in court, showed Mr Morodian’s profile as a picture of him with the background of a large KDPI flag. This was plainly a relevant matter to take into account, since it rendered largely irrelevant any finding that might be made about whether the Appellant had genuinely held political views or not. Here he was, pictured and tagged on the page of someone with an obvious anti-regime profile. As the Tribunal found in XX (PJAK - sur place activities - Facebook) Iran CG [2022] UKUT 23 (IAC), it is reasonably likely that the Facebook activity of persons of significant interest (as I assume KDPI leaders to be: see paragraph 92 XX) will already have been subject to monitoring by the Iranian state. This was a relevant matter that the decision below does not take into account.

16. The final ground is the logical conclusion of the first two. That is that in its application of the country guidance in HB (Kurds) Iran CG [2018] UKUT 430 (IAC) the Tribunal failed to take into account its own findings that the Appellant was a Kurdish smuggler who had been in the UK since 2016, that he had attended a number of protests outside the Iranian embassy. It further failed to weigh in the balance the apparently uncontested evidence that he had in fact attended a KDPI meeting in Birmingham, or that he had featured in a photograph, taken at that event, with a prominent KDPI member who had posted that image on his own Facebook page. The facts recited in the Tribunal’s conclusion – that he could delete his own Facebook page, and that he held no political views himself – were not determinative of risk.

17. I am satisfied that the ground (ii) is made out, and the decision of Judge Buckley is therefore set aside.

The Re-Made Decision

18. The relevant country guidance is to be found in the headnote to HB (Kurds):

(1) SSH and HR (illegal exit: failed asylum seeker) Iran CG [2016] UKUT 308 (IAC) remains valid country guidance in terms of the country guidance offered in the headnote. For the avoidance of doubt, that decision is not authority for any proposition in relation to the risk on return for refused Kurdish asylum-seekers on account of their Kurdish ethnicity alone.

(2) Kurds in Iran face discrimination. However, the evidence does not support a contention that such discrimination is, in general, at such a level as to amount to persecution or Article 3 ill-treatment.

(3) 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.

(4) However, the mere fact of being a returnee of Kurdish ethnicity with or without a valid passport, and even if combined with illegal exit, does not create a risk of persecution or Article 3 ill-treatment.

(5) Kurdish ethnicity is nevertheless a risk factor which, when combined with other factors, may create a real risk of persecution or Article 3 ill-treatment. Being a risk factor it means that Kurdish ethnicity is a factor of particular significance when assessing risk. Those “other factors” will include the matters identified in paragraphs (6)-(9) below.

…

(7) 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.

(8) 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.

(9) Even ‘low-level’ political activity, or activity that is perceived to be political, such as, by way of example only, mere possession of leaflets espousing or supporting Kurdish rights, if discovered, involves the same risk of persecution or Article 3 ill-treatment. Each case however, depends on its own facts and an assessment will need to be made as to the nature of the material possessed and how it would be likely to be viewed by the Iranian authorities in the context of the foregoing guidance.

(10) 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.

19. The Appellant is a Kurd. Kurdish ethnicity is a risk factor which, when combined with other factors, may create a real risk of persecution or Article 3 ill-treatment. Such ‘other factors’ include even ‘low-level’ involvement in Kurdish political groups or the expression of pro-Kurdish sentiment. I am satisfied that the attendance at protests outside the Iranian embassy, holding what are self-evidently materials hostile to the regime, and/or attendance at a KDPI meeting would amount to such activity.

20. The question is whether such activities are reasonably likely to have come to the authorities attention. In my view they could have done so in any of three ways.

21. First, through the deployment by the Iranian regime of spies in the diaspora. As confirmed in XX, the decision in BA (Demonstrators in Britain – risk on return) Iran CG [2011] UKUT 36 (IAC) continues to accurately reflect the position in respect of the behaviour of the Iranian authorities. At its paragraph 32 the Tribunal in BA accepted evidence that the regime does deploy agents to “circulate in demonstrations” and report back on attendees. See accepted evidence to the same effect at paragraph 99 of PS (Christianity - risk) Iran CG [2020] UKUT 00046 (IAC).

22. Second, through the observation, and filming of demonstrations outside the embassy. Although XX has now cast some doubt on the extent to which the Iranian authorities might be able to use facial recognition technology to screen such images, it is well established that such protests are filmed (see for instance paragraph 30 BA) and we must assume there is a reason for that. Given the Appellant’s repeated attendance at such events, it is reasonably likely that his image has been captured. Given the very limited number of returnees to Iran it is safe to assume that such images may be manually scanned when assessing returnees, particularly in the case of a Kurd.

23. Finally though the Facebook pages of Mr Moradian, which I have dealt with above. I find that he is a person reasonably likely to be the target of XX Facebook surveillance and as it is reasonably likely that the Appellant’s attendance at the Birmingham event will already be known to the Iranian authorities.

24. 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. In light of my findings, it follows that the appeal must be allowed.

Decision and Directions

25. The decision of the First-tier Tribunal is flawed for error of law and it is set aside.

26. The appeal is allowed on protection and human rights grounds.

27. I have had regard to the Presidential Guidance Note 2022 No 2: Anonymity Orders and Hearings in Private, in particular paragraph 28 dealing with asylum claims1. Having done so I am satisfied that it would be appropriate to make an order for anonymity 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, 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”

Upper Tribunal Judge Bruce
Date 21st June 2022