Tribunal decisions

The decision

IAC-FH-NL-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: pa/04079/2015

THE IMMIGRATION ACTS

Heard at Stoke
Decision & Reasons Promulgated
On 9 December 2016
On 18 January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE LATTER

Between

Secretary of State for the Home Department
Appellant
and

NS
(ANONYMITY DIRECTION MADE)

Respondent

Representation:

For the Appellant: Mr C Bates, Home Office Presenting Officer
For the Respondent: Ms N Wilkins, Counsel instructed by Barnes Harrild & Dyer Solicitors

DECISION AND REASONS

1. This is an appeal by the Secretary of State against a decision of the First-tier Tribunal (Judge Hawden-Beale) allowing the appeal by the applicant against the respondent's decision made on 14 December 2015 refusing his application for asylum. In this decision I will refer to the parties as they were before the First-tier Tribunal, the applicant as the appellant and the Secretary of State as the respondent.

Background

2. The background to this appeal can briefly be summarised as follows. The appellant is a citizen of Iran born on 22 June 1983. He first arrived in the UK on 31 March 2011 claiming asylum the same day. His claim was refused on 27 May 2011 and an appeal dismissed on 28 July 2011, permission to appeal being refused on 24 August 2011. He made further submissions in October 2011 which were found not to constitute a fresh claim and then made further submissions in January 2012, April 2013, July 2015 and finally in November 2015 all of which were considered and resulted in the refusal of his claim on 14 December 2015.

3. He claimed to be at risk of persecution on the basis of his ethnicity and political opinion and later because of his sur place activities in the UK, having joined the Kurdish Democratic Party of Iran (KDPI). At the hearing of the appeal in 2011 the appellant sought to argue that he would be at risk as a card-carrying member of the Green Party but that evidence was not accepted by the judge who also rejected the appellant's evidence about being arrested, detained and ill-treated by the Iranian authorities. At the hearing of this appeal, the appellant attempted to show that those findings were ill-founded but this was rejected by the judge who found that the previous findings had not been successfully rebutted by the further evidence.

4. Since the previous decision the appellant claimed that he had joined the KDPI, become involved in demonstrations outside the Iranian Embassy in London and had his photograph of these demonstrations uploaded on to Facebook with the result that the authorities would have become aware of his anti-regime activities and had visited his family to threaten them and had injured his brother. However, the judge rejected these claims. She found that there was no evidence to support the contention that the appellant had become a member of the KDPI after 2011. She did not accept the evidence about the risk of targeting because of his postings on Facebook as no evidence of such postings were produced or even that the appellant had a Facebook account. The only evidence produced were postings on the Green Voice Facebook account which he said showed him attending demonstrations outside the Iranian Embassy but, having looked at them, the judge said that she could not distinguish him in any of the photographs. She was not satisfied that his attendance at any of the demonstrations would result in him being identified by the Iranian authorities. She found that he had no political profile in the UK and was satisfied that he had no profile in Iran either.

5. This left the question of whether the fact that the appellant was a failed asylum seeker who had left Iran illegally and was of Kurdish ethnicity was sufficient to put him at real risk of persecution on return. The respondent relied on the country guidance decision in SSH and HR (illegal exit: failed asylum seeker) Iran CG [2016] UKUT 308 that an Iranian male in respect of whom no adverse interest had previously been manifested by the Iranian state did not face a real risk of persecution on return on account of having left Iran illegally and/or being a failed asylum seeker.

6. At the hearing before the First-tier Tribunal the appellant produced and relied on an expert report prepared by Professor Joffe which concluded that there was an increased risk of harm on return to Iran for Kurdish failed asylum seekers returning from abroad and particularly the UK following illegal exit from Iran. It was his opinion that such ill-treatment was not limited to those with a political profile and that being Kurdish in itself was enough to be subjected to severe discrimination amounting to treatment contrary to article 3. The judge took the view that it was open to her to depart from the guidance in SSH and HR on the basis that there had been no examination in that case of the risk to Kurds on their return to Iran purely because of being Kurds. It was accepted that the relevant Operational Guidance Note (OGN) set out the disproportionate targeting of minority groups including Kurds but had concluded that because there were no examples provided of ill-treatment of returnees with no relevant adverse interest factors other than their Kurdish ethnicity that the evidence did not show any risk of ill-treatment to such returnees. However, the more recent report from Professor Joffe of March 2016 made it clear that in his opinion they were at such risk.

7. The judge also referred to the Upper Tribunal judgment in R (Rashid) v Secretary of State for the Home Department IJR [2015] UKUT 00430 where there was a challenge to a decision on a fresh claim application where the applicant relied on the report of Professor Joffe. The respondent rejected the claim on the basis that the expert report was generic and could not outweigh country guidance and therefore would not create a prospect of success before an immigration judge. UTJ Allen disagreed saying that developments set out in the report suggested that persons returned to Iran as failed asylum seekers now faced an enhanced threat from the Iranian authorities. He made it clear that the system of country guidance only applied where a subsequent appeal depended on the same or similar evidence. The judge was therefore satisfied that in the light of the further evidence it was open to her not to follow the country guidance and the appeal was allowed accordingly.

The Grounds and Submissions

8. The substance of the respondent's grounds is that the judge erred in law by failing to follow the country guidance in SSH and HR. The judge relied, so the grounds assert, on a solitary report of Professor Joffe to depart from authoritative country guidance given after considering the extensive documents and evidence which had been before the Upper Tribunal. In SSH and HR it had been conceded that Kurds would not be at risk solely because of their ethnicity. The OGN noted that the behaviour of the authorities towards the Kurds did not show there would be a risk of ill-treatment to such returnees. It is argued that the First-tier Tribunal wrongly accepted the untested evidence of Professor Joffe and was wrong to depart from country guidance on the basis of Rashid which had been promulgated in 2015 and referred to other country guidance cases and not to SSH.

9. It is further argued that it was not clear on what basis the judge found that the appellant would have to explain why he had been in the UK for so long and what he had been doing here, especially as he did not have a political profile on the basis of past activities in Iran or sur place activities in the UK. The grounds also argue that the judge was wrong to rely on an unreported decision (AA/12529/2015), where in any event the respondent had sought permission to appeal on a similar basis to the challenge in the present case.

10. Mr Bates adopted his grounds. He submitted that the applications made in SSH and HR were based on three strands, the fact that the applicants had made illegal exits from Iran, were failed asylum seekers and of Kurdish ethnicity. Therefore, the fact of Kurdish ethnicity was in play in that appeal. The headnote referred to "Iranian males" which by necessity included Kurdish Iranian males. At that hearing the applicant's expert witness, Dr Kakhki, had given evidence about the risk of ill-treatment for Kurds but the Tribunal had rejected the claim that an individual faced a real risk on return on the sole basis of being Kurdish even though it was agreed that being Kurdish was relevant to how a returnee otherwise of interest to the authorities would be treated. Mr Bates submitted that the further evidence of Dr Joffe, whose evidence had not been tested could not make up the shortfall in Dr Kakhi's evidence. The Tribunal had been given details about the number of returnees to Iran. There had been nothing to identify any specific risk arising solely from Kurdish ethnicity. The country guidance case had dealt with the same arguments being raised in the present appeal and could not be distinguished in the absence of clear reasons.

11. Ms Wilkins made the initial point that the appeal in AA/12529/2015 had now been heard and dismissed by the Upper Tribunal. She submitted that the judge had been entitled to depart from the country guidance in the light of the further evidence from Dr Joffe which she regarded as compelling and had given full and cogent reasons for her conclusions.. The Tribunal in SSH and HR did not give guidance on the risk on return to those who had illegally exited who were also of Kurdish ethnicity.

Assessment of the Issues

12. The issue at the heart of this appeal is whether the judge erred in law by not following the country guidance in SSH and HR in the light of the expert report provided by Dr Joffe. In SSH and HR the Tribunal held as summarised in the italicised headnote that:

"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."

14. It is correct that the applicants in SSH and HR were Kurdish and on this issue the Tribunal said at [34]:

"It was not suggested to us that an individual faces risk on return on the sole basis of being Kurdish. 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 disproportionately targeting minority groups, including Kurds, for arbitrary arrests, 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...".

15. Mr Bates submits that as the Tribunal concluded that the evidence showed no risk of ill-treatment to Kurdish returnees, that factor cannot add anything of substance to the conclusion that there was no real risk arising from the fact of having left Iran illegally or being a failed asylum seeker. However Ms Wilkins submits that there was further evidence that there was an increased risk of harm on return to Iran for Kurdish failed asylum seekers set out in the report of Dr Joffe which was before the First-tier Tribunal but had not been in evidence before the Upper Tribunal in the country guidance decision.

16. In the Senior President's Practice Direction the issue of country guidance is dealt with as follows:

"12.2 A reported determination of the Tribunal, the AIT or the IAT bearing the letters 'CG' shall be treated as an authoritative finding on the country guidance issue identified in the determination, based upon the evidence before the members of the Tribunal, the AIT or the IAT that determined the appeal. As a result, unless it has been expressly superseded or replaced by any later 'CG' determination, or is inconsistent with other authority that is binding on the Tribunal, such a country guidance case is authoritative in any subsequent appeal so far as that appeal:-

(a) relates to the country guidance issue in question; and

(b) depends upon the same or similar evidence'."

18. I have been referred to the judgment of UTJ Allen in Rashid where it was emphasised that the system of country guidance only applied where a subsequent appeal depended upon the same or similar evidence. The issue therefore is whether the evidence relied on by the appellant can be so categorised. In NM and others (Lone Women - Ashraf) Somalia CG [2005] UKIAT 76 the Tribunal at [140-1] said:

"These decisions are now denoted as "CG". They are not starred decisions. Those latter are decisions which are binding on points of law. The requirement to apply CG cases is rather different: they should be applied except where they do not apply to the particular facts which an Adjudicator or the Tribunal faces and can properly be held inapplicable for legally adequate reasons: there may be evidence that circumstances have changed in a material way which requires a different decision, again on the basis that proper reasons that are given; there may be significant new evidence which shows that the views originally expressed require consideration for revision or refinement, even without any material change in circumstances. It may be that the passage of time itself or substantial new evidence itself warrants a re-examination of the position, even though the outcome may be unchanged. It is a misunderstanding of their nature, therefore, to see these cases as equivalent to starred cases. The system does not have the rigidity of the legally binding precedent but has instead the flexibility to accommodate individual cases, changes, fresh evidence and the other circumstances which we have set out. ?

Unlike starred decisions, it is always possible for further evidence to show that the original decision was wrong or to expose other issues which require examination. They are not accurately understood or described as 'factual precedents'."

19. I am satisfied that the judge was entitled to find that Dr Joffe's report could not be regarded as "the same or similar evidence". It is certainly not the same evidence as it was not before the Upper Tribunal in SSH and MH. It is similar evidence only in the sense that it deals with similar but not identical issues considered by that Tribunal. It is evidence which, for whatever reason, was not available to the Tribunal which dealt in detail and at length with the issue of the risk arising to Iranian Kurds on return, having unsuccessfully claimed asylum or having made an illegal exit from Iran. It was fresh evidence which the judge was entitled to regard as significant and then it was for her to assess in the context of the evidence as a whole the extent to which it affected the application of country guidance in the appellant's circumstances.

20. She was, therefore, entitled to consider whether the further evidence from Dr Joffe required her to take a different view from the previous country guidance on the issue of whether the appellant would be at risk on return to Iran. I am satisfied that her findings and conclusions were properly open to her on the evidence.

21. In the respondent's grounds it is argued that the judge was wrong to follow the reported decision in AA/12529/2015 and that permission to appeal had been sought. However, that appeal has been dismissed. It was also argued that Rashid was dealing with other country guidance cases and not SSH and MH but, nonetheless, that case was dealing with the principles on which country guidance could be departed from.

Decision

22. In summary, the grounds do not satisfy me that the judge erred in law by departing from the country guidance in the light of the further evidence in Dr Joffe's report. It follows that the decision of the First-tier Tribunal stands. The anonymity order made by the First-tier Tribunal remains in force.

Signed H J E Latter Date: 16 January 2017

Deputy Upper Tribunal Judge Latter