Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/04763/2016

THE IMMIGRATION ACTS

Heard at Glasgow
Determination issued
On 8 November 2016
On 16 November 2016

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

BEHNAM VEISI
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Mr D Byrne, Advocate, instructed by Quinn, Martin & Langan, Solicitors
For the Respondent: Mr M Matthews, Senior Home Office Presenting Officer

DETERMINATION AND REASONS)
1. The appellant appeals against a determination by First-tier Tribunal Judge Mays, promulgated on 25 August 2016, dismissing his appeal against refusal of asylum. The submissions on his behalf by Mr Byrne were along the lines of the grounds.
2. Ground one is that the judge stated erroneous and confusing thresholds for the risk of persecution of a Kurdish Sunni Muslim in Iran, suggesting that the threshold might be promotion of religion or of Kurdish rights, whereas risk may arise from mere peaceful expression and association.
3. Ground two is that the judge failed to consider the appellant's explanation that he was scared to take part in political activities in the context of the principle established in HJ (Iran) and HT (Cameroon) v SSHD [2010] UKSC 31.
4. Ground three maintains that the judge appellant thought that an individual's manifestation of belief or ethnic identity required to be radical for protection can be engaged, a misconception of the principle in HJ and HT.
5. Ground four criticises paragraph 60, where the judge concluded that the fact that the applicant "had not been involved in any political or religious activities in the UK seriously undermines the credibility of his claim to be someone who wishes to actively express his political and religious dissent". That finding is said to leave out of account that while in the UK the appellant is not subject to the strictures of the Iranian regime, so that there is no imperative on to challenge the authority of the estate, and the tribunal again posits a too high a threshold to give rise to harm, being public activism.
6. The grounds as a whole are said to raise a general point of importance in relation to the threshold at which persecution may arise for Kurds and Sunni Muslims.
7. Mr Byrne referred to paragraph 50 of the decision:
"? someone who is a political activist or who openly espouses the Sunni religion and proselytises against the tenets of Shia Islam would be liable to persecution?"
8. He said this showed the threshold being set too high and although the judge did refer elsewhere to a lower standard, in effect he applied the higher one. It was nothing to the point that the appellant was inactive in the UK, there being nothing to oppose. The judge reached his overall conclusion for bad reasons and the case should be reheard, either in the FtT or in the UT.
9. Mr Matthews pointed out that the judge found at paragraph 63 that the appellant in Iran would live as he did previously, attending his mosque occasionally, praying at home, doing nothing to bring himself to the attention of the authorities and not involving himself in Kurdish political activities. Mr Matthews said that the nub of the decision followed at paragraphs 64 and 65:
"I do not find that the appellant would continue to live in this way ? as a result of fear that if he did involve himself in political or religious activities he would be persecuted ? he would continue to live in this way as while he holds political and religious views these are not so strong that he feels the need to become involved in ? promoting his? political or religious views.
I find that the appellant would continue to live the way he did ? as a matter of his own choice as opposed to the fact that if he did undertake these activities he would be at real risk?"
10. Mr Matthews said those conclusions followed the principles of HJ and HT and were justified both by reference to the background evidence and to the facts of the appellant's case.
11. I prefer the submissions for the respondent, and I find no error of law in the decision.
12. The grounds take paragraph 50 out of context, and they do not fairly reflect the decision as a whole. The judge's statement at paragraph 50 is the correct result of examination of the background evidence. It is not a statement of what the appellant must prove to make his case.
13. The judge goes on to conduct an analysis of the appellant's personal situation within the principles of HJ and HT; in particular, the approach explained by Lord Rodger at paragraph 82, although not directly cited. The judge's conclusions at paragraphs 64 and 65 are exemplary in terms of that authority.
14. The determination of the First-tier Tribunal shall stand.
15. No anonymity direction has been requested or made.

14 November 2016
Upper Tribunal Judge Macleman