Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: pa/05230/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 21 April 2017
On 27 April 2017

Before

UPPER TRIBUNAL JUDGE GLEESON

Between

akam azad Mohammedi
(no anonymity order made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Khan, Counsel instructed by Barnes Harrild & Dyer
Solicitors
For the Respondent: Mr K Norton, a Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is an Iranian citizen of Kurdish ethnicity who came to the United Kingdom in November 2007 and made an application for asylum immediately. He was then a minor and was granted discretionary leave to remain until 4 January 2009. His previous asylum claim was refused on 31 August 2010 and was not successfully appealed.
2. On 26 March 2009, the appellant sought further leave to remain, which was refused. His appeal rights on that appeal were exhausted on 29 September 2010. The appellant did not then embark.
3. Five and a half years later, on 27 April 2016, the appellant made a further claim for asylum, humanitarian protection and human rights which was refused two days later, on 27 April 2016.
4. The appellant appealed to the First-tier Tribunal.
Country guidance: SSH and HR (illegal exit – failed asylum seeker) Iran CG [2016] UKUT 00308 (IAC)
5. In country guidance published in June 2016 in SSH and HR (illegal exit – failed asylum seeker) Iran CG [2016] UKUT 00308 (IAC) the Upper Tribunal considered the position of returnees to Iran who had left Iran illegally or unsuccessfully claimed asylum in the host country.
6. The Upper Tribunal found that there was no real risk to a person with no history other than being a failed asylum seeker with a history of illegal exit from Iran nor was there a risk of persecution to such person. The country guidance given was 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.”
7. At [32], the country evidence of Dr Kakhki was considered and discounted for the reasons there given. The judgment continued:
“32. …There are minimal examples of cases which were they to be taken at their highest could be said to be cases of ill-treatment on that basis and cannot be said, given the numbers returned to give rise to a real risk. In any event, as we have stated above, so little information is given but it is impossible to conclude that it was the fact of illegal exit or having made a failed asylum claim taken either alone or together that triggered adverse interest on return. To say with any confidence what the full circumstances in any of those cases were.”
8. At [34], the Upper Tribunal made observations concerning the risk on return for appellants whose sole basis of risk was their Kurdish ethnicity. Those observations were strictly obiter dicta and do not form part of the country guidance. They are nevertheless a summary of the Tribunal’s view of the evidence before it on that issue:
“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 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. Accordingly we conclude that it has not been shown that a person in the position of these appellants faces a real risk on return to Iran either on the basis of what would happen to them when questioned at the airport or subsequently if they were convicted of an offence of illegal exit. ...Prosecution for illegal exit is an outcome not generally experienced by such returnees, and where it does occur, the most likely sentence in relation to the illegal exit charge would be a fine. It has not been shown that there would be a real risk of prosecution under Article 500 for propaganda against the state on the basis of having made an asylum claim which was found to be false. Accordingly these appeals are dismissed.”
First-tier Tribunal decision
9. The First-tier Tribunal in dealing with the 2016 asylum claim was bound on Devaseelan principles by the findings of fact and credibility in the 31 August 2010 decision. In the 2010 decision, Immigration Judge Head held that the appellant’s account was riddled with unexplained inconsistencies and implausibilities such that it was not credible and he rejected the entire core account of political activity in Iran.
10. That was the Devaseelan starting point for the 2016 decision which was decided following country guidance from the Upper Tribunal on the risk to returnees who had made an illegal exit in SSH and HR (illegal exit – failed asylum seeker) Iran CG [2016] UKUT 00308 (IAC).
11. The First-tier Tribunal had before it a report by Dr Kakhki on the risk of return to Iran dated 5 December 2014 which is older than the evidence considered in SSH and HR which was up to date as of January 2016. In the First-tier Tribunal’s decision, the judge took account of the country guidance in SSH and HR, and of the evaluation of a more recent report from Dr Kakhki in that decision. It cannot be said that there is an error of law in applying the evaluation of the evidence by the Upper Tribunal in SSH and HR in those paragraphs, absent persuasive evidence to the contrary.
12. The Tribunal also had before it two reports by Dr E G H Joffé, one a generic report from October 2014 and one in respect of a different appellant dated September 2012, some five years ago. I am satisfied that appropriate weight was given to these reports which are now significantly out of date. There does not appear to be any evidence that the specific report which related to another appellant was advanced with the permission of Dr Joffé.
Permission to appeal
13. The challenge to the First-tier Tribunal decision is that the First-tier Judge misunderstood and misapplied SSH and ought to have given different weight to the report of Dr Kakhki. The weight to be given to an expert report or any witness evidence is a matter for the fact-finding Tribunal absent an error of fact at the level of error of law as set out in R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982) at paragraph 90 in the judgment of Lord Justice Brooke.
14. Permission to appeal was granted by First-tier Tribunal Judge Ford who considered it unarguable that the First-tier Tribunal had misunderstood the finding in SSH that ethnic Kurds were not at risk on return but that arguably:
“The [First-tier Tribunal Judge’s] assessment of his Kurdish ethnicity when taken together with his illegal exit, his asylum claim, the length of his absence and the criminal investigation that might await him on return could cumulatively justify a finding of real risk, particularly given the expert’s opinion as to the risk of ill-treatment during the initial questioning on return to Iran.”
Rule 24 Reply
15. The Secretary of State responded in a Rule 24 reply on 14 March 2017 as follows:
“2. The respondent opposes the appellant’s appeal. In summary, the respondent will submit inter alia that the judge of the First-tier Tribunal directed himself appropriately.
3. It will be argued that the judge has correctly interpreted and applied the case of SSH and HR (illegal exit: failed asylum seeker) Iran CG [2016] UKUT 00308 to the appellant’s specific profile and is clearly aware of the exacerbating factors for a Kurdish returnee (see paragraph 34).”
Rule 15(2A) application and application for extension of time to file Rule 24 Response
16. At the beginning of the hearing this morning I was handed a letter which had been received from the applicant’s solicitors posted yesterday which purports to be an application under both Rule 15(2A) and for extension of time to file a Rule 24 reply. I note that the application grounds were not settled by Counsel who appears today but were settled by his solicitors.
17. There is no evidence from the solicitors themselves in the form of a witness statement or statement of truth explaining why the applications were not made on notice, or why the evidence of Mr Joffé is produced so late in the day. Nor is there any explanation as to why the solicitors consider that the unreported decisions should be admitted.
18. Beginning with the extension of time for Rule 24 response, I note that the directions which accompanied the grant of permission provided that any response to the respondent’s Rule 24 notice should be served by the appellant not less than ten days before the resumed hearing.
19. The application grounds assert that it was not possible to consider obtaining an up to date expert report until such time as the respondent had filed her Rule 24 reply, the applicant being legally aided, and that they could not therefore make any response until Mr Joffé’s evidence was received.
20. The letter instructing Mr Joffé has not been disclosed and so we do not know when it was sent or what he was asked to do in relation to this appeal. I am not satisfied that it would not have been possible to make a proper application for extension of time on notice, as soon as Mr Joffé was instructed, nor that I have seen any satisfactory explanation for not disclosing it to the respondent in good time before the hearing.
21. I decline to extend time for the Rule 24 response, which is not admitted.
22. I have regard to the requirements of paragraph 15(2A) of the Upper Tribunal Rules which state that:
“In an asylum case or in an immigration case -
(a) if a party wishes the Upper Tribunal to consider evidence that was not before the First-tier Tribunal that party must send or deliver a notice to the Upper Tribunal and any other party -
(i) indicating the nature of the evidence, and
(ii) explaining why it was not submitted to the First-tier Tribunal, and
(b) when considering whether to admit evidence that was not before the First-tier Tribunal the Upper Tribunal must have regard to whether there has been unreasonable delay in producing that evidence.”
23. The appellant seeks to adduce Mr Joffé’s report and three unreported cases, only one of which is attached to the application and none of which appear to me to meet the standard for adducing unreported cases. Mr Joffé’s report, it appears, was directed principally at questioning the validity of the country guidance in SSH and HR, and the obiter dicta at [34] in that decision. That is not a matter for expert evidence, but for legal argument. Mr Khan has argued the point before me.
24. I am satisfied that there has been unreasonable delay in producing the evidence: I have been given no good reason why this evidence was not obtained for the First-tier Tribunal hearing. I therefor refused to admit the evidence of Professor Joffé and the unreported decisions.

Discussion
25. I must consider whether these grounds for review disclose any material error of law in the decision of the First-tier Tribunal. I am not satisfied that they do. The First-tier Tribunal did not err in taking the 2010 decision as the starting point for assessment of the present appeal, nor in having regard to the country guidance in SSH and HR. Indeed, in both cases, it would have been an error of law to fail to do so.
26. As regards the weight given to the evidence of Dr Kakhki, the evidence produced to the First-tier Tribunal in this appeal was significantly older than the report, and oral evidence, which the Upper Tribunal assessed during the country guidance hearing in 2016. The First-tier Tribunal was unarguably entitled to prefer the Upper Tribunal’s assessment of the later evidence of the same witness.
27. In considering the risk to a person returning whose only risk factor was being Kurdish, the First-tier Tribunal was entitled to have regard to the observations in [34] of the country guidance case, as findings of fact made by the Upper Tribunal on the evidence before it in 2016. There was no reliable evidence before the First-tier Tribunal to the contrary and the Judge did not err in placing weight on those observations.
28. For the above reasons, I am not satisfied that there is any material error of law in the decision of the First-tier Tribunal and I dismiss the appeal. The decision of the First-tier Tribunal stands.
Conclusions
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
I do not set aside the decision.

Signed: Judith A J C Gleeson Date: 26 April 2017

Upper Tribunal Judge Gleeson