PA/06053/2016

• Status of case: Unreported
• Hearing date: 4 Jan 2017
• Promulgation date: 8 Feb 2017
• Publication date: 25 Oct 2021
• Last updated on: 25 Oct 2021

The decision

The Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/06053/2016

THE IMMIGRATION ACTS

Heard at North Shields
Decision & Reasons Promulgated
On 4th January 2017
On 8th February 2017


Before

DEPUTY JUDGE OF THE UPPER TRIBUNAL FARRELLY

Between

Mr. A.T.A.
(ANONYMITY DIRECTION MADE)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

An Anonymity Direction is made.

Representation:

For the Appellant: Unrepresented.
For the Respondent: Mr. A McVeety, Home Office Presenting Officer.

DECISION AND REASONS

Introduction

1. The appellant in the First-tier Tribunal proceedings is the one who is appealing to the Upper Tribunal. Consequently, the parties are named as before.

2. The appellant claimed protection in December 2015 on the basis he fears persecution from the State. He said he is an Iranian national and is Kurdish. He is a Sunni Muslim. His brother, Mr ATM was born in 1986 and left Iran in 2008. He made a claim for protection in the United Kingdom a number of years earlier which was granted on appeal. The appellant said that his brother was a supporter of the left-wing Kurdish nationalist party Komala who fled in fear of the authorities.

3. The appellant said he was fearful of the Iranian authorities because of the family connection and said the authorities questioned him on several occasions about his brother, the last occasion being in 2008 shortly after his brother left. Furthermore, the appellant had been involved with a group called the Green Mountain Council and believes this would cause him difficulties.

4. The respondent accepted the appellant was Iranian. However, no risk to him was identified due to his brother's claimed activities. It was pointed out that the appellant had not experienced problems between his brother leaving in 2008 and the appellant coming to the United Kingdom in November 2015.

5. The Green Mountain Council is an environmental group which is accepted by the Iranian authorities and so any involvement by the appellant should not cause difficulties.

The First tier Tribunal

6. His appeal was heard by Judge of the First-tier Tribunal Hindson at Bradford in September 2016. Neither party was represented. The judge had the respondent's bundle which included his screening and substantive interview and documents the appellant had provided to the respondent. The appellant provided no additional documentation .The appellant attended and his brother, Mr ATM, was called as a witness. His brother gave evidence about his activities with Komala. The appellant claimed that the Green Mountain Council was a cover for a Kurdish group.

7. The judge did not find the appellant to be a credible witness. The appellant claimed that he had lost contact with his brother until two weeks before the hearing. His brother produced documentation showing he had been granted indefinite leave to remain. The judge was satisfied that they were siblings and that his brother has been granted refugee status. The judge commented on the point made by the respondent, namely, the appellant had lived in the family home for the last eight years without any serious difficulties.

8. The judge did not find the appellant would be at risk on return solely on the basis he had left the country illegally and was being returned as someone who had unsuccessfully claim protection. However, he would be at risk if his brother was a political activist and the Iranian authorities asked him if they had been in contact with each other in the United Kingdom (para 30). However, the judge stated that on the evidence presented he could not be satisfied that the appellant's brother had secured refugee status because of political opinion and concluded therefore the appellant would not be at risk as a consequence of his brother's activities.

9. The judge did not accept that Green Mountain Council is a political organisation and membership or support would not cause difficulties with the Iranian authorities. The judge did not find the appellant had taken part in any anti-government activities under cover of this organisation.

10. The appellant had made an additional claim based on the possibility of being required to do military service and his father's opposition to this. The judge concluded that neither his father's disapproval nor the prospect of conscription would found a claim for protection.





The Upper Tribunal

11. The application for permission to appeal was on the basis the judge had found his brother's evidence about his political activities consistent with that given by the appellant and had accepted he was granted refugee status yet doubted the appellant's own claim.

12. Permission to appeal was granted on the basis that it was open to the judge to seek a copy of the determination of the appellant's brother. The judge had accepted the relationship between the appellant and his brother but said there was no evidence as to the basis upon which his brother had secured protection beyond what he said. Having identified a potential risk factor it was arguably only just the judge should have sought a copy of the decision in his brother's appeal.

13. The respondent has replied by way of rule 24, pointing out that the burden of proof was upon the appellant and it was not for the tribunal to speculate in the absence of evidence the basis upon which he had been granted protection. In any event, the authorities in Iran had not shown any interest in the appellant for almost 8 years. It was submitted that if anything the judge went to far at paragraph 30 in concluding contact with his brother since coming to the United Kingdom would place him at risk. There was no challenge to the judge's conclusion in respect of Green Mountain Council.

14. I asked the appellant about representation. He said at one stage he did have advice but not any longer. He said that if returned he would be at risk for leaving the country illegally and for his involvement with Mountain Council. He said that one of his friends who had been involved with this group had been arrested. He said when he was a child he was questioned about his brother but nothing further happened because he was so young. He said the problem about return related to the treatment of Kurds in Iran. He said that if he was returned and was questioned about his brother he would tell the authorities the truth although on reflection he thought he might say he had not seen him.

15. The presenting officer submitted that the burden of proof is upon the appellant. Furthermore, the judge's comment at paragraph 30 that the appellant would not be expected to lie if questioned about his brother on return appears to be an unjustified extension of the principle set out in HJ Iran.

Consideration

16. The First-tier judge was faced with unrepresented appellant and no appearance on behalf of the respondent. The only documentation available was that contained in the respondent's bundle. The judge accepted that the person the appellant presented as his brother was in fact his brother. This brother had provided a driving licence and a UK identity card in the same name as that given. The documents gave his date of birth as 1986 which accorded with the account given by the appellant. Furthermore, the judge accepted his brother had been granted indefinite leave to remain as evidenced by the identity card presented. The judge accepted that they had not had contact for several years and met shortly before the hearing. However, beyond what the appellant's brother said there was no other evidence about the basis upon which he had obtained asylum.

17. A judge can only deal with the evidence presented. Whilst tribunals have an enabling function in the context of immigration appeals this does not mean a judge errs in law for not adjourning to seek evidence which may help an appellant. It was open to the appellant and his brother to bring along the determination.

18. In any event, there is nothing to suggest that had the decision been available the judge would have erred in law in dismissing the appeal. His brother was accepted as a person at risk by reason of political opinion. However, this has been reached on the basis of a very low standard of proof. On the claims made by the appellant and his brother the Iranian authorities were aware of his brother's activities in Iran. The point made by the respondent was that his brother left in 2008 at which stage the appellant was only nine years old. In the intervening years he had no trouble from the authorities.

19. The judge's comment at paragraph 30 that the appellant could not be expected to lie about his brother is not supported by any authority. At the hearing the appellant was ambivalent about whether he would mention his brother. Without more, it is difficult to see how this would materially enhance the risk for the appellant given that the Iranian authorities were aware of his brother.

20. In conclusion, I do not find the judge materially erred in law in not attempting to obtain the decision issued in the appeal of the appellant's brother. Consequently, the decision dismissing the appellant's appeal shall stand.

Decision.

The decision of First tier Judge Hindson dismissing the appeal shall stand. No material error of law has been established.



Deputy Upper Tribunal Judge Farrelly


An Anonymity Direction is made. Unless and until a tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify them. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of Court proceedings.