Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-001198

First-tier Tribunal No: PA/50196/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

29th April 2025

Before

UPPER TRIBUNAL JUDGE O’BRIEN
DEPUTY UPPER TRIBUNAL JUDGE RHYS-DAVIES

Between

AS
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE
FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms. S. Alban of Seren Legal Practice
For the Respondent: Ms. S. Rushforth, Senior Home Office Presenting Officer

Heard at Cardiff Civil Justice Centre on 20 March 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellant is granted anonymity because he is an asylum seeker and the protection of his safety outweighs the presumption in favour of open justice.

No-one shall publish or reveal any information, including the name or address of the Appellant, likely to lead members of the public to identify him. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

1. The Appellant claims to be an Iranian national. He first claimed asylum as long ago as 20 May 2013. The Respondent refused that claim on 12 June 2013 and his appeal against that refusal was dismissed by First-tier Tribunal Judge Trevaskis in a Decision and Reasons promulgated on 1 April 2014 (“Judge Trevaskis’s Decision”).

2. The Appellant was not removed from the UK. He made various applications to the Respondent over the following years. Between 2017 and 2019, the Appellant was granted leave to remain on family and/or private life grounds. His application to extend that leave was refused and he withdrew his appeal against that refusal before it came to a hearing.

3. On 17 November 2021, the Appellant submitted further fresh representations in support of his claim for asylum. The Respondent refused this on 29 December 2022, but with a right of appeal. The appeal was heard by First-tier Tribunal Judge Curtis on 21 December 2023 and dismissed in a Decision and Reasons promulgated on 3 January 2024 (“Judge Curtis’s Decision”).

4. We note here that [3] of Judge Curtis’s Decision states that the Respondent’s decision under appeal is dated 30 May 2022, but that is not borne out by the documents. Nothing turns on this mistake.

5. It is against Judge Curtis’s Decision that the Appellant now appeals.

Background

6. The Appellant’s case is that he is a Kurdish Iranian and that he is at risk of persecution by the Iranian authorities on account of his political opinion. The Appellant says his father was arrested as a member of PJAK and that he fled Iran because the authorities were looking for him on suspicion of the same. The Appellant also relies on his sur place activities against the Iranian government at protests and on social media.

7. Judge Curtis made the following findings at [18]ff. of his Decision:

(i) Judge Trevaskis’s Decision is his starting point, but not necessarily his end point [18] – [21];

(ii) Judge Trevaskis made various adverse credibility findings [20];

(iii) The principal issue before Judge Curtis was the Appellant’s nationality [22];

(iv) Judge Trevaskis did not make a finding in terms that the Appellant was Iranian or not [23] – [25];

(v) It is possible to extrapolate from Judge Trevaskis’s other findings that he rejected the Appellant’s claim to be Iranian [25] – [28];

(vi) Judge Trevaskis’s findings did not establish a “firm starting point” on the nationality issue, so he must determine the matter for himself, taking the previous observations into account [29];

(vii) The Appellant’s lack of knowledge about Iran was limited [30];

(viii) It is surprising that the Appellant was unaware of the Sardasht massacre. While it had occurred before he was born, Sardasht is only around 70km from where the Appellant says he lived. The massacre is significant event for Iranian Kurds and it is surprising he had not learned of it through his parents or uncle [31];

(ix) The Appellant’s knowledge of the international dialling code for Iran was not inconsistent with the suggestion he has been able to contact his family. That is significant in the context of the Appellant’s other claims. The Appellant claims that despite being only 17 when he arrived in the UK, and despite the emergency of his family’s efforts to get him out of Iran and to Europe after his father was arrested and he himself became wanted, he has not spoken to any of his family since he arrived to tell them he was safe. This is almost impossible to believe and is beyond the range of reasonable responses for him to have [33];

(x) The Appellant’s claim that to contact his family would put them at risk was not accepted. On the Appellant’s account the authorities know his name and his father’s name (having already arrested him). The authorities would likely know the identities of the Appellant’s mother and sister already. Even if their family telephone line was being monitored some 12 years after the Appellant had left, it is unlikely that him calling them would trigger any adverse interest in them [33];

(xi) The Appellant’s oral evidence suggested, at the very least, that he had received some kind of update about his father, which was difficult to reconcile with his claim to know nothing about his family [34];

(xii) The Appellant could quite easily resolve the nationality dispute by arranging for his Iranian ID card to be sent to him. The ID card, which the Appellant had said had been left with his family, was readily available. It would go to the heart of proving his nationality, yet he had failed to take any steps to obtain it [35];

(xiii) Judge Trevaskis had referred to the Red Cross family tracing service, of which Judge Curtis was also aware. There was no evidence that the Appellant had attempted to use that service, which might reasonably have been expected of him, if his claimed lack of family contact were true [36];

(xiv) Judge Trevaskis did not make a finding accepting the Appellant’s claimed Iranian nationality. Judge Trevaskis found the Appellant’s claim to lack credibility and rejected it. In the 10 years since then, the Appellant had had ample opportunity to arrange for his Iranian ID card to be sent to him. Instead, he continued to maintain the implausible account that he has had no contact with his family since he arrived in 2011. For the reasons already set out, the Appellant failed to prove to the lower standard that he is an Iranian national [37];

8. At [38], Judge Curtis therefore concluded that as the Appellant would not be returned to Iran, the asylum (and any other protection appeal) must fail. The Appellant’s Article 8 ECHR appeal was also dismissed, for the reasons set out at [39] – [41].

9. The Appellant made an in-time application for permission to appeal. Permission was refused by another First-tier Tribunal Judge. The Appellant’s renewed application was out of time by a few hours, but time was extended by Upper Tribunal Judge Smith who granted permission on 19 April 2024.

10. Ground 1 pleads that Judge Curtis erred in his consideration of Judge Trevaskis’s findings. Although Judge Trevaskis made some adverse findings, these did not relate to nationality. Further, other findings by Judge Trevaskis show that he did make a clear finding that the Appellant is Iranian. The Appellant therefore argues that Judge Curtis could not rationally find to the contrary.

11. Ground 2 pleads that Judge Curtis then erred in his assessment of the Appellant’s credibility by failing to have regard to material evidence and failing to provide adequate reasons for his findings.

12. UTJ Smith gave permission on both Grounds, with the observation that Ground 2 would not have merited permission independently of Ground 1, as it appears to be a disagreement with Judge Curtis’s findings.

13. The Upper Tribunal then made Directions to bring the appeal to a hearing before us.

The Hearing

14. The Appellant’s representatives uploaded to CE-File a consolidated bundle of 1658 pages (“CB1-1658”).

15. Ms. Alban relied on both Grounds.

16. Ms. Rushforth confirmed that the Respondent opposed the appeal and that there was no r.24 response. The Respondent’s position is that Judge Curtis directed himself correctly regarding Judge Trevaskis’s findings and reached findings that were open to him.

Decision

17. We find that there is no arguably material error of law in this case. We reach that conclusion for the following reasons.

18. As Ms. Alban ultimately accepted before us, the question of the Appellant’s nationality was a point in dispute in proceedings before Judge Curtis.

19. That must be right, given what is set out in the reasons for refusal letter and in the Respondent’s Review. It does not matter that the Respondent did not seek to argue that Judge Trevaskis had made a finding that the Appellant is not Iranian. It does matter that the Respondent made clear that nationality was in issue.

20. In the circumstances, it is immaterial that the Respondent had referred to the Appellant as returning to Iran in her rejection of one of the Appellant’s previous applications (CB73) and as a national of Iran when granting him leave to remain on family life grounds in 2017 (CB64). It is also immaterial, as UTJ O’Brien pointed out at the hearing, that the Respondent agreed to treat the Appellant’s most recent application as a fresh claim on the basis of a possible risk of persecution on return to Iran, given the low threshold that applies when considering whether or not a fresh claim is made out.

21. It was therefore necessary for Judge Curtis to make findings on nationality

22. Contrary Ms. Alban’s arguments, Judge Trevaskis did not make a clear finding that the Appellant is an Iranian national. Paragraphs [16], [47], [49] – [50] and [61] of Judge Trevaskis’s Decision do not contain such a finding, even if they refer to the Appellant having family ties there.

23. It follows that we find that Judge Curtis was right to proceed as he did, by taking Judge Trevaskis’s findings as his starting point, and in concluding that there was no prior express finding on nationality.

24. Judge Curtis’s approach was entirely in accordance with Devaseelan* [2002] UKIAT 00702 and, contrary to what is argued in Ground 1, he did not improperly depart from the findings made previously.

25. Ground 1 therefore reveals no arguable error, let alone an arguably material one.

26. Turning to Ground 2, Ms. Alban confirmed to us that Judge Trevaskis’s Decision was not appealed. Judge Curtis therefore cannot be criticised for taking Judge Trevaskis’s unchallenged credibility findings as his starting point. Judge Curtis then correctly proceeded to undertake his own credibility assessment in that context. Judge Curtis’s findings were open to him for the reasons he gave.

27. We find that Ground 2 presents no arguable error of law either. We agree with both UTJ Smith when granting permission, and with Ms. Rushforth before us, that this is no more than a disagreement with Judge Curtis’s findings and an attempt to reargue the Appellant’s case.

Notice of Decision

1. The Judge’s decision did not involve the making of an error of law.

2. The Judge’s decision stands and the Appellant’s appeal is dismissed.

A. Rhys-Davies

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

16 April 2025