Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case Nos: UI-2024-004120

First-tier Tribunal No: PA/53800/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 17 March 2025

Before

UPPER TRIBUNAL JUDGE KEBEDE
UPPER TRIBUNAL JUDGE PICKUP SITTING IN RETIREMENT

Between

MF
(Anonymity Order made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr V Jagedesham, instructed by GMIAU (Greater Manchester Immigration Aid Unit)
For the Respondent: Ms E Blackburn, Senior Home Office Presenting Officer

Heard at Manchester Civil Justice Centre on 7 March 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.

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. This is a decision to which both judges have contributed.

2. The appellant is a citizen of Iran born in 1988. He appeals, with permission, against the decision of the First-tier Tribunal dismissing his appeal against the respondent’s decision to refuse his protection and human rights claim further to a Deportation Order made against him under section 32(5) of the UK Borders Act 2007. He has a lengthy immigration and criminal history, which we summarise as follows.

3. The appellant arrived in the UK in December 2000 as a child of 12 years of age. He was born in Dubai but moved to Iran with his family as a baby/child (the evidence is inconsistent in that regard) and remained there until he came to the UK with his father who subsequently abandoned him and his brother, leaving them with an aunt. From the age of 14 he was placed in the care of Oldham social services. He was granted leave to remain until March 2009. He met his partner SB in May 2008 and on 27 February 2009 he applied for indefinite leave to remain. His daughter L was born in October 2009.

4. On 27 November 2009 the appellant was convicted of possession of ammunition contrary to the Firearms Act and was sentenced to 12 months in prison. He was released on 26 February 2010. The respondent instituted deportation proceedings against him. His appeal against the deportation decision was allowed in February 2012 on Article 8 grounds, with the Tribunal having regard to his troubled teenage years and past criminal behaviour, but also to his more recent maturity upon becoming a father and his educational achievements and employment aspirations. As a result of the decision of the First-tier Tribunal, the appellant was granted a further three years’ discretionary leave until 2012.

5. In 2012 the appellant was charged with drugs offences, including conspiracy to supply Class A drugs, as a result of admissions he had made during his previous criminal trial and was convicted and sentenced to a total of six years’ imprisonment. The sentencing remarks of the Crown Court Judge are discussed in some detail at [9] of the decision of the First-tier Tribunal dated 15 July 2015, to which we shall refer later.

6. The appellant had, in the meantime, applied for indefinite leave to remain. The respondent refused to vary his leave and made a decision on 28 October 2013 to refuse leave and remove him from the UK on the basis of his criminal behaviour and convictions. The appellant successfully appealed that decision. His appealed was allowed on 2 July 2014 by the First-tier Tribunal on Article 8 grounds, again with regard to his family life with his partner and child. The respondent sought, but was refused permission to appeal the decision.

7. The respondent then proceeded to make a deportation order against the appellant on 24 July 2014 pursuant to section 32(5) of the UK Borders Act 2007. The appellant sought to resist deportation on Article 8 grounds, and appealed against the respondent’s decision to refuse his human rights claim. That appeal came before the First-tier Tribunal on 29 June 2015 and was allowed in a decision promulgated on 15 July 2015 (as referred to previously at [5]). The First-tier Tribunal Judge in that appeal found that the family life exception to deportation was met by the appellant, on the grounds that it would be unduly harsh for his daughter L to grow up without her father, and that whilst the private life exception was not met, it was accepted that the appellant would face very significant obstacles to integration in Iran. On the basis of the appellant’s unhappy and troubled childhood, his lack of offending since 2009 albeit having been in prison for much of that time, his family life and his educational achievements and employment intentions and other aspects of rehabilitation, as well as the difficulties he would encounter in re-integrating into Iranian society, the judge concluded that there were very compelling circumstances outweighing the public interest in his deportation. Significantly, in allowing the appeal, the judge accepted that the appellant’s offending days were behind him, that he was reformed, and that he was in a committed family relationship. She expressly said that it was the peculiar chronology of the case (the offending which led to the six year sentence having taken place before the conviction and imprisonment for possession of ammunition) which had given the appellant the chance to succeed and that should the appellant commit any further offences it was difficult to see how he could defeat another attempt to deport him.

8. The Tribunal’s decision was upheld on appeal. The Deportation Order previously signed against him on 24 July 2014 was revoked. No further leave was granted, however, because the appellant then incurred a further custodial sentence. On 22 January 2018 he was sentenced to a total of nine years’ imprisonment for failing to comply with a Serious Crime Prevention Order, conspire/produce a psychoactive substance and encourage/assist in commission of one or more indictable offences believing one/more will be committed.

9. The appellant lodged an asylum claim on 27 July 2018 but withdrew the claim a year later. The respondent then made a decision to deport the appellant on the basis of his conviction on 22 January 2018. The appellant responded to a stage 1 deportation decision issued on 19 August 2021, making representations on asylum, humanitarian protection and human rights grounds on 14 September 2021. It was asserted in the representations that he would be at risk on return to Iran as he would be required to tell the authorities that he had been out of the country since the age of 12, that he was being deported for drugs offences, and that he was not a practising Muslim. He would be considered to be an apostate, a draft evader, a convicted drugs offender and to have a perceived political opinion. It was asserted that he was at risk under Article 3 on those bases. Further, his deportation would be in breach of Article 8 on the grounds of his family and private life established in the UK.

10. A section 72 notice was issued to the appellant on 7 October 2021 whereby he was invited to seek to rebut the presumption under section 72(6) of the Nationality, Immigration and Asylum Act 2002 that he constituted a danger to the community. His legal representatives made representations in response on 2 November 2021. A country expert report was also produced addressing the risks arising from double jeopardy, ammunition and drugs offences, apostasy, draft evasion, extra-marital sex, as well as destitution. The appellant was also interviewed about his asylum claim in November 2021.

11. On 8 June 2023 the respondent made another Deportation Order against the appellant under section 32(5) of the UK Borders Act 2007 and on the same date issued a Stage 2 deportation decision. It is that decision which has given rise to this appeal.

12. In that decision, the respondent considered that the appellant had failed to rebut the presumption in s72 as he continued to be a danger to society, and certified that the presumption applied to him. As such he was excluded from the protection of the Refugee Convention and from humanitarian protection. The respondent considered the appellant’s claim that he feared the Iranian authorities and the Iranian regime due to family issues, his UK offending history, his lack of conformity with Islam and his belief in Natural Law, the prospect of enforced military service and his general westernised lifestyle, but did not accept that he would be at risk on any of these bases and considered that his deportation would therefore not be in breach of Article 3. As for Article 8, the respondent did not accept that the appellant was socially and culturally integrated in the UK, having accrued 15 convictions for 40 offences between April 2005 and January 2018, and was therefore not satisfied that he met the private life exception to deportation. The respondent, when considering the family life exception, noted that the appellant and SB were no longer in a relationship and that his daughter L resided with her mother, and did not accept that he was in a genuine and subsisting relationship with L or that it would be unduly harsh for L to remain in the UK if he was deported. The respondent did not accept that there were very compelling circumstances which outweighed the public interest in the appellant’s deportation and considered that his deportation would not breach Article 8.

13. The appellant’s appeal against that decision was heard in the First-tier Tribunal on 13 June 2024. The appellant gave oral evidence before the Tribunal, as did his probation manager and his daughter’s maternal grandmother. It was the appellant’s evidence that if he was returned to Iran he would be treated with suspicion because he had not been in Iran since he was 12 years of age and he would be detained for lengthy questioning and would suffer serious harm or persecution, because he no longer followed the Islamic faith and would be viewed as an apostate, because his western way of life would be a factor that would count against him, because he would be considered an infidel due to his past offences and consumption of alcohol, and because he would also potentially face further prosecution for his drug offences in Iran. He claimed that he could not speak Farsi. He claimed further that, whilst he had not been using his own name and had instead adopted his aunt’s married name in the UK, details of his convictions and activities could still be found in a google search. The judge also noted the appellant’s evidence that, prior to being released in June 2016, he had already decided to embark on a fresh life of crime.

14. The judge considered the s72 presumption. He had regard to the three OASys reports before him as well as the evidence of the appellant’s probation manager and concluded that the presumption, that the appellant continued to be a danger to the community, had not been rebutted and that, as such, he could not pursue an appeal under the Refugee Convention. He also concluded that the appellant was excluded from humanitarian protection. The judge then turned to the question of risk on return under Article 3. He was satisfied that, whilst the appellant was a follower of Natural Law, that was the extent of his belief, and he was not someone who had shown that he openly wished to demonstrate his religion. The judge therefore did not find it reasonably likely that the appellant would seek to behave differently in Iran and did not accept that his following of Natural Law would on its own place him at risk of serious harm. As for the appellant’s criminal offending, the judge was not satisfied that he faced double jeopardy for his offending behaviour. He was not satisfied that the appellant’s personal life would become known to the Iranian authorities, noting that he had lived his life in the UK under the name of M F whereas he would be returned under the name M M N. As for whether the appellant would disclose his past under questioning and be at risk on that basis, the judge considered that the risk contained a substantial element of speculation and did not accept that he would be risk. The judge did not accept that the appellant would face harm on the grounds of not having undertaken military service in Iran and did not accept that there was any risk arising out of a perceived political opinion from his aunt’s previous political involvement in Iran. The judge concluded that the appellant would not, therefore, be at risk of serious harm on return to Iran. Finally, the judge considered Article 8. He concluded that the private life exception to deportation applied but that the family life exception did not, as it would not be unduly harsh on the appellant’s daughter if he were to be deported. He found that there were no very compelling circumstances over and above the private life exception and that the appellant’s deportation would not breach his Article 8 rights. The judge accordingly dismissed the appeal on all grounds, in a decision promulgated on 18 June 2024.

15. The appellant sought permission to appeal the judge’s decision to the Upper Tribunal on the following grounds. Firstly, that the judge had failed to consider or address the risk arising from him being questioned about his asylum claim at the airport and his disclosing the fact that he claimed asylum because he no longer followed Islam and so would be seen as an “apostate” and because he was westernised. Secondly, that the judge failed to consider or address the risk arising from the appellant not following Islam in Iran and therefore being viewed as an apostate. Thirdly, that the judge erred in concluding that the appellant would not be at risk from the various media articles referring to his drug offences and “playboy lifestyle”, which were accessible online and via a simple open internet search.

16. The grounds made clear that there was no challenge to the judge’s decision on s72 and on Article 8.

17. Permission was refused in the First-tier Tribunal but was subsequently granted upon a renewed application in the Upper Tribunal, as follows:

“2. It is arguable that the judge erred in failing to consider the risk to the appellant if he were to be questioned on arrival in Iran about the basis of his asylum claim, given the findings regarding the appellant’s apostasy.

3. It is arguable that, having found that the appellant might be at risk if the articles reporting his lifestyle and convictions came to the attention of the Iranian authorities the judge erred by failing to take into account that the appellant would be required to provide the Iranian authorities with his name, address and telephone in the UK (XX (PJAK - sur place activities - Facebook) Iran CG [2022] UKUT 23 (IAC)) thus giving rise to a real risk that this would lead to the disclosure of the name the appellant has lived under in the UK and to which the articles refer, exposing him to risk. “

18. The matter came before ourselves for a hearing. The respondent did not produce a rule 24 response. Both parties made submissions.

19. Mr Jagedesham submitted, with regard to the first ground, that the judge had failed to deal with what arises from PS (Christianity - risk) Iran CG [2020] UKUT 46, namely the consequences of the appellant being questioned at the airport on arrival in Iran about his asylum claim in the UK. The appellant’s claim was predicated on genuine beliefs and the judge had therefore failed to deal with what would happen to him when he said, on questioning in Iran, that he followed Natural Law and a non-Islamic lifestyle. As for the second ground the judge had failed to address the risk to the appellant of not following Islam in Iran and of being viewed as an apostate. With regard to ground three, Mr Jagedesham submitted that the appellant’s non-Islamic lifestyle would be revealed by internet searches and that the judge was wrong to say that his use of another name would prevent his details being revealed on a search, when in fact a google search on his first name led to articles about his playboy life, involvement with drugs and non-Islamic lifestyle, as referred to in the evidence and submissions at [28] and [43] of the judge’s decision.

20. Ms Blackburn submitted, with regard to the second ground, that the judge had adequately dealt with the issue of apostasy and had properly applied the guidance in PS. The judge properly found that there would be no need for the appellant to supress his beliefs. There was nothing in the objective evidence or the evidence before the judge to say that living in Iran in a non-religious way would put the appellant at risk. As for the first and third grounds, Ms Blackburn submitted that the judge had followed the guidance in XX (PJAK, sur place activities, Facebook) Iran (CG) [2022] UKUT 23 and was alert to the question of risk but was entitled to be satisfied that the appellant was not at risk on the basis claimed. She submitted that SSH and HR (illegal exit: failed asylum seeker) Iran (CG) [2016] UKUT 308 made it clear that a person would not be at risk as a failed asylum seeker. There was nothing to suggest that there was anything special about the appellant’s claim to put him at risk. There was no reason for the appellant to come to the attention of the Iranian authorities as he has no past profile, he left Iran legally, he had not preached, he did not attend church and he did not belong to any organised religion .There was no need for the appellant to reveal anything. As for the appellant’s previous criminality, that was not one of the protected characteristics in HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31 and in any event it was too speculative to say that internet searches would be conducted which would reveal his history. The judge properly addressed that. There was no reason why the Iranian authorities would be interested in the appellant’s lifestyle. The judge was entitled to conclude as he did.

21. Mr Jagedesham responded, referring to the risks of ill-treatment arising from detention of over a week and the risks arising as an apostate.

Analysis

22. We have given careful consideration to the challenges to the judge’s findings but find there to be no merit in any of them. The judge’s decision is a detailed, careful and comprehensive one which assesses all the evidence and considers the submissions made in regard to that evidence against the relevant country guidance. We reject the assertion in the grounds that there was a failure by the judge to consider the relevant risks to the appellant and we find no errors in his assessment of risk on return.

23. We turn first of all to the second ground, as Ms Blackburn did. It is asserted in that ground that the judge had failed to consider that the appellant, as someone who had renounced Islam and had followed natural law instead and who would not follow the Islamic faith in Iran, would be viewed as an apostate and would be at risk as a consequence. We agree with Ms Blackburn that that was a matter fully and carefully dealt with by the judge at [114] to [120]. At [115] the judge considered the competing arguments in regard to the perception of the appellant by the Iranian authorities. He had regard to findings previously made in that regard, albeit in the context of Article 8, by the First-tier Tribunal in the decision of 15 July 2015 (at [30] of the decision), whereby the FTT implied that it would be unduly speculative to say that the appellant would face serious harm on such a basis. He took account of arguments made that a person leaving the Muslim faith could be charged with apostasy, but at [119] he concluded that there was no reason for any risk arising in the appellant’s case, when that was not a matter which he had ever showed that he wished to demonstrate openly and was simply a belief that he held. The judge did not consider that that would lead to any risk of being considered an apostate, and we do not find that he erred in so finding. Furthermore, as Ms Blackburn submitted, there was no evidence before the judge to suggest that living in Iran in a non-religious way, including not attending Friday prayers or attending at the mosque, would be something that would put him at risk, as Mr Jagedesham appeared to suggest. In the circumstances we do not find that ground to be made out.

24. Grounds one and three raise the issue of what the appellant would say when asked about his asylum claim in the UK, pursuant to the guidance in PS. The grounds assert that the judge failed to consider the risks arising out of the matters he would have to disclose when giving details of his asylum claim on arrival in Iran, namely the fact that he no longer followed Islam and that he was westernised, as well as his past behaviour and criminal offending. However that was a matter considered by the judge, at [128] and [135], where he had regard to the claimed risks faced by the appellant of disclosing his past under questioning. The judge found that there was a substantial amount of speculation in the country expert report about the risks the appellant would face in that regard, and he concluded that the country evidence otherwise did not support the claim that there would be such risks. We are satisfied that the judge reached his conclusions in that respect with regard to the relevant country guidance in PS and XX, to which he specifically referred.

25. In so far as Mr Jagedesham appeared to be suggesting that, in not being expected to lie, an applicant is in effect expected to reveal everything about himself, we consider that he is attempting to extend the principles in PS and HJ (Iran) beyond what was intended. In XX, the Tribunal found at [9] of the headnote that “Decision makers are allowed to consider first, what a person will do to mitigate a risk of persecution”. We consider there to be no reason why the judge ought to have considered that the appellant would be required to disclose information to the Iranian authorities which they would not otherwise have known about and, further, which would not otherwise require him to change his behaviour contrary to the principles in HJ (Iran). Indeed the case was not presented to the FTT on such a basis. The skeleton argument and submissions before the FTT simply asserted that the appellant would be investigated about his asylum claim and went on to address each aspect of his claim in relation to such an investigation. The judge, quite properly, addressed each of those aspects in turn, from [114] to [132], addressing the appellant’s religious beliefs at [114] to [120], his criminal past at [121] to [124], and the issue of him being westernised at [125] to [126]. He concluded, for reasons properly given, that there was nothing in those aspects of the appellant’s claim which, upon investigation by the authorities, would lead to any risk of harm, given that he never had, and had no intention of, expressing any particular religious beliefs, and that his behaviour and ‘playboy’ lifestyle was something of the past and would, in any event, be unlikely to become known to the Iranian authorities.

26. Leading on from that is the assertion, in the third ground, that the judge was wrong to find that the appellant would not be identified in a google search owing to his change of name, when a search of his first name was sufficient to identify him and revealed articles about his past ‘playboy’ life and criminal offending. However it was clearly the judge’s view, having had regard to all the evidence, that such a suggestion was speculative and that it was unlikely that the Iranian authorities would find that information from a search of the name he was using in the UK. We consider that it was open to the judge to conclude as such and we agree with Ms Blackburn’s submission to that effect. In any event, the matter was raised in relation to the argument that the appellant was at risk of being prosecuted again in Iran owing to his past drugs offences, an argument which relied upon the country expert report and which the judge rejected for reasons properly given, at [122] to [124]. The judge found that the appellant did not face double jeopardy for his offending behaviour. That is not a finding which was challenged in the grounds and we consider in any event that it was a conclusion which the judge was entitled to reach.

27. As for the revelation in the media articles of the appellant’s past lifestyle and criminal history in itself, we agree with Ms Blackburn that there was nothing before the judge to suggest that the Iranian authorities, even if they found the information from an internet search, would have any interest in that, nor any interest in him for any other reason. The events dated back to 2018 and the appellant had, since that time, changed his lifestyle, as the judge noted at [126]. As Ms Blackburn submitted, the appellant had left Iran lawfully and he was not a person who had ever professed or expressed any adverse political beliefs. He had not expressly renounced Islam nor had he expressed any alternative beliefs, but simply held certain beliefs which he had had no desire to disclose and which, as the judge found, he had no intention of disclosing publicly on return to Iran. He had no profile in which the Iranian authorities would have any particular interest. Even if he admitted to being a non-practising Muslim, there was no evidence that that would in itself be a reason for further questioning leading to ill-treatment. Accordingly, the judge was perfectly entitled to find, as he did at [135], that even if the appellant was interviewed on arrival, there was no reason why there would be further interest in him and no reason to conclude that he would be subjected to ill-treatment leading to serious harm.

28. For all these reasons we are satisfied that the judge did not err in law as the grounds assert. The judge reached a decision which was entirely open to him on the evidence before him. We reject the assertion that he failed to consider or address the risks arising for the appellant and we conclude that, on the contrary, he addressed all relevant matters in the context of the country guidance, providing cogent reasons for the conclusions reached. The grounds are not made out and the judge’s decision is accordingly upheld.

Notice of Decision

29. The making of the decision of the First-tier Tribunal did not involve a material error on a point of law requiring it to be set aside. The decision to dismiss the appeal stands.

Signed: S Kebede
Upper Tribunal Judge Kebede

Judge of the Upper Tribunal
Immigration and Asylum Chamber

11 March 2025