United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER

Case No: UI- 2024-003473 (PA/01001/2022)

 

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

On 1 ^st of April 2025

 

 

Before

 

UPPER TRIBUNAL JUDGE BRUCE

 

 

Between

 

RM (IRAN)

Appellant

 

AND

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

 

For the Appellant: Mr Winter, Counsel instructed by Maguire Solicitors

For the Respondent: Mr Mullen, Senior Home Office Presenting Officer

 

 

Heard in Edinburgh on 26 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 or any member of his family. Failure to comply with this order could amount to a contempt of court .

 

DECISION AND REASONS

1.              The Appellant is a national of Iran born in 1999. He appeals with permission against the 4 March 2023 decision of the First-tier Tribunal to dismiss his appeal on protection grounds.

2.              The basis of the Appellant's historical claim was that he was suspected by the Iranian authorities of involvement with banned political party Komala. That was rejected on credibility grounds by both the Respondent and First-tier Tribunal. There being no challenge to those conclusions, we need say no more about it.

3.              This appeal instead concerns the second plank of the Appellant's case, which has arisen , sur place, since his arrival in the UK. He has, it is accepted, attended a number of demonstrations and has conducted online activity critical of the Iranian regime. Before the First-tier Tribunal the Appellant submitted that this would place him at risk on return to Iran, notwithstanding the Tribunal's finding that none of this was motivated by a genuinely held political belief. On the Appellant's behalf, Mr Winter challenges that conclusion on the ground that it insufficiently reasoned, and inconsistent with case-law.

 

The First-tier Tribunal's Decision

4.              After a detailed examination of the historical claim, the First-tier Tribunal turns to the sur place activity at §67 of its decision. It describes the evidence that the Appellant had a 'low profile' attendance at three Komala-led demonstrations in the UK, that is to say he was there, but did not speak or take part in the organising. He had also produced some evidence of Facebook activity, but this was not in the format prescribed in XX (PJAK, sur place activities, Facebook) [2022] UKUT 23 (IAC), and did not indicate that any of it would have come to the attention of the Iranian authorities. In keeping with its analysis of the Appellant's general credibility, the Tribunal found this limited sur place activity to be cynically motivated. It then says this, at its §77:

"I accept that the Appellant is Kurdish and exited Iran illegally. However, as per headnote 3 and 4 of HB (Kurds), this alone would not create a risk to the Appellant on return, even considering the heightened level of scrutiny and the pinch point of return"

 

The Grounds of Appeal: Discussion and Findings

5.              The first ground of appeal was that the Tribunal had offered no reasoning for the finding that the Appellant's activity in the UK was opportunistic. Upon reflection Mr Winter sought to withdraw reliance on that ground, and we agreed that he should do so. The reasons given by the First-tier Tribunal for its finding were that the activity was minimal, no credible reason had been advanced for the Appellant's lack of participation in other Komala activities in the UK, and that he had been unable to articulate why he supported the group.

6.              Given his withdrawal of his first ground, Mr Winter also refined his third, which was that the First-tier Tribunal had failed to appreciate that the Appellant could not be expected to lie about his sur place activities upon return to Iran. Mr Winter accepted that in the absence of any protected right, this was not a situation analogous to that in HJ (Iran) [2010] UKSC 31. What the Appellant would in fact say when questioned was nevertheless a question the First-tier Tribunal failed to ask itself, and this brings us to the central grounds of Mr Winter's challenge.

7.              The principal grounds of appeal are that paragraph 77 (set out at our §4 above) simply does not do enough to engage with the relevant country guidance on risk on return to Iran. It fails to consider the fact that the Appellant, like all arrivals to Iran, will be questioned. It does not acknowledge that as a failed asylum seeker he will likely be asked about the basis of his claim. At that point the Appellant will have to calculate risk: should he deny involvement in anti-government activity here, or should he admit his attendance on protests etc on the basis that the Iranians may know about them anyway. He will in any event be unable to conceal his Kurdish identity, or the fact that he left Iran illegally. What the Tribunal was required to do was to conduct a careful assessment of all of these factors, in order to determine whether there was a reasonable likelihood that the Appellant would be transferred for further questioning, with the attendant risk of ill-treatment: SSH and HR (illegal exit: failed asylum seeker) Iran CG [2016] UKUT 308 (IAC) §23.

8.              In reply Mr Mullen accepted that in its very brief acknowledgement of these matters at its §77, the Tribunal did not conduct a complete risk assessment. There was a lacuna in its reasoning in that it failed to ask itself what the Appellant would likely say when asked about the basis of his claim, and then weigh that matter alongside his illegal exit, and importantly, his Kurdish identity.

9.              We agree, and find Mr Mullen's concession to be well made. It is true that the relevant country guidance indicates that neither attendance at a protest, nor illegal exit, nor Kurdish ethnicity will in themselves be matters likely to create a risk on return to Iran, but the focus for any decision maker in this arena is whether the combination of those factors would result in second line questioning: SSH (Iran). We cannot be satisfied that the First-tier Tribunal here undertook this holistic exercise.

10.          We therefore set the decision of the First-tier Tribunal aside to a limited extent. Its findings on the historical claim between §53 and §66 are preserved. Its findings, at §67, §74 and §75, that the Appellant does not in fact hold any protected political belief, are preserved. It is only the risk assessment at §77 that is set aside to be remade.

 

The Re-Made Decision

11.          The Appellant does not have a passport. In order for him to be removed to Iran he will need to be issued with a laissez passer by the Iranian embassy in London. The embassy itself will "carry out security checks concerning the kind of activities the particular person has been involved in while out of Iran": SSH §7. It will also be aware of the fact that he is a failed asylum seeker: SSH §6. Any information gleaned will be provided to the authorities in Iran ahead of his arrival. He will then be questioned on arrival : SSH §9. The evidence of the International Organisation for Migration (IOM) was that this questioning could take a few hours. Whilst the panel in SSH noted, at its §12, that the IOM were there concerned with voluntary returnees, there is no reason to believe that the scrutiny would be any less for an individual subject to forced return. Indeed, common sense would suggest that in those circumstances the scrutiny would be all the greater.

12.          One of two things will happen following that initial round of questioning. Either the Appellant will be allowed to go on his way, or he will be transferred for a second bout, during which the likelihood of ill-treatment rises to a sufficiently high level to trigger the UK's obligations under both the Refugee Convention and the European Convention on Human Rights. In his submissions Mr Mullen acknowledged, probably fairly in our view, that which it is rather depends "on who you get" at the immigration desk, and what that individual makes of the confluence of factors in any given case.

13.          In SSH the Tribunal - there concerned with the relevance of illegal exit - thought the litmus test to be whether "there are any particular concerns arising from their previous activities either in Iran or in the United Kingdom" (at §23). In HB the panel, this time particularly concerned with Kurdish returnees, endorsed that approach, whilst asking decision makers to bear in mind that Kurds are subject to an additional, "heightened scrutiny". The country guidance given in HB is that the authorities (and here we read that to mean the officer conducting that first round of questioning):

"...demonstrate what could be described as a 'hair-trigger' approach to those suspected of or perceived to be involved in Kurdish political activities or support for Kurdish rights. By 'hair-trigger' it means that the threshold for suspicion is low, and the reaction of the authorities is reasonably likely to be extreme".

14.          Applying that guidance to this case, we find ourselves inexorably drawn to the conclusion that this Appellant cannot safely be removed to Iran. He is a Kurd who left Iran illegally, and who has, for whatever reason, engaged in activity whilst in the UK that is openly critical of the Iranian regime. On arrival he is going to be questioned. Should he choose to conceal the fact that he has attended protests etc, and he is discovered to have done so, the consequences would in our view be immediately, and obviously, very serious. For that reason it would appear far more likely that he will tell the truth and hope for leniency. As Mr Mullen submits, he may well get it. Applying the combined guidance in SSH and HB however, there remains a reasonable likelihood that he will not. It follows that his appeal must be allowed.

 

Decisions

15.          The decision of the First-tier Tribunal is set aside to the extent identified above.

16.          There is an anonymity order in this protection appeal.

17.          We remake the decision in the appeal as follows: the appeal is allowed on protection grounds.

 

 

Upper Tribunal Judge Bruce

Immigration and Asylum Chamber

 

26 ^th March 2025