17 January 2011

FOURTH SECTION
Application no. 23584/10
by B.G.
against the United Kingdom
lodged on 27 April 2010

STATEMENT OF FACTS
THE FACTS
The applicant, B.G., is an Iranian national who was born in 1974 and lives in Clapham. She is represented before the Court by Gulbenkian Andonian, a firm of solicitors practising in London.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant arrived in the United Kingdom on 2 October 2006, accompanied by her then-partner, S. Both claimed asylum upon arrival and their claims were dealt with separately but by the same Home Office official. The basis of their claim was that they had been having an 
extra-marital affair in Iran and had been caught by S’s wife. The applicant claimed that her husband had reported her to the authorities and that her father had sworn to kill her for damaging the family’s honour. Their asylum claims were refused on 16 August 2007 and their appeals against the refusal of asylum were heard together by the Asylum and Immigration Tribunal on 5 October 2007.
The Immigration Judge, who dismissed the appeals on 29 October 2007, found that the appellants’ accounts contained a “high of degree implausibility” and that they did not fully corroborate each other. None of the core aspects of their claim were believed and it was not therefore accepted that the applicant faced a real risk of arrest or honour killing if returned to Iran.
Following the dismissal of her appeal, the applicant absconded. S is recorded as having returned voluntarily to Iran in 2008. The applicant was next encountered by the domestic authorities when she was arrested on 29 April 2009, having gone with her new partner, a citizen of the United States of America, to the American embassy to apply for a fiancé visa to enter the USA. She submitted an application for indefinite leave to remain in the United Kingdom on 16 May 2009, on the basis that she was the unmarried partner of a settled person. She also relied on Articles 3 and 8 of the Convention. This application was refused on 17 June 2009 and an application for judicial review of the decision was also refused on 27 October 2009.
The applicant made a further application for indefinite leave to remain in the United Kingdom on 2 November 2009, again relying on her relationship with a settled person. She also invoked Article 3 and included with the application photographs of her participating in protests outside the Iranian Embassy in London. The applicant then applied for judicial review and an injunction to prevent her removal until the Home Office had considered her application. An injunction was granted, however, the judicial review application was refused on 3 February 2010. It was noted that the Home Office had refused the application on 16 January 2010 and had dealt with it in accordance with the correct principles. The applicant’s claim was found to be totally without merit and its renewal to an oral hearing would not constitute a bar to her removal.
The applicant made further representations on 11, 24 and 15 March 2010, claiming that she had been actively involved in organising and participating in protests against the Iranian regime and had engaged in a hunger strike. She also claimed that she had been interviewed at a protest and that the interview had been broadcast in Iran, meaning that the Iranian authorities were aware of her activities. She submitted written confirmation from an Iranian umbrella organisation known as the National Council of Resistance of Iran that she was actively engaged in protest and had received wide media coverage as a result. She also submitted an expert report dated 8 January 2010 from IWKRO Women’s Rights Organisation, which stated that the applicant would be at risk of being imprisoned in inhumane conditions or executed for having committed adultery in Iran. Furthermore, the applicant also submitted medical evidence to the effect that she was suffering from chronic anxiety and depression for which she was receiving treatment.
Her representations were refused as not amounting to a fresh asylum claim on 16 April 2010. The Home Office reiterated the adverse credibility findings reached against the applicant at her appeal in 2007. It was also considered that there was no evidence, documentary or otherwise, to support the claim in the applicant’s expert report that she would face arrest, a death sentence or any other persecution upon return to Iran. Although the evidence of her political activities in the United Kingdom was noted, it was not believed that, simply because the applicant had appeared in a magazine article or on a website, she would have come to the notice of, or be of adverse interest to, the Iranian authorities upon return. As regards the applicant’s mental health problems, it was noted that these did not reach the high threshold of Article 3 and that there were some mental health facilities in Iran.
The applicant has submitted to the Court a letter dated 19 April 2010 from a company called Grain Media, which confirms that the applicant had been interviewed and filmed for an article and film on the subject of forced marriage. The article was to be published in the Sunday Telegraph’s magazine, the film was intended for a variety of television channels including Al-Jazeera English. In both, the applicant expressed negative views of the Iranian regime. She also submitted a second expert report, dated 28 April 2010, written by Emile Joffé, who concluded that the applicant would face a “bleak future” and possibly severe punishment for sexual transgression if returned to Iran as a single woman. It was also thought to be highly likely that her political activities in the United Kingdom would be known to the Iranian authorities and that the applicant would be at risk of detention, interrogation and torture upon return as a result. The applicant also risked arrest and imprisonment due to having exited Iran illegally. All of the risk factors regarding the applicant would be intensified by the current situation in Iran, namely the widespread repression of the population by the authorities since the elections. It was found to be “quite inconceivable” that the applicant could return to Iran safely.
B.  Relevant domestic and European law
1. Asylum and human rights claims
Sections 82(1) and 84 of the Nationality, Immigration and Asylum Act 2002 provide for a right of appeal against an immigration decision made by the Secretary of State for the Home Department, inter alia, on the grounds that the decision is incompatible with the Convention. Appeals in asylum, immigration and nationality matters were, at the relevant time, heard by the Asylum and Immigration Tribunal.
Section 2 of the Human Rights Act 1998 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must take into account any case-law from this Court so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen. Section 6(1) provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right.
2. Fresh asylum and human rights claims
Sections 1(4) and 3(2) of the Immigration Act 1971 provide for the making of Immigration Rules by the Secretary of State. Paragraph 353 of the Immigration Rules provides:
“353. When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:
(i) had not already been considered; and
(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.”
As regards the scrutiny of fresh asylum claims and the power of the courts to review such scrutiny, the Court of Appeal in WM (DRC) v SSHD [2006] EWCA Civ 1495 (paragraphs 10-11) has held:
“Accordingly, a court when reviewing a decision of the Secretary of State as to whether a fresh claim exists must address the following matters. First, has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return ... The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting-point for that enquiry; but it is only a starting point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind. Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both of those questions is in the affirmative it will have to grant an application for review of the Secretary of State’s decision.”
Thus, an applicant making fresh representations must establish that they have a realistic prospect of success to establish a “fresh claim” which, even if then refused by the Home Office, will nonetheless generate a fresh right of appeal to be considered on the merits.
3. Domestic case-law on sur place activities
On 10 April 2008, the Court of Appeal handed down its judgment in the case of SS (Iran) [2008] EWCA Civ 310, which concerned an Iranian asylum seeker who claimed that he would be at risk if returned to Iran because of his involvement in the United Kingdom with a Kurdish political party known as Komala.
In remitting the appeal to the Asylum and Immigration Tribunal to be heard before a different Immigration Judge, the Court of Appeal found:
“There must be a limit as to how far an applicant for asylum is entitled to rely on publicity about his activities in the UK against the government of the country to which he is liable to be returned. It seems to me that it is not enough for such an applicant simply to establish, as here, that he was involved in activities which were relatively limited in duration and importance, without producing any evidence that the authorities would be concerned about them, or even that they were or would be aware of them.”
However, in a case decided by the Court of Appeal at around the same time, YB (Eritrea) [2008] EWCA Civ 360, which was handed down on 15 April 2008, the Court of Appeal took a somewhat different view of the approach to be taken to sur place activities. This case involved an Eritrean asylum seeker who claimed to have been active in support of the oppositionist Eritrean Democratic Party whilst in the United Kingdom. The Court of Appeal again remitted the issues arising from activity sur place to be heard before a differently constituted Asylum and Immigration Tribunal, stating:
“... the Tribunal, while accepting that the appellant’s political activity in this country was genuine, were not prepared to accept in the absence of positive evidence that the Eritrean authorities had “the means and the inclination” to monitor such activities as a demonstration outside their embassy, or that they would be able to identify the appellant from photographs of the demonstration. In my judgment, and without disrespect to what is a specialist tribunal, this is a finding which risks losing contact with reality. Where, as here, the tribunal has objective evidence which ‘paints a bleak picture of the suppression of political opponents’ by a named government, it requires little or no evidence or speculation to arrive at a strong possibility, - and perhaps more – that its foreign legations not only film or photograph their nationals who demonstrate in public against the regime but have informers among expatriate oppositionist organisations who can name the people who are filmed or photographed. Similarly it does not require affirmative evidence to establish a probability that the intelligence services of such states monitor the internet for information about oppositionist groups. The real question in most cases will be what follows for the individual claimant. If, for example, any information reaching the embassy is likely to be that a claimant identified in a photograph is a hanger-on with no real commitment to the oppositionist cause, that will go directly to the issue flagged up by art 4(3)(d) of the Directive.”
4. Qualification Directive 2004/83/EC
The Directive referred to by the Court of Appeal in YB (Eritrea), cited above, provides at Article 4(3):
“The assessment of an application for international protection is to be carried out on an individual basis and includes taking into account:
... ... ...
(d) whether the applicant’s activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country.”
The Directive was transposed into domestic law by paragraph 339P of the Immigration Rules, which provides:
“339P. A person may have a well-founded fear of being persecuted or a real risk of suffering serious harm based on events which have taken place since the person left the country of origin or country of return and/or activities which have been engaged in by a person since he left the country of origin or country of return, in particular where it is established that the activities relied upon constitute the expression and continuation of convictions or orientations held in the country of origin or country of return.”

COMPLAINTS
The applicant complains that her removal to Iran would breach Articles 3 and 8 of the Convention.
QUESTION TO THE PARTIES
Would the applicant’s removal to Iran constitute a breach of Article 3, having regard to:
- her status as an unaccompanied, single or divorced woman;
- her sur place activities in the United Kingdom; and
- the heightened repression of political dissidents and human rights activists in Iran since the elections of June 2009?

The Government are asked to comment, in the context of the applicant’s alleged sur place activities, on the cases of SS (Iran) [2008] EWCA Civ 310 and YB (Eritrea) [2008] EWCA Civ 360.