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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI- 2022-004677
	First-tier Tribunal No: HU/17778/2018

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 14 February 2025

 

Before

 

UPPER TRIBUNAL JUDGE SMITH

DEPUTY UPPER TRIBUNAL JUDGE GRAVES

 

Between

 

R A

[BY HIS LITIGATION FRIEND, MS SIAN DAVIES]

(ANONYMITY ORDER MADE)

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

 

Respondent

Representation :

For the Appellant: Ms Z Harper, Counsel instructed by Wilson Solicitors LLP

For the Respondent: Ms Lecointe, Senior Home Office Presenting Officer

 

Heard at Field House on Monday 27 January 2025

 

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellant (RA) 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 the Appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

BACKGROUND

1.       By a decision promulgated on 25 June 2024, the Tribunal (myself sitting with Deputy Upper Tribunal Judge Grimes) found an error of law in the decision of the First-tier Tribunal (Judges Bird and Beach) dismissing the Appellant's appeal on protection and Article 2 human rights grounds but allowing it on Articles 3 and 8 ECHR grounds. The appeal to this Tribunal was the Respondent's appeal against the First-tier Tribunal's allowing of the Appellant's appeal. There was no cross appeal by the Appellant. The Tribunal's error of law decision is appended hereto for ease of reference.

2.       As a result of the error of law decision, the Tribunal set aside the First-tier Tribunal's decision but only a small part thereof. The Tribunal expressly preserved the findings made up to and including [§121] of the First-tier Tribunal's decision and the dismissal of the appeal on protection and Article 2 grounds. We set aside [§122] to [§130] of the First-tier Tribunal's decision and the allowing of the appeal on Article 3 and 8 ECHR grounds but expressly preserved the finding that the Appellant has lost his passport and the findings about what would occur if the Appellant were questioned by the Iranian authorities at the airport on return ([§31] and [§32] of the error of law decision - [B/89]). We deal with those findings in more detail below.

3.       Following directions given in the error of law decision, and an extension of time granted by an Upper Tribunal Legal Officer, the Appellant filed a skeleton argument dated 4 November 2024 and further evidence in the form of a bundle of 34 pages. Following concerns from the Appellant's solicitor that the Respondent had not complied with the direction to file a skeleton argument, Judge Smith directed that this be filed by 4pm on Monday 13 January 2025. That was filed as dated on 10 January 2025.

4.       We have taken into account the evidence before the First-tier Tribunal so far as it concerns the issue of which we are seized. We refer to that as [B/xx]. We have also considered the evidence in the Appellant's further evidence bundle to which we refer below as [ASB/xx]. We have also taken into account the content of both skeleton arguments and the oral submissions made by Ms Harper and Ms Lecointe.

5.       There was no oral evidence from the Appellant. As a result of his mental illness, it is accepted that he is not able to give oral evidence. He lacks capacity to provide instruction in this appeal as a result of which he is now represented by a litigation friend. It was originally intended that he would nevertheless attend the hearing remotely, but he did not do so, and it was agreed that we should proceed in his absence.

ISSUES AND PRESERVED FINDINGS

6.       The First-tier Tribunal's decision appears at [B/100-130]. The findings of the First-tier Tribunal which are preserved are as follows:

(1)    Whilst the Appellant may have become interested in politics before he left Iran in 2009 and may well have attended demonstrations against the regime at that time, he did not come to the interest of the authorities as a result and was not detained ([§83] of the First-tier Tribunal's decision). He is therefore not at real risk of persecution/serious harm as a result of his political opinion (actual or perceived) if returned to Iran ([§83] and [§100] of the First-tier Tribunal's decision).

(2)    There may be societal discrimination against those who, like the Appellant, suffer from mental illness but that discrimination is not such that those with mental illness can be considered to form a particular social group ([§90] of the First-tier Tribunal's decision).

(3)    The Appellant would not be at risk of persecution/serious harm as a result of his mental illness leading to drug and alcohol use and the transgressing of social norms in Iran. The evidence is that the Appellant's mental health deterioration has been caused by his drug and alcohol use not vice versa ([§91] of the First-tier Tribunal's decision).

(4)    The Appellant is excluded from the provisions in relation to humanitarian protection on account of his offending ([§102] to [§109] of the First-tier Tribunal's decision).

(5)    If the Appellant does not engage with treatment for his mental health, this will cause a deterioration but does not automatically mean that he will commit offences. The presence of a support structure in Iran (in the form of his father and sister who remain in Iran and his brother living in Germany who could visit him in Iran) will be likely to increase the likelihood of the Appellant seeking to access treatment ([§92] to [§94] of the First-tier Tribunal's decision).

(6)    Treatment for the Appellant's mental illness is available and accessible in Iran ([§95] to [§99] of the First-tier Tribunal's decision).

(7)    There is no breach of Article 3 ECHR on health grounds ([§110] to [§117] of the First-tier Tribunal's decision).

(8)    The Appellant is not at real risk of destitution on return to Iran. Article 3 ECHR is not breached on that account ([§118] to [§120] of the First-tier Tribunal's decision).

(9)    The Appellant is not at real risk of Article 3 ill-treatment on return to Iran as a result of his drug and alcohol abuse. He would be able to access treatment for this on return ([§121] of the First-tier Tribunal decision).

7.       At [§122] onwards of the First-tier Tribunal's decision reference was made to guidance given by this Tribunal in SSH and HR (illegal exit: failed asylum seeker) Iran CG [2016] UKUT 308 (IAC) (" SSH").

8.       The guidance given by this Tribunal in SSH is as follows:

 

"(a) An Iranian male whom it is sought to return to Iran, who does not possess a passport, will be returnable on a laissez passer, which he can obtain from the Iranian Embassy on proof of identity and nationality.

 

(b) An Iranian male in respect of whom no adverse interest has previously been manifested by the Iranian State does not face a real risk of persecution/breach of his Article 3 rights on return to Iran on account of having left Iran illegally and/or being a failed asylum seeker. No such risk exists at the time of questioning on return to Iran nor after the facts (i.e. of illegal exit and being a failed asylum seeker) have been established. In particular, there is not a real risk of prosecution leading to imprisonment."

9.       As the First-tier Tribunal rightly noted, that guidance does not deal with the position for someone who has an Iranian passport. The First-tier Tribunal made the following findings concerning the whereabouts of the Appellant's passport:

 

"124 ...The appellant's brother obtained an Iranian passport for the appellant in 2019 and there is no evidence that this passport would not still be valid. However, the evidence of the brother is that the whereabouts of this passport are now unknown. Given the chaotic nature of the appellant's lifestyle, we find that it is reasonably likely that if the passport was given to the appellant (as stated in the brother's evidence), it has since been lost. The appellant has been homeless on a number of occasions, he has lived in different accommodation, has been sectioned for a period of time since 2019 (when the passport was issued) and has been living and begging on the street. We find that there is a real likelihood that the appellant will have misplaced the passport...."

10.   We preserved the finding that the Appellant had lost his passport but not the subsequent finding that he would therefore necessarily be returned on a laissez-passer because the First-tier Tribunal had failed to consider whether the Appellant would be able to obtain a passport prior to return.

11.   The First-tier Tribunal, having made reference to [§23] of this Tribunal's decision in SSH concerning what would occur if an individual were returned to Iran from the UK (in essence questioning), went on to make the following findings about the likely outcome were the Appellant to be returned and face that questioning:

"126. The potential distinction for this appellant from other returnees with no ethnic or political characteristic which could result in further questioning by the authorities, is his mental health and the likelihood of how he would react to questioning. The nature of the appellant's illness means that he has a particular distrust of authorities. Dr Sen's report dated 11 ^th December 2020 states that he has concerns about the appellant's attitude towards the authorities when he is questioned on return to Iran. He states:

' If [RA] is questioned by authorities in Iran, such as the police, army officials, airport authorities, [RA]'s experience towards any authority figure is likely to be hostile, based on his history so far, whether in the UK or in Iran. He has displayed similar attitudes towards the authorities in Iran.'

127. We find, taking account of the history of the appellant's illness as set out in the medical evidence before us, that the appellant will be at risk of reacting in a hostile manner to any questioning by the authorities on return. The case law confirms that questioning is a routine part of the returns process. We find that whilst, for many returnees, this will not lead to any risk, the appellant's position is different as a result of his diagnosis of paranoid schizophrenia, his attitude towards authorities and his likely reaction to being challenged by those authorities.

128. Dr Kashefi has considered the likely effect of this hostility in her report. Her first comment relates to the likelihood of the appellant's behaviour increasing his risk of arrest and detention. We find that this is a reasonably likely outcome given that his behaviour will be hostile towards the authorities who will be likely to view to such behaviour with suspicion. Such arrest and detention is likely to exacerbate the appellant's hostile reaction and we find that there is a real likelihood that this would lead to a real possibility of ill-treatment in detention."

12.   Although we have set aside those findings, we expressly preserved the finding that, if the Appellant were to be questioned at the airport on return, he would react in a hostile manner and there would then be a real risk of arrest, detention and ill-treatment in detention. That finding is based on the addendum report of Dr Sen at [B/203-235] (see in particular [§6.10]). There is no evidence to counter Dr Sen's report which was accepted by the First-tier Tribunal at [§126] ([B/128-129]).

13.   As Ms Harper therefore identified, there are potentially three issues which remain:

(1)    Whether there is a real risk that an Iranian returning to Iran on an Iranian passport would face questioning at the airport.

(2)    Whether the issue raised by the Respondent as to the Appellant's ability to obtain a passport is legally relevant to this appeal.

(3)    Whether it would be feasible for the Appellant to obtain a passport from the UK prior to return in any event.

14.   We consider it more appropriate to consider issues (1) and (3) before considering (2) since, if we find either that the Appellant would remain at risk if he returned on an Iranian passport or that the Appellant cannot in fact obtain a passport from within the UK, we do not need to consider the second issue at all. We also consider it appropriate to consider the third issue first since, if the Appellant is unable to replace his lost passport, he would be returned on a laissez-passer and would therefore be questioned at the airport (applying the guidance in SSH).

EVIDENCE AND FINDINGS

Addendum Country Expert Report of Ms Roya Kashefi

15.   Ms Kashefi's addendum report appears at [ASB/2-30]. It is dated 4 October 2024. She is the head of the Human Rights Committee and works as a senior researcher for the Association des Chercheurs Iraniens, "an international non-profit organisation dedicated to the unbiased and objective study of Iranian issues". She has studied Iran since 1989 and has acted as an expert witness on Iranian issues in the UK and abroad. We as the First-tier Tribunal accept her expertise to provide an opinion on the issues in this appeal ([§78] of the First-tier Tribunal's decision at [B/116]). Although the Respondent's skeleton argument describes some of the report as "speculative", Ms Lecointe did not seriously challenge the report or suggest that we should give it little or no weight.

16.   In relation to the third issue which we have to decide, Ms Kashefi relies on information published on the consular affairs section of the website of the Embassy of the Islamic Republic of Iran and the UK.

17.   Based on that information, at [§1.1 - 1.12] ([ASB/5-7]), she says that, in order to replace his passport, the Appellant would have to provide his birth certificate and national ID card. As we understand the evidence, the national ID card is what is known as a "kart-e melli". Ms Kashefi says that this is now a biometric card but that old style cards have not always been updated. She says though that the London Consulate is not able to issue biometric cards. The nearest place which can do so is the Consulate in Germany. She also says that the number of the ID card would be sufficient provided the applicant could also provide his birth certificate (or conscription card - the Appellant does not have this as, according to his brother, he was exempted: see footnote [8] of Ms Kashefi's report at [ASB/8]).

18.   Ms Kashefi also says that the necessary identity documents could be produced by family members in Iran. They would be authenticated there, and the Ministry of Foreign Affairs would then authorise the Consulate in the UK to provide a replacement passport.

19.   However, in order to use the consular services, the Appellant would have to register on the portal of the London Consulate. The process involved is described at [§1.13-1.19] ([ASB/7-8]). The Appellant would be required to provide his UK address, contact details, visa or residency status, national identity number and information about when he left Iran. He would also have to agree to an in-person consultation to complete the application. He would be questioned about his time in the UK and visa status. Pursuant to the principles established in HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31, the Appellant could not be expected to lie and would therefore be bound to inform the authorities that he had claimed asylum in the UK, albeit that his claim had failed.

20.   Although the foregoing might suggest that the Appellant would, following this process, avoid further questioning on arrival in Iran, Ms Kashefi explains at [§1.17], that "security matters are typically addressed upon the individual's arrival in Iran and interaction with border agents" and that "the potential for further interviews or detention upon arrival rests solely with the security and intelligence agencies at the airport". That evidence is consistent with what is said in SSH (see in particular [§8] of the decision).

21.   Ms Kashefi also says that the Appellant could obtain a replacement birth certificate from within the UK if his family has a record of his national ID number. However, this takes between six and nine months. The application completed in the same way as above within the UK could be dealt with by information provided by the Appellant's father.

22.   In terms of risk arising from this process, the main one identified by Ms Kashefi at [§3] of the report ([ASB/9]) arises from questions following the in-person interview. Otherwise, the problems she identifies (in relation to the Appellant's father's health and the Appellant's own incapacity) might be capable of resolution by assistance from his brother acting as his proxy (as was done before) and his representatives in the UK.

23.   Ms Kashefi next addresses the likelihood of questioning on arrival in Iran returning on a laissez-passer. We do not need to deal with this section of the report as the procedure is covered by the decision in SSH and the findings we have preserved from the First-tier Tribunal's decision.

24.   At [§5] of her report ([ASB/10-11]), Ms Kashefi deals with the procedure at the airport for those returning on a full, newly issued Iranian passport. Although she accepts that it is permissible for those who left Iran legally to obtain a replacement passport in their country of residence, she says that "[i]n recent months, several individuals and families have reported to us as being detained at Imam Khomeini airport in Tehran for extended periods to assess the reasons behind their asylum claims in foreign countries and the type of information shared with foreign authorities". She says that such persons are identified via a code placed in their new passports. She also says that passports have been confiscated for several months pending "multiple interrogation sessions". Perhaps understandably, she provides no details of the identity of such persons. There is no indication of the numbers of persons concerned in the context of overall returns. She says that she has not received any response from the Consulate to enquiries made about these persons.

25.   In terms of the risks to the Appellant arising from questioning at the airport following return under either a laissez-passer or passport, Ms Kashefi relies on her earlier report ([B/166-202]). As above, we do not need to deal with this section of the report in light of the findings made by the First-tier Tribunal about what would occur if the Appellant were questioned at the airport on arrival.

Landinfo report dated 5 January 2021 entitled "Iran: Passports, ID and civil status documents"

26.   Although not produced in evidence by the Respondent, she relies at footnote [1] of her skeleton argument ([§12]) on this report as confirming Ms Kashefi's evidence that the Iranian authorities are likely to ask when issuing replacement passports about whether an applicant has obtained a residence permit based on an asylum claim (relying on [§4.4.5] of that report).

27.   Ms Harper very helpfully provided us with a copy of the full report which was, in consequence, the subject of some discussion at the hearing. We therefore deal with what that says about the process of obtaining passports from outside Iran.

28.   We recognise of course that this report is less recent than Ms Kashefi's evidence and that it relates specifically to the situation for Iranians in Norway/ Denmark and not the UK. It is however based on information obtained by the authors of the report from other countries and offers what is perhaps a more complete picture of the process for obtaining replacement documents.

29.   It appears from sections [2] and [3] of the report that there are two documents issued by the Iranian authorities. The first is a "shenasnameh". The report indicates at [§2.8.4] that "it is difficult to determine with certainty exactly which documentation requirements apply" where a shenasnameh has been lost. It appears that it can be obtained by an in-person application or by proxy in Iran. We do not understand however that this is the document which Ms Kashefi says that the Appellant would need in order to obtain a replacement passport.

30.   Instead, the document which Ms Kashefi says that the Appellant would need is a "kart-e melli" which is dealt with at section [3] of the report. This confirms that the card is now a biometric one. Although the authors of the report admit that they do not have any specific information about the documentation requirements and procedures to obtain a replacement kart-e melli, the report indicates that at least in Norway, the Iranian Embassy no longer issues the card to Iranians in that country. It is not possible to have the card issued by proxy in Iran due to the requirement for fingerprints.

31.   The report deals at section [4] with passports. According to [§4.2] of the report, in order to obtain a passport (in Denmark), Iranian citizens have to submit an application with photographs, his or her shenasnameh and kart-e melli.

32.   The report at [§4.4.1] confirms that replacement passports can be obtained outside Iran and corroborates Ms Kashefi's evidence about the need for an in-person application and the need to provide a national ID card (the kart-e melli). This report goes further and suggests that an applicant has to provide original of the shenasnameh as well as a copy of the kart-e melli. A footnote indicates that the requirement for a kart-e melli can be dispensed with if the applicant can produce the shenasnameh.

33.   The report also indicates that the application form includes a "field for a statement of regret". This is dealt with in more detail at [§4.4.5] in the following terms:

 

"Applicants whose residence permit is based on asylum must also submit a written statement explaining how they departed Iran, how they were granted asylum, and what their current situation/ status is. ...In the general application form, there is also a field where people who have applied for asylum, are required to give an apology. The person in question must tick off the following statement ...

'The undersigned: ... while regretting having applied for asylum in my country of residence, requests to receive consular services from the Representation of the Islamic Republic of Iran.'"

Other Evidence

34.   The Appellant also relies in evidence on e-mails from Mark Walton, Unit Manager, Beech Sheffield Health and Social Care dated 18 September 2024 ([ASB/31-32]) and Nada Mortin, director of Earl Marshall Guest House dated 5 October 2024 ([ASB/33-34]).

35.   Mr Walton provides evidence that, at the time of the Appellant's admission as an in-patient between 19 November 2019 and 10 February 2020, the Appellant had a passport and birth certificate. He confirms that those were returned to him when he left the hospital. However, when the Appellant was readmitted to hospital on 22 November 2020 and then transferred to Sheffield between 8 and 11 January 2021, there is no record of him having any documents. He says that the Appellant was in temporary accommodation between the two admissions and that he asked the hospital to ask the guest house where he was staying about his passport. They told the hospital that the Appellant had reported losing it "a while ago". That is confirmed by Nada Mortin who says that the Appellant told her that he had lost all his documents when sleeping rough on the streets.

DISCUSSION AND CONCLUSION

36.   We have preserved the finding that the Appellant has no identity documents. As such, he does not have his birth certificate or national ID card. Although Ms Lecointe sought to undermine the finding in this regard, based on the other evidence put forward by the Appellant (as above - at [ASB/31-34]), we accept that the Appellant has no documents and continue to uphold the earlier finding in that regard.

37.   It appears from the Landinfo report that, as a biometric document, the national ID card (or kart-e melli) cannot now be issued outside Iran or by proxy from within Iran. However, it also appears from Ms Kashefi's evidence that it may be sufficient for the number of the previous national ID card to be given provided other documentation in the form of a birth certificate is provided. We are unclear whether this is the same or a different document from a shenasnameh. We accept the Respondent's position however that there would be no reason why the Appellant's family members in Iran or his brother who is able to visit Iran could not obtain this document. Provided the number of the Appellant's previous ID card could be obtained, therefore, we accept it is feasible for the Appellant to obtain sufficient documents in order to make an application for a replacement passport from within the UK.

38.   We therefore move on to the first issue about the risk which arises from return on a passport rather than a laissez-passer.

39.   We do not accept the Respondent's position at [§6] of her skeleton argument that Ms Kashefi's evidence about the interest of the Iranian authorities in an applicant who has claimed asylum abroad is speculative. That the Iranian authorities take interest in the circumstances of those applying for replacement passports is evident from what is said in the Landinfo report about the "statement of regret" in the application form. That corroborates Ms Kashefi's evidence that the Appellant would be asked about his visa status and whether he had claimed asylum in the UK.

40.   We do not consider it a quantum leap to move from that to Ms Kashefi's evidence that those returning on a newly issued passport would be known to the Iranian authorities at the airport as being failed asylum seekers. Whether that is known about by a code placed in the passport or simply information passed from the consular authorities to the border and security agencies matters not.

41.   Nor do we accept that the Landinfo report at [§4.4.5] supports the gloss which the Respondent seeks to put on it at [§12] of the skeleton argument. That an applicant's residence "is based on asylum" does not necessarily mean that such a person has been recognised as a refugee. It may be that an applicant had an asylum claim which was abandoned or obtained a temporary status while seeking asylum. Even if that part of the report did support the Respondent's interpretation, we can see no sensible reason why the Iranian authorities should be less suspicious of those whose asylum claims have failed than of those whose asylum claims have succeeded. That much is clear from the guidance given in SSH finding that those returned on laissez-passer (most likely failed asylum seekers) are subject to questioning at the airport.

42.   Whilst we accept that the evidence of Ms Kashefi about those returning with new passports who have been questioned at the airport and subject to further interest is unsourced in terms of identities and numbers, we have no reason to doubt her evidence as set out at [§5.2] of her report ([ASB/10]). It is uncontroverted by any evidence produced by the Respondent and supported in part by what is said in the Landinfo report about the interest shown by the Iranian authorities in those who have claimed asylum. It also bears out the guidance in SSH.

43.   It follows from the guidance given in SSH that the Iranian authorities would subject to questioning a person returning on a passport who is identified as a failed asylum seeker in the same way as they would a failed asylum seeker returning on a laissez-passer. The evidence shows that the Iranian authorities at the airport would be on notice that the person with a newly issued Iranian passport had claimed asylum in the UK. They would therefore, for the reasons given in SSH subject that person to questioning.

44.   In the situation of most Iranian failed asylum-seekers, the process of questioning at the airport would not give rise to a real risk of ill-treatment (following the guidance in SSH). In the case of this Appellant, however, and based on the expert medical evidence and the finding made by the First-tier Tribunal which we have preserved, the Appellant would, on arrival at the airport in Iran face a real risk of ill-treatment arising from his reaction to the questioning which he would face.

45.   For that reason, the appeal succeeds on Article 3 grounds. We do not need to deal with Article 8.

46.   We also do not need to deal with the second issue posited by Ms Harper. A decision on that issue should await a case in which it is material to the appeal.

 

NOTICE OF DECISION

The Appellant's appeal is allowed on human rights grounds (Article 3 ECHR) arising from the real risk of ill-treatment on return to Iran.

The Appellant's appeal was dismissed on protection, Article 2 and Article 3 ECHR medical grounds by the First-tier Tribunal. Its findings on those grounds were preserved.

L K Smith

Upper Tribunal Judge Smith

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

5 February 2025

APPENDIX: ERROR OF LAW DECISION

 

A black and white emblem with lions and unicorns Description automatically generated

 

IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2022-004677
	First-tier Tribunal No: HU/17778/2018

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

..................25/06/24.....................

 

Before

UPPER TRIBUNAL JUDGE SMITH

DEPUTY UPPER TRIBUNAL JUDGE GRIMES

 

Between

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

 

R A

[by his litigation friend, Ms Sian Davies]

[ANONYMITY DIRECTION MADE]

Respondent

Representation :

For the Appellant: Mr T Lindsay, Senior Home Office Presenting Officer

For the Respondent: Ms Z Harper, Counsel instructed by Wilsons Solicitors

 

Heard at Field House on Wednesday 12 June 2024

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Respondent (R A) is granted anonymity. No-one shall publish or reveal any information, including the name or address of the Respondent, likely to lead members of the public to identify the Respondent. Failure to comply with this order could amount to a contempt of court .

 

DECISION AND DIRECTIONS

BACKGROUND

1.       This is an appeal brought by the Secretary of State. For ease of reference, we refer to the parties as they were before the First-tier Tribunal. The Respondent appeals against the decision of the First-tier Tribunal (First-tier Tribunal Judges Bird and Beach) promulgated on 3 August 2022 ("the Decision") dismissing the Appellant's appeal on protection and Article 2 human rights grounds but allowing it on Articles 3 and 8 ECHR grounds.

2.       The Respondent's decision originally under appeal was one dated 30 January 2018 refusing a human rights claim. However, in the course of the appeal, the Appellant raised a protection claim which was refused by a supplementary decision letter dated 26 March 2021 ("the Supplementary Decision"). The Respondent consented to the Tribunal considering that protection claim.

3.       This appeal is the Appellant's second appeal, his first appeal against the refusal of an asylum claim having been dismissed by determination promulgated on 5 March 2010. Permission to challenge that decision was refused by the Upper Tribunal on 15 April 2010.

4.       The Appellant's claims and refusals of them are made in the context of a decision refusing to revoke a deportation order against the Appellant and seeking to deport him to his home country, Iran. The Appellant has been convicted of a number of offences. The most recent conviction, according to the Decision, was on 1 November 2017. The most serious offences of which the Appellant has been convicted are sexual offences for which the Appellant was sentenced on 29 July 2014 to a two years' hospital order. It is common ground that the Appellant suffers from mental health problems.

5.       The Appellant claims to be at risk on return to Iran due to his political opinions and mental health issues. He also claims that deportation would breach Article 3 ECHR on account of his mental health problems. He also claims that deportation would breach Article 8 ECHR.

6.       In what was acknowledged by both representatives to be a lengthy and generally very carefully crafted decision, the Tribunal dismissed the protection claim, adopting the findings of the previous Tribunal from 2010. The Appellant sought to disturb those earlier findings on the basis that they were unsafe due to his mental health which may have affected the credibility findings about his account. He did not give evidence before the Tribunal on this occasion due to his mental health condition. The Appellant has since been given permission to have a litigation friend appointed to assist him in this appeal. There is no dispute that the Appellant is mentally ill.

7.       The Appellant's brother, [AA], is resident in Germany. Although he provided witness statements, he was not able to give oral evidence as no consent to do so could be obtained from the German authorities. He was cross-examined by way of written questions and answers.

8.       Although the Tribunal accepted the written evidence of the Appellant's medical expert, Dr Sen, it was not satisfied that this could show that the Appellant's evidence in 2010 was impacted by his mental health condition at that time. It took into account AA's evidence but found that there were inconsistencies between that and the Appellant's account. Taking into account also the evidence of the Appellant's country expert, Dr Kashefi, it found that the Appellant may have attended demonstrations in Iran but did not accept that he had been detained and mistreated as claimed. It found that the Appellant would not be at real risk of persecution on account of his political opinion. Those findings and that conclusion are not challenged by the Appellant.

9.       The Tribunal was also not satisfied that the Appellant could be said to be a member of a particular social group on account of his mental health. It did not accept that "those with mental illness are considered a cognisable group by society in Iran" ([90] of the Decision). The evidence did not show that the Appellant's mental health condition would lead to adverse societal reaction. It therefore rejected the claim that he is a member of a particular social group. Those findings and that conclusion are not challenged by the Appellant.

10.   The Appellant also claimed that he would be at risk of persecution and/or serious harm as a result of his mental health. The Tribunal accepted that the Appellant's offending was "rooted, to some extent, in his mental illness" ([92]) and that if he did not engage with treatment, this would lead to his mental health deteriorating but did not necessarily mean that he would offend. Further, the Appellant has a father and sister in Iran whereas he has no support structure in the UK (he is dependent on outreach workers and healthcare workers). The support available in Iran would, the Tribunal found, "be likely to increase the likelihood of the appellant seeking to access treatment" ([94]). Having regard to the evidence of Dr Sen and Dr Kashefi, the Tribunal concluded that treatment in Iran would be available and accessible to the Appellant ([99]). It rejected the Appellant's claim that he would be at risk on account of his mental health condition. It also concluded at [117] of the Decision that the threshold in Article 3 ECHR was not met on account of the Appellant's mental health condition. Those findings are not challenged by the Appellant.

11.   When considering humanitarian protection, the Tribunal was also obliged to assess whether the Appellant was in any event excluded by paragraph 339D of the Immigration Rules on the basis that he had committed a serious crime. The Tribunal concluded at [109] of the Decision that the Appellant was excluded. Those findings are not challenged by the Appellant.

12.   The Tribunal considered whether the Appellant would face destitution in Iran but found at [120] of the Decision that the risk of this occurring in Iran was less than in the UK where he has no family support. It also concluded that the Appellant's drug use and abuse of alcohol could be treated in Iran and, again, due to family support there he would access this help ([121]). There was therefore no Article 3 risk on this account. The Appellant does not challenge those findings.

13.   However, for the reasons set out at [122] to [129] of the Decision, the Tribunal found that the Appellant would be at risk on return due to the manner in which he would be returned. The Tribunal found that the Appellant would be returned on a laissez-passer which would lead to him being questioned at the airport which in turn would lead to a risk of detention and ill-treatment due to the Appellant's mental health problems coupled with his distrust of authorities. The Tribunal allowed the appeal on this basis and also found that the Appellant's Article 8 rights would be breached for the same reasons.

14.   The Respondent challenges those findings and the conclusion, broadly on the basis that the Tribunal failed to consider that the Appellant has at one time held a valid passport issued by the Iranian authorities in the UK. Although he says that he has lost it, the Respondent says that the Tribunal failed to consider whether the Appellant would be able to obtain a replacement. The Respondent's grounds are directed at a failure to take into account a relevant consideration and/or a failure to give adequate reasons. The way in which the Respondent's challenge was put forward by Mr Lindsay is also founded on fairness since he says that this issue was not raised and therefore the Respondent had no opportunity to make submissions about it.

15.   Permission was granted by First-tier Tribunal Judge Karbani on 23 September 2022 in the following terms so far as relevant:

 

"..2. The grounds aver that the Judges materially erred in law in failing to provide adequate reasons, by allowing the appeal on the basis that the appellant would be returned on a laissez-passer rather than a passport, which would result in him being questioned by the authorities and in doing so have failed to take into account that there is no explanation as to why a replacement cannot be obtained now, as one was obtained in 2019.

3. The Judges have not considered the possibility of the appellant obtaining a replacement passport. The decision is based on the appellant returning on a laissez-passer, as a material fact affecting the treatment he will face on return. This finding is likely to have infected the findings on risk on return under Articles 3 and 8 and therefore the grounds disclose a material arguable error of law.

4. Permission to appeal is granted."

16.   The matter comes before us to decide whether the Decision contains an error of law. If we conclude that it does, we must then decide whether to set it aside in consequence, either in whole or in part. If we do so, we must then either remit the appeal to the First-tier Tribunal or re-make the decision in this Tribunal.

17.   We had before us a bundle running to 527 pages (pdf) including the core documents for the appeal, as well as the Appellant's bundles before the First-tier Tribunal. Ms Harper indicated that we also needed additional documents namely the Supplementary RFRL. Mr Lindsay provided us with that. Ms Harper also provided us with a copy of the written answers provided by the Appellant's brother in cross-examination (dated 12 May 2022) ("AA's answers") and the Appellant's skeleton argument for the First-tier Tribunal hearing ("the Skeleton Argument"). The Appellant has not filed a Rule 24 reply.

18.   Having heard submissions from Mr Lindsay and Ms Harper, we indicated that we would reserve our decision and provide that in writing which we now turn to do.

DISCUSSION

19.   The relevant part of the Decision reads as follows:

 

" Article 3 - risk on return

122. We next consider whether the appellant will be at risk on the point of return to Iran. The respondent states that measures will be put in place to ensure that any risk of self-harm or suicide is minimised. The form that those measurements will take was not set out in any detail although we note, of course, that they would have to be tailored to the individual needs at the time of return. However, this is a separate issue to the issue of return per se.

123. The decision in SSH and HR (illegal exit: failed asylum seeker) Iran CG [2016] UKUT 308 (IAC) confirmed that there was no risk on return simply as a result of leaving Iran illegally or because the appellant is a failed asylum seeker. The later Country Guidance cases relate to those of Kurdish ethnicity and/or those who have undertaken anti-government or perceived anti-government activities in the UK or via social media. There is no suggestion that the appellant has undertaken political activities in the UK or that he has a social media account that could be considered to be critical of the Iranian government.

124. SSH and HR recognised that those with a laissez-passer would be questioned by the Iranian authorities on return. It did not consider whether overstayers or failed asylum seekers who returned on a full Iranian passport would be questioned. The appellant's brother obtained an Iranian passport for the appellant in 2019 and there was no evidence that this passport would not still be valid. However, the evidence of the brother is that the whereabouts of this passport are now unknown. Given the chaotic nature of the appellant's lifestyle, we find that it is reasonably likely that if the passport was given to the appellant (as stated in the brother's evidence), it has since been lost. The appellant has been homeless on a number of occasions, he has lived in different accommodation, has been sectioned for a period of time since 2019 (when the passport was issued) and has been living and begging on the street. We find that there is a real likelihood that the appellant will have misplaced the passport. This would mean that he would be returned on a laissez-passer rather than on a full passport.

125. SSH and HR considers the risk as a result of questioning at the airport and finds:

'23. .....The evidence in our view shows no more than that they will be questioned and that if there are any particular concerns arising from their previous activities either in Iran or in the United Kingdom or whichever country they are returned from, then there would be a risk of further questioning, detention and potential ill-treatment. In this regard it is relevant to return to Dr Kakhki's evidence in re-examination where he said that the

treatment they would receive would depend on their individual case. If they co-operated and accepted that they left illegally and claimed asylum abroad then there would be no reason for ill-treatment, and questioning would be for a fairly brief period. That seems to us to sum up the position well, and as a consequence we conclude that a person with no history other than that of being a failed asylum seeker who had exited illegally and who could be expected to tell the truth when questioned would not face a real risk of ill-treatment during the period of questioning at the airport.'

126. The potential distinction for this appellant from other returnees with no ethnic or political characteristic which could result in further questioning by the authorities, is his mental health and the likelihood of how he would react to questioning. The nature of the appellant's illness means that he has a particular distrust of authorities. Dr Sen's report dated 11th December 2020 states that he has concerns about the appellant's attitude towards the authorities when he is questioned on return to Iran. He states:

'If Mr Amiri is questioned by authorities in Iran, such as the police, army officials, airport authorities, Mr Amiri's experience towards any authority figure is likely to be hostile, based on his history so far, whether in the UK or in Iran. He has displayed similar attitudes towards the authorities in Iran'

127. We find, taking account of the history of the appellant's illness as set out in the medical evidence before us, that the appellant will be at risk of reacting in a hostile manner to any questioning by the authorities on return. The case law confirms that questioning is a routine part of the returns process. We find that whilst, for many returnees, this will not lead to any risk, the appellant's position is different as a result of his diagnosis of paranoid schizophrenia, his attitude towards authorities and his likely reaction to being challenged by those authorities.

128. Dr Kashefi has considered the likely effect of this hostility in her report. Her first comment relates to the likelihood of the appellant's behaviour increasing his risk of arrest and detention. We find that this is a reasonably likely outcome given that his behaviour will be hostile towards the authorities who will be likely to view such behaviour with suspicion. Such arrest and detention is likely to exacerbate the appellant's hostile reaction and we find that there is a real likelihood that this would lead to a real possibility of ill-treatment in detention.

129. There is the potential for the duty Judge at the airport to recognise that the appellant is suffering from a mental illness and for an expert assessment then to be requested. However, whilst this assessment is carried out, the appellant will be detained. The background evidence sets out the conditions in detention centres. The US State Department report states that prison and detention centre conditions were harsh and life threatening and there were reports of guards beating political and non political prisoners and of prison authorities refusing to provide medication for pre-existing conditions. We find that there is a real likelihood that the appellant would be detained in conditions that breach Article 3 of the ECHR.

Article 8 - very compelling circumstances

130. It is accepted that the appellant cannot meet the exceptions in Section 117C(4)and (5). He does not have a partner in the UK. He does not have any children in the UK. He has not lived lawfully in the UK for most of his life. The appellant must, therefore, show that there are very compelling circumstances over and above the exceptions. The public interest in deporting foreign national offenders carries great weight and must be given significant weight in any Article 8 assessment. However, we have found that the appellant faces a real risk of treatment in breach of Article 3 on his return to Iran. We find, for the same reasons as given above with regard to Article 3 - risk of return, that the appellant has shown that there are very compelling circumstances over and

above the exceptions set out in Section 117C. We further find that the respondent has not, therefore, shown that the decision is a proportionate decision."

20.   We can say at once that we do not accept Mr Lindsay's submission that it was not open to the Tribunal to find that the Appellant has lost the passport which he obtained whilst in the UK. The finding to that effect at [124] of the Decision is adequately reasoned. There is no error in that finding of fact.

21.   However, it is necessary to look at how that passport was obtained and whether the Tribunal ought to have considered whether a replacement could be obtained.

22.   We had initially understood that the passport was obtained by AA on the Appellant's behalf in Iran. However, the correct factual position is set out at [3] of AA's answers. In summary, AA visited the Appellant when he was in immigration detention and recognised that he was seriously mentally ill. He wanted to take the Appellant back to Germany with him, but the authorities would not let him because the Appellant did not have a passport. AA therefore returned to Iran clandestinely to obtain a power of attorney and with that power of attorney was able to obtain a copy of the Appellant's birth certificate. In consequence of the visit, AA's own refugee status was revoked but later reinstated. However, AA is now resident in Germany with a spouse visa having not renewed his status as a refugee. AA gave the birth certificate to a friend in the UK who was able to obtain the passport for the Appellant. That was given to the Appellant who by then had been released from immigration detention but readmitted to a mental health clinic. It is the Appellant's case (as the Tribunal accepted) that he has since lost the passport.

23.   In light of that explanation, we do not accept Ms Harper's submission that to obtain a replacement either or both of AA and the Appellant would have to place them at an unacceptable risk. Although the Tribunal accepted that the passport was lost, there is no evidence about what has become of the birth certificate. It may well be that the Iranian authorities retained that when issuing the passport. We do not need at this stage to speculate because of course the Tribunal did not consider the issue of replacement. It cannot however be said that any error in that regard is immaterial because a replacement could not safely be obtained.

24.   Ms Harper also submitted that it was not open to the Respondent to raise this argument now as he had not raised the issue before the Tribunal. We accept that he had not done so but we do not accept Ms Harper's submission that the manner of return was a live issue between the parties. Ms Harper drew our attention in this regard to [31] and [32] of the Skeleton Argument which reads as follows:

 

"31. The Tribunal held in SSH and HR (illegal exit: failed asylum seeker) Iran CG [2016] UKUT 308 (IAC) [ 'SSH & HR] at [23] that a returnee to Iran will be questioned, and that if there are any particular concerns arising from their previous activities, then there would be a risk of further questioning, detention and potential ill-treatment. The Tribunal confirmed at [25] that there is a real risk of persecution/ill-treatment in breach of Article 3 ECHR for a person who is imprisoned in Iran.

32. It is submitted that A would be at risk on return to the airport in Iran on account of his escape from prison in Iran and illegal exit..."

25.   The Tribunal did not accept that the Appellant had escaped from prison. We accept that the issue of illegal exit remained a live one. However, we do not accept as Ms Harper submitted that this passage in the Skeleton Argument was sufficient to identify an implied submission that the Appellant would be returned on a laissez-passer to which the Respondent should have responded if he disputed that fact.

26.   SSH and HR was relevant to this appeal but as the Tribunal pointed out at [124] of the Decision did not provide guidance as to the position if a failed asylum seeker were returned on a full passport. This passage in the Skeleton Argument therefore takes matters no further. The Tribunal recognised that the facts of this case were somewhat different from the norm in that the Appellant had at one time had a valid Iranian passport. Whilst accepting that this could not be used because it had been lost, the Tribunal did not consider the option of obtaining a replacement. It simply moved from the finding that the valid passport had been lost to a finding that the Appellant would have to be returned on a laissez-passer.

27.   We do not consider that the Supplementary RFRL takes matters any further either. As Mr Lindsay pointed out, the Supplementary RFRL was dated 26 March 2021. It was not until AA's Answers that the Respondent understood the Appellant's case to be that he no longer had the passport. For that reason, the Supplementary RFRL is understandably silent on the issue of documentation or manner of return. As the Respondent also pointed out at [37] and [39] of the Supplementary RFRL when dealing with SSH and HR, it had previously been determined that the Appellant had not left Iran illegally and that he would be of no interest to the authorities. The Respondent therefore had no reason at that stage to deal with the manner of return further.

28.   We accept that the issue about the manner of return/ documentation for return was not apparently canvassed with the parties and furthermore involved the Tribunal failing to deal with the relevant consideration whether a replacement passport could be obtained or provide reasons why it could not.

29.   For the foregoing reasons, we find that there is an error of law in the Tribunal's determination of this issue, either by making a finding on an issue not raised with the parties or perhaps more accurately by failing to take into account a relevant consideration or providing reasons for the finding it made.

NEXT STEPS

30.   As we have already indicated, it was accepted by both representatives and by us that the Decision is in general very thorough and carefully crafted. The Appellant has not sought to challenge the findings on the issues which were determined adversely to him. We therefore see no reason to interfere with the Decision up to and including paragraph [121]. We therefore preserve that part of the Decision.

31.   Neither do we consider it appropriate to set aside the finding at [124] of the Decision that the Appellant has lost the passport which he had. That finding was open to the Tribunal for the reasons it gave.

32.   We also accept that, if the Appellant were to be questioned at the airport on return, the findings made about his likely reaction and what would flow from it (at [126] to [129] of the Decision) can stand. There is therefore no need for any further medical evidence.

33.   The only issue which remains for re-determination therefore is whether the Appellant could obtain a replacement passport from the Iranian authorities in the UK or via the authorities in Iran either by himself or with the assistance of AA and/or the friend who assisted with this on the last occasion. That may require further evidence of fact as to what happened to the birth certificate. Evidence is also likely to be required from Dr Kashefi or another country expert about the way in which a replacement passport is obtained, whether that would give rise to any risk to the Appellant and/or AA given the findings elsewhere in the Decision and about the procedure at the airport on return for someone returning on a valid full Iranian passport (who has also been found previously not to have left illegally and who is not accepted to have been arrested or detained in the past).

34.   Ms Harper indicated that a longer period than usual would be required to obtain the evidence from Dr Kashefi. In discussions, it appeared that about three months would be required. Whilst we note Mr Lindsay's submissions that the Appellant has been found to have committed a serious offence, we are not aware of any offences committed more recently. We do not accept therefore that an expedited approach is required for re-making. Neither do we consider that a CMR is required as we have set out above the issue which remains and the sort of evidence we would expect to see to deal with that issue.

35.   We have given directions below for the resumed hearing which both representatives accepted should take place in this Tribunal given the narrowness of the issue.

CONCLUSION

36.   For the foregoing reasons, we are satisfied that there is an error of law in the Decision. We set aside the Decision dealing with the risk on return at [122] to [129] and the conclusion in relation to Article 8 ECHR at [130] which depends on the conclusion in that section. However, as set out above, we preserve the finding that the Appellant has lost his passport and also the findings about what would occur if the Appellant were questioned by the Iranian authorities at the airport on return.

NOTICE OF DECISION

The Decision of the First-tier Tribunal (First-tier Tribunal Judges Beach and Bird) promulgated on 3 August 2022 involves the making of an error of law. We set aside [122] to [130] of the Decision and the allowing of the appeal on Articles 3 and 8 ECHR grounds whilst preserving some of the findings in that section as set out above. We preserve up to [121] of the Decision and the dismissal of the appeal on protection and Article 2 grounds. We make the following directions for the rehearing of this appeal.

DIRECTIONS

1.       Within 3 months from the date when this decision is sent, the Appellant shall file with the Tribunal and serve on the Respondent any further evidence on which he relies.

2.       Within 14 days from the date when that evidence is served, the Respondent and Appellant shall file with the Tribunal and serve on the other party a skeleton argument dealing with the issue which remains and the evidence in that regard.

3.       Service on the Respondent is to be provided to Mr Lindsay at his business email address ( [email protected] ) as well as to the general email address for the Respondent.

4.       The hearing will be relisted before UTJ L Smith on the first available date after 4 months from when this decision is sent, face to face, with a time estimate of ½ day. No interpreter will be provided by the Tribunal unless one is requested within 3 months from the date when this decision is sent (it being understood that the Appellant will not give evidence and that AA is unable to do so being resident abroad).

 

 

L K Smith

Upper Tribunal Judge Smith

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

18 June 2024