A black background with a black square
Description automatically generated with medium confidence
|
IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2024-003543; UI-2024-003810 |
|
|
First-tier Tribunal No: PA/53095/2023
|
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 18
th of February 2025
Before
UPPER TRIBUNAL JUDGE
REEDS
DEPUTY UPPER TRIBNAL JUDGE MOXON
Between
Y B
(ANONYMITY ORDER MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation
:
For the Appellant: Mr T. Hussain, Counsel instructed on behalf of the appellant
For the Respondent: Mr Diwnycz, Senior Presenting Officer
Heard at Phoenix House (Bradford) on 13 January 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 the appellant. Failure to comply with this order could amount to a contempt of court.
DECISION AND REASONS
-
The appellant appeals, with permission, against the determination of the First-tier Tribunal (Judge Rakhim) promulgated on 27 June 2024. By its decision, the Tribunal dismissed the appellant's appeal on all grounds against the Secretary of State's decision dated 10 May 2023 to refuse his protection and human rights claim.
-
The FtTJ made an anonymity order, and no grounds were submitted during the hearing for such an order to be discharged. Anonymity is granted because the facts of the appeal involve a protection claim
and that his rights protected under Article 8 outweigh the right of the public to know his identity as a party to these proceedings, the latter being protected by Article 10 of the ECHR. The anonymity order is detailed above.
The background:
-
The factual background can be briefly summarised as follows. The appellant is a national of Iran of Azeri ethnicity. In that respect, it was claimed that his cousin was active in the fight against racial discrimination and that the appellant joined his cousins who had established an underground group of human right activists and distributed leaflets for a gathering on Babak's day when the authorities arrested 8 individuals in the group and the police raided the home of his cousin's friend. The appellant went into hiding, the authorities raided his home, and his family were shown an arrest warrant in his name. The appellant escaped to Turkey assisted by his cousin's friend on 20 July 2019. He made a claim for asylum on 22 August 2019.
-
The respondent refused the claim in a decision taken on 10 May 2023. The respondent accepted that the applicant was of Azeri ethnicity, that he was a national of Iran and that he had been a victim of racial discrimination and had left Iran illegally. It was not accepted that he had come to the adverse attention of the Iranian authorities, and it was also not accepted that there were very significant obstacles to return or that there were any exceptional circumstances in his case to justify a grant of leave.
-
The appellant appealed the decision which led to the appeal before the FtT. In his decision the FtTJ set out the issues in dispute at paragraph 7 as whether the appellant had come to the adverse attention of the Iranian authorities due to his political opinion and activities in support of the human rights group seeking to raise awareness of discrimination against those of Azeri ethnicity such as to give rise to a real risk of persecution on return. It was agreed this included an assessment of the appellant's credibility. The second issue related to Article 8. At paragraph 8 it was confirmed by the respondent's advocate at the outset of the hearing that sufficiency of
protection and internal relocation was not contested therefore those issues were not considered by the FtTJ.
-
In a decision promulgated on 27 June 2024, the FtTJ dismissed the appeal having rejected his account that he had been credible in his claim to have been of adverse interest to the authorities and that the appellant had no political profile in Iran or in the UK and therefore would not be at risk upon return.
The hearing before the Upper Tribunal:
-
The appellant applied for permission to appeal in an application made on 12 July 2024. The application was based on 2 grounds. Ground 1 set out that the FtTJ failed to apply the extant country guidance on Iran in respect of the return procedure to that country and the manner in which activities abroad (political or otherwise) might come to the attention of the Iranian authorities. As to ground 2, it was submitted that the FtTJ erred in law by failing to take account of material matters when reaching his overall conclusions. Firstly, it was submitted that it was of significance that at the time events in Iran took place the appellant was a child and that he was only 16 years of age at the time he left Iran. This was material consideration in the assessment of the evidence which had not been assessed. Secondly, it was submitted that the FtTJ had failed to assess his lack of religion as part of the risk assessment.
-
Permission to appeal was granted by FtTJ Scott on 31 July 2024 based on ground 2 which dealt with the issue of the applicant's age. However the FtTJ did not grant permission on ground 2 in relation to the failure to apply country guidance, nor the failure to consider the appellant's lack of active belief in religion. Thus permission was granted on a limited basis.
-
Following this the appellant sought permission to appeal to the Upper Tribunal and renewed the grounds upon which permission to appeal had been refused by FtTJ Scott. The renewed grounds relied upon the earlier grounds of appeal and stated that the refusal on this ground misunderstood the ratio of the country guidance decisions and in particular
BA (demonstrators in Britain - risk on return) Iran CG [2011] UKUT 36 and that it did not address the question of whether and in what circumstances an individual's activities will be uncovered at the "pinch point" of return itself. The grounds therefore referred to other country guidance decisions which referred to the possible risk arising at the "pinch point" of arrival.
-
As to the 2
nd ground which related to the lack of belief in any particular religion, it was submitted that the FtTJ failed to address a material risk factor in the holistic risk assessment in respect of his return to Iran. This, when taken together with his Azeri ethnicity, the discrimination throughout his life so far, illegal exit from Iran and his low-level political activity in United Kingdom, was a material consideration in assessing the real risk on return. This was a "Robinson obvious" point and the need for decisions of the Tribunal to
display anxious scrutiny require that any deficiencies in the way in which the argument was advanced be remedied.
-
The Upper Tribunal granted permission on the grounds that had been previously refused by FtTJ Scott, and that it was arguable that the FtTJ did not properly assess the risks to the appellant on return on the basis of what was accepted - his ethnicity, some low-level activity and other factors - when assessing the risk on return given the "hair trigger" approach of the Iranian authorities. The Upper Tribunal also set out that it would be for the appellant's representatives to address this in detail and to identify how this was a Robinson obvious point. A direction was made for the appellant to prepare and serve a skeleton argument 5 days before the hearing.
-
The
hearing took place on 13 January 2025. The appellant was represented by Mr Hussain, of Counsel and the respondent by Mr Diwnycz, Senior Presenting Officer. Mr Hussain had made a written request for the hearing to take place as a remote hearing and for which permission had been granted, thus he appeared before the Tribunal by way of video hearing. Mr Diwnycz was present at the hearing centre. There were no difficulties encountered in hearing of the submissions made by each of the advocates or for the advocates to hear each other's respective submissions. We set out below a brief summary of those submissions and address them when setting out our analysis and conclusions.
-
Mr Hussain relied upon the grounds of challenge. He confirmed that there was no skeleton argument provided on behalf of the appellant as directed by the UTJ but that he would seek to provide his oral submissions in addition to the written grounds of challenge.
-
Ground 1 set out that the FtTJ failed to apply the extant country guidance on Iran in respect of the return procedure to that country and the manner in which activities abroad (political or otherwise) might come to the attention of the Iranian authorities. Reference was made to paragraph 54 of the decision, where the FtTJ considered the appellant's attendance at a political demonstration in the United Kingdom. It was accepted by the FtTJ that the appellant attended such a demonstration and went on to conduct a risk assessment at paragraph 54, finding that his attendance and being part of the crowd would not bring him to the adverse attention of the authorities, and at paragraph 55 found that the appellant did not have any political profile in Iran or the UK and therefore would not be at risk on return. It was submitted that the assessment was his activities in the UK were of a "low level" and as such would not come to the attention of the authorities. However it was submitted that the assessment did not deal with the question of whether or not, applying the settled country guidance the appellant would come to the attention of the Iranian authorities at the point of return. Reference was made to country guidance decisions whereby it was stated that decision-makers must consider the possible risks arising at the "pinch point" of arrival and that all returning failed asylum seekers are subject to questioning on arrival, and this will include questions about why they claimed asylum. It was submitted that the judge failed to apply the guidance or to consider whether, at the point of return, his political activities in the United Kingdom may become known to the Iranian state through the direct questioning of the appellant.
-
As to ground 2, it was submitted that the FtTJ erred in law by failing to take account of material matters when reaching his overall conclusions. Firstly, it was submitted that it was of significance that at the time the events in Iran took place the appellant was a child and that he was only 16 years of age at the time he left Iran. This was a material consideration in the assessment of the evidence of what he might be expected to know. The FtTJ failed to have regard to that and to assess the significance. Secondly, it was asserted that the appellant expressed in his asylum interview that he was not a follower of the Islamic faith. There had been no challenge to the appellant's evidence on this issue and whilst the interviewer mischaracterised the appellant as an atheist (see question 30), it is perhaps better understood as falling within the scope of agnostic theism. However given the accepted fact of the appellant's case taking into account his Azeri ethnicity, discrimination throughout his life and illegal exit from Iran and given the Iranian state attitude towards religion it was submitted that the appellant's lack of active belief in religion was a material matter that needed to be considered and dealt with as part of the risk assessment and at the "pinch point" of return. It was acknowledged it was not clear whether the judge was asked by the advocate consider that point, but this was a "Robinson obvious" issue.
-
In his oral submissions in respect of ground 1 it was submitted that the FtTJ had failed to take account or apply relevant country guidance decisions that dealt with the "pinch point" on return. It was an error of law not to apply country guidance decisions to a relevant issue and in this case it included consideration of relevant factors such as his ethnicity, that he left illegally, that he was a failed asylum seeker and also it was accepted by the FtTJ he had participated in a demonstration in the UK. He submitted that what the FtTJ failed to do was to assess risk at the "pinch point" of return, and how he would be questioned at the airport which was at the heart of the risk assessment. As the issue related to established country guidance, whether or not Counsel at the hearing dealt with it this was a "Robinson obvious" point and would be material to the outcome. Mr Hussain took the panel through the relevant country guidance decisions.
-
As regards ground 2 Mr Hussain relied upon the written grounds of challenge. He submitted that if an adverse finding was made on the basis of the inability to recall matters, the appellant's age should have been taken into account when assessing issues of credibility. This demonstrated a lack of anxious scrutiny. That being the case, the decision demonstrated a material error of law and should be remitted to the FtT.
-
The respondent had not filed a reply to the grounds of appeal under Rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008. In respect of ground 2 Mr Diwnycz submitted that it was accepted that the appellant was a minor when he left Iran and whilst the FtTJ made no reference to his age, it was of no great significance as the FtTJ was aware of his age by reference to his date of birth. The FtTJ therefore did not err in law in this respect.
-
Dealing with ground 1, he submitted that there was no challenge made to paragraph 54 of the decision, that there was no sur place claim made and the FtTJ considered the evidence given by the appellant at the hearing that he had attended a demonstration. There was little evidence of this, for example photographs and therefore did not appear to be a major point. There was no Internet activity undertaken by the appellant and the evidence consisted of the attendance at one demonstration. In his submissions he acknowledged that there had been no reference to the country guidance decisions but submitted that the FtTJ had them in mind when looking at the level of activity undertaken, along with the other risk factors. Given that he was a low profile there would be nothing to expose him to risk on return.
Analysis and conclusions:
-
Before undertaking an assessment of the grounds, we take into account the following matters. First, we must read the decision of the FtTJ sensibly and holistically and exercise appropriate restraint before interfering with it. Secondly, a brief decision does not mean necessarily that it is erroneous in law. Thirdly, what is required in a decision will be case specific and will depend on the nature of the issue (s) in play.
-
We consider the grounds advanced on part of the appellant but not necessarily in the order in which they have been so advanced. In our view it is necessary to consider ground 2 which relates to the failure to take into account material matters because ground 2 (i) relates to the assessment of the evidence and issues of credibility which if made out will have a material effect on the other grounds and in particular ground 1 and the issue of risk on return and the submissions directed towards the position of the appellant at the "pinch point" of return.
-
We have set out the detailed written grounds dealing with the issues advanced in respect of ground 2 (i). We are satisfied that the grounds are made out. It was of significance that at the time of the events in Iran the appellant was a child. There is no dispute that the appellant was only 16 years of age at the time he left Iran. Consequently the events upon which he relied and were relevant to the core of his claim took place when he was a child. When assessing the appellant's factual claim in the context of his credibility, the appellant's age at the time the events took place was a material consideration in that assessment in terms of what he might be expected to know, or to have been aware of and whether he was able to recall with any sufficient clarity as the grounds submit.
-
We can find nowhere in the decision where the FtTJ took the appellant's age into account when addressing issues of credibility. In this respect we reject the submission made by Mr Diwnycz that the FtTJ's recording of the date of birth was sufficient to demonstrate that the FtTJ can be taken to have been aware of his age. In this respect whilst the FtTJ set out the appellant's date of birth that by itself does not demonstrate that he applied his age to the circumstances of the appellant or took account of his age when assessing the credibility or likelihood of the events that had taken place in Iran. In our view the appellant's age was a relevant material consideration not only as he was at the date of the hearing but also to determine the relationship between his age and the evidence given and whether the evidence given in those circumstances and his experience as a child should have been taken into account when considering if there were inconsistencies or any discrepancies in that evidence.
-
In that regard we take into account that the FtTJ made a number of adverse credibility findings and in particular that the FtTJ referred to the oral evidence that the appellant had given for example the lack of evidence relating to MS who was in the United Kingdom (see paragraph 39). However there were a number of findings made based on the vagueness of his account or that he had provided answers which lacked specificity in his asylum interview (see paragraphs 44, 45 and 46). References were made to the appellant being vague when describing the organisation and having provided generic answers lacking specificity. The FtTJ found that the vagueness was not consistent with the appellant's evidence when referring to the events in Iran and the activities undertaken but the FtTJ had not taken into account the appellant's age at the time that he was involved with the events or whether his age could have any bearing on the assessment of credibility and his recall of facts or the ability to provide evidence. Thus there was no consideration of his age and the effect that it may have had upon his evidence.
-
We find that this is also supported by the overall assessment of credibility set out at paragraph 57 where the FtTJ sat out that he considered the appellant has provided inconsistent evidence and that his account was not plausible by reference to the "lack of detail" and consequently he attached "low weight" to his evidence. Additionally, we note at paragraph 58 that the FtTJ drew an adverse inference under Section 8 of the 2004 Act based on his failure to claim asylum. His age at the time of the events and that he was a child was not taken into account when reaching that adverse inference. The appellant claims he
left Iran on 17 July 2019 at which time he had just turned 16 years of age. When he arrived in the UK on 22 August 2019 and claimed asylum 3 days later, he was still only 16 years of age. The appellant provided answers in interview about this issue (see question 140) and the events that took place. However the FtTJ made no finding as to whether he accepted that account thus did not assess whether there was a failure to take advantage of or a reasonable opportunity to make an asylum claim and by reference to his age.
We refer to the decision in
KA (Afghanistan) v SSHD [2019] EWCA Civ 914 which states, at paragraph 47:
"...
one might expect a decision maker not to be over-exacting in downgrading a child's credibility for having failed to make earlier claims in other countries. In my judgment, the question of failure to make an earlier asylum claim might be thought to attract less adverse weight in the case of an unaccompanied minor than in other cases."
-
In the circumstances we are satisfied that the appellant's age was a material consideration which was not taken into account and thus has the effect of undermining the assessment of credibility. The ground is therefore established.
-
Having found the ground 2 (i) has been established, it is not necessary to consider the other grounds of challenge because the ground which relates to the assessment of risk on return and the failure to have regard to the country guidance decisions relevant to the "pinch point" of return will be affected by the assessment of whether the appellant is of interest to the Iranian authorities based on the events that took place in Iran. For the reasons that we have given that assessment will be conducted afresh in light of the error of law as found.
-
However we do observe that in relation to the grounds of challenge relevant to his religion, it has not been demonstrated that this issue was canvassed as a risk factor before the FtTJ. In this regard remind ourselves of the decision in In
Lata (FtT: principal controversial issues)
[2023] UKUT 163 (IAC)
where it was made clear that the parties are under a duty to provide the First-tier Tribunal with relevant information as to the circumstances of the case and that required constructive engagement with the First-tier Tribunal. It was also made clear that it was a misconception for a party to remain silent upon or not to make express consideration and then to place the burden upon the Judge to consider all potential issues.
-
It is usually up to the parties to consider the issues with sufficient specificity and judges do not err in law if they fail to take account of a point which was never raised for their consideration (see
Lata above). Whilst the decision in
Lata explains that this is not so if the point is a
Robinson obvious one, it has not been established in behalf of the appellant that it was "Robinson obvious"; had it been so we are satisfied that it would have been outlined as a risk factor and submissions would have been directed towards that issue for the FtTJ's consideration.
-
Furthermore we were addressed by Mr Hussain as to the country guidance decisions relevant to risk on return to Iran. Whilst Mr Hussain placed significance reliance upon the decision of
AB and Others (internet activity - state of evidence) Iran [2015] UKUT 257, this is not a country guidance decision, nor had it been advanced on behalf of the appellant that he was a "blogger" or that he had any social media presence in the UK. However, we are satisfied that the thrust of the country guidance decisions including
BA (demonstrators in Britain - risk on return) Iran CG [2011] UKUT 36,
XX (PJAK)
- sur place activities - Facebook)
Iran CG [2022] UKUT 23 and
HB (Kurds) CG [2018] UKUT 430 do demonstrate that a returnee without a passport is likely to be questioned on return at the "pinch point" and the Iranian authorities demonstrate what the case law described as a "hair trigger" approach to those perceived to be suspected of or involved in political activities. The appellant is not of Kurdish ethnicity, and it would be for the appellant to demonstrate that his Azeri ethnicity would be likely to place him in a position of adverse interest alongside the other risk factors identified in those country guidance decisions. However we note that the FtTJ appeared to have accepted that the appellant did participate in a demonstration in the UK, and even if this was "low level" activity the FtTJ was required to assess whether the appellant was likely to disclose his having attended a demonstration in the UK. We can see no assessment of the appellant's motivation for having attended the demonstration. There appears to be a lack of evidence generally as to that demonstration as Mr Diwnycz submitted. However there was an absence of consideration of what would happen at the "pinch point of return" and by reference to any risk factors relevant to the appellant. We make it plain that this ground is materially affected by the issues of credibility that relates to risk on return based on events in Iran and are relevant to the establishment of any risk.
-
For those reasons we are satisfied that the decision of the FtTJ demonstrated the making of an error on a point of law and therefore we set aside the decision.
32.
We have considered how the decision should be re-made and have concluded that it should be in the First-tier Tribunal, where primary findings of fact on credibility and risk on return should be re- made. In reaching a decision as to the venue for the hearing, we have given careful consideration to the Joint Practice Statement of the First-tier Tribunal and Upper Tribunal concerning the disposal of appeals in this Tribunal.
"[7.2] The Upper Tribunal is likely on each such occasion to proceed to re-make the decision, instead of remitting the case to the First-tier Tribunal, unless the Upper Tribunal is satisfied that:-
(a) the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party's case to be put to and considered by the First-tier Tribunal; or
(b) the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal."
-
Having considered the practice statement recited
and the decision of the Court of Appeal in
AEB v SSHD[2022] EWCA Civ 1512 and that of the Upper Tribunal in
Begum (Remaking or remittal) Bangladesh [2023] UKUT 46, and in the light of the overriding objective
we are satisfied that the appeal falls within paragraph 7.2 (b) as it will be necessary to undertake an assessment of all the factual evidence, oral and documentary, when reaching a decision.
-
Consequently for those reasons the appellant has established that the FtTJ's decision involved the making of an error on a point of law, therefore the decision shall be set aside and remitted to the FtT for a fresh hearing.
None of the findings of fact made by the FtTJ are preserved.
Notice of Decision:
The decision of the First-tier Tribunal involved the making of an error on a point of law; the decision of the FtTJ shall be set aside and be remitted to the FtT for a fresh hearing.
Upper Tribunal Judge Reeds
Judge of the Upper Tribunal
Immigration and Asylum Chamber
10 February 2025
