HB (Kurds) Iran (illegal exit: failed asylum seeker) CG [2018] UKUT 430 (IAC) (12 December 2018)

Upper Tribunal

(Immigration and Asylum Chamber)

HB (Kurds) Iran CG [2018] UKUT 430 (IAC)

THE IMMIGRATION ACTS

Heard at Field House

Decision & Reasons Promulgated

On 20-22 February and 25 May 2018

Before

UPPER TRIBUNAL JUDGE MARTIN

UPPER TRIBUNAL JUDGE KOPIECZEK

Between

(ANONYMITY DIRECTION made)

Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Ms S Naik QC and Mr R Spurling, Counsel instructed by Barnes Harrild & Dyer Solicitors

For the Respondent: Mr E Metcalfe, Counsel instructed by the Treasury Solicitor

COUNTRY GUIDANCE

(1) SSH and HR (illegal exit: failed asylum seeker) Iran CG [2016] UKUT 308 (IAC) remains valid country guidance in terms of the country guidance offered in the headnote. For the avoidance of doubt, that decision is not authority for any proposition in relation to the risk on return for refused Kurdish asylum-seekers on account of their Kurdish ethnicity alone.

(2) Kurds in Iran face discrimination. However, the evidence does not support a contention that such discrimination is, in general, at such a level as to amount to persecution or Article 3 ill-treatment.

(3) Since 2016 the Iranian authorities have become increasingly suspicious of, and sensitive to, Kurdish political activity. Those of Kurdish ethnicity are thus regarded with even greater suspicion than hitherto and are reasonably likely to be subjected to heightened scrutiny on return to Iran.

(4) However, the mere fact of being a returnee of Kurdish ethnicity with or without a valid passport, and even if combined with illegal exit, does not create a risk of persecution or Article 3 ill-treatment.

(5) Kurdish ethnicity is nevertheless a risk factor which, when combined with other factors, may create a real risk of persecution or Article 3 ill-treatment. Being a risk factor it means that Kurdish ethnicity is a factor of particular significance when assessing risk. Those “other factors” will include the matters identified in paragraphs (6)-(9) below.

(6) A period of residence in the KRI by a Kurdish returnee is reasonably likely to result in additional questioning by the authorities on return. However, this is a factor that will be highly fact-specific and the degree of interest that such residence will excite will depend, non-exhaustively, on matters such as the length of residence in the KRI, what the person concerned was doing there and why they left.

(7) Kurds involved in Kurdish political groups or activity are at risk of arrest, prolonged detention and physical abuse by the Iranian authorities. Even Kurds expressing peaceful dissent or who speak out about Kurdish rights also face a real risk of persecution or Article 3 ill-treatment.

(8) Activities that can be perceived to be political by the Iranian authorities include social welfare and charitable activities on behalf of Kurds. Indeed, involvement with any organised activity on behalf of or in support of Kurds can be perceived as political and thus involve a risk of adverse attention by the Iranian authorities with the consequent risk of persecution or Article 3 ill-treatment.

(9) Even ‘low-level’ political activity, or activity that is perceived to be political, such as, by way of example only, mere possession of leaflets espousing or supporting Kurdish rights, if discovered, involves the same risk of persecution or Article 3 ill-treatment. Each case however, depends on its own facts and an assessment will need to be made as to the nature of the material possessed and how it would be likely to be viewed by the Iranian authorities in the context of the foregoing guidance.

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

TABLE OF CONTENTS

Description

Paragraphs

INTRODUCTION

1-8

The Country Guidance question

RULE 15(2)(A) APPLICATION

9-17

EXISTING COUNTRY GUIDANCE AND RELATED CASES

19-22

THE LEGAL FRAMEWORK-COUNTRY GUIDANCE STATUS

23-25

COUNTRY BACKGROUND-HUMAN RIGHTS

General

26-28

Kurds

29-32

ASSESSMENT AND CONCLUSIONS-COUNTRY GUIDANCE

(i) SSH and HR ; a starting point?

33-41

(ii) The expert evidence-evaluation

42-66

(iii) Returns

67-79

(iv) Conclusions

80-97

COUNTRY GUIDANCE

THIS APPELLANT-ASSESSMENT AND CONCLUSIONS

99-122

ANNEX A

Error of law decision

ANNEX B

Expert evidence

ANNEX C

Submissions

ANNEX D

Index of background evidence

DECISION AND REASONS

INTRODUCTION

1. The appellant is a citizen of Iran, born in 1988, and is of Kurdish ethnicity. This decision gives country guidance in relation to the following question, namely “whether a failed asylum seeker of Kurdish ethnicity will be at risk of persecution on return”.

2. Although in the parties’ various written submissions there were mildly different iterations of the country guidance issue, the country guidance question was and is as expressed in the preceding paragraph, as agreed by the parties at the hearing before us.

3. There was before us a statement of agreed facts which was, ultimately, confirmed by the parties as agreed between them at the hearing on 25 May 2018.

4. The statement of agreed facts is reproduced here in full, with the only editing being that in relation to the appellant’s full date of birth. The agreed facts are as follows:

“1. The appellant is of Kurdish ethnicity. He was his parents’ only child, born [in] 1988 in Betoosh, Sardasht, Iran. His father was a shepherd, his mother a housewife. In 1994 his parents disappeared. The appellant believes that this is because they were arrested by the authorities for involvement in Kurdish nationalist activities. At or around the same time there was a fire at his family home, during which the appellant suffered burns injuries.

2. The appellant was taken by his uncle to Iraq, where he grew up undocumented. He was bullied and harassed by others in the village due to a disability in his legs and the fact that he was an outsider. When he reached adulthood he returned to Iran, where, with his uncle’s assistance, he raised money to pay for his journey abroad by the sale of his family land. He left Iran illegally on 1 September 2015, reaching the United Kingdom in early July 2016.

3. The appellant claims he cannot live undocumented and discriminated against in Iraq – where he does not have citizenship or right to reside – and he cannot return to Iran given his family’s claimed involvement with pro-Kurdish separatist groups .”

5. The appellant’s appeal against the respondent’s decision dated 19 December 2016 to refuse his protection claim, came before First-tier Tribunal Judge Nicholls (“the FtJ”) at a hearing on 27 January 2017 whereby his appeal was dismissed. In a decision promulgated on 31 May 2017 Upper Tribunal Judge Storey found an error of law in Judge Nicholls’ decision and set his decision aside, for the decision to be re-made in the Upper Tribunal (“UT”). Judge Storey’s error of law decision is included as an annex to our decision.

6. The agreed facts reflect the findings made by the FtJ, subject of course to the matters that remain in dispute, and subject to further specific reference to the FtJ’s findings. However, the FtJ found that the evidence did not show that the appellant had been involved in any sur place political activity which had drawn him to the adverse attention of the authorities in Iran. Thus, the anti-Iranian government messages that he had claimed to have posted on Facebook would not expose him to risk. Further, permission to appeal was granted only on the issue of whether a failed asylum seeker of Kurdish ethnicity would be at risk of persecution on return.

7. We heard oral evidence from two expert witnesses, Anna Enayat and Professor Emile Joffé. They each provided written reports and written answers to questions in writing from the respondent. Professor Joffé’s report is dated 14 October 2017 and that of Ms Enayat is dated 22 January 2018. Although their evidence is summarised at ANNEX B, it essential to a full understanding of this decision that full reference is made to the summarised expert evidence. We make further reference to aspects of their written and oral evidence in our conclusions.

8. We give a summary of the parties’ submissions which is to be found at ANNEX C. We make further reference to the submissions as appropriate in our conclusions. So far as the written submissions are concerned, these are in the parties’ skeleton arguments provided in advance of the hearing, and written submissions provided in advance of closing oral submissions. It is the closing written submissions which we summarise since they crystallise the parties’ arguments with necessary references to the skeleton arguments.

9. Before hearing the oral evidence we considered an application made pursuant to rule 15(2A)(a) of the Tribunal Procedure (Upper Tribunal) Rules 2008 to admit additional evidence. That evidence was of Facebook posts made by the appellant both prior to and after the hearing before the First-tier Tribunal (“FtT”).

RULE 15(2A) APPLICATION

10. The documents which were the subject of the application are contained in a bundle of 59 pages. They are posts under the appellant’s name and are accompanied by translations of posts between 24 December 2016 and 16 January 2017. The date range for the posts is 24 December 2016 to 16 January 2017 (pre-FtT hearing) and 23 February 2017 to 23 October 2017 (post-FtT hearing), the latter not being accompanied by translations. The written application to admit the evidence, dated 19 February 2018, refers to the appellant having given evidence before the FtT of posting material on Facebook, a matter referred to by the FtJ at [16] of his decision. The application states that the posts had been translated on 26 January 2017 for the purpose of the FtT hearing but were not served and only came into the possession of the appellant’s representatives on 19 February 2018, the date of the application. The application to admit the evidence was supported by a witness statement of counsel employed at the appellant’s solicitors, but not counsel who appeared before the FtT on behalf of the appellant.

11. Summarising counsel’s witness statement, it says that counsel had not seen any Facebook evidence in the files that were passed to him when he took over conduct of the appeal “although there was an attendance note pre-dating the First-tier Tribunal hearing in which it is written that the appellant was advised to download his Facebook posts”. The statement continues that “The materiality of such evidence was not central to my preparation of the evidence presented in the bundles for the Tribunal given the subject matter of the appeal”. That was why he had not sought to “trace” the evidence earlier. The witness statement continues that once it was realised that it would be important for the Tribunal to be fully aware that the appellant’s evidence in his witness statement in relation to Facebook posts could be substantiated, he began to make enquiries of counsel involved at the hearing before the FtT and of the appellant himself. Counsel appearing before the FtT explained to him that he had not been given any Facebook material and could not remember whether the appellant himself had any with him on the day of the hearing. It appears then that there was some difficulty in counsel making contact with the appellant by phone.

12. An interpreter from a translation agency was contacted who thought, but could not remember clearly, that the Facebook posts had been translated. Counsel states that unfortunately those translations were not provided to him or to counsel at the hearing. That the translations had in fact been made was later confirmed with the translation agency. The statement continues that no-one from the agency could explain why the Facebook evidence and translations were not made available to the appellant or his then caseworker or counsel so that it could be served at his hearing. The translations were apparently made the day before the FtT hearing.

13. In opposing the application to admit the evidence Mr Metcalfe observed that the witness statement in support of the application does not say anything about the timeframe relative to when it was discovered that this material was potentially relevant. Further, it was apparent from the skeleton argument before the FtT and AB and Others (internet activity – state of evidence) Iran [2015] UKUT 257 that Facebook material was to be relied upon. Both the author of the witness statement and counsel appearing before the FtT would have been aware of the significance of that material. There was no explanation as to why the material was translated but not adduced in evidence before the FtT.

14. It was further submitted that it was not appropriate to allow that evidence to be admitted now, particularly in the context of the hearing being a country guidance case. There had been no notice of the application and no opportunity to consider the material in any detail. It was inappropriate and unfair for the material to be admitted now. In relation to the Facebook posts post-hearing, those, it was argued, were surely a matter for further submissions in due course.

15. Ms Naik submitted that it was clear from the appellant’s witness statement that his case has always been that there were Facebook posts to be taken into account. The FtJ’s decision accepted that there was such material at [16]-[17]. Furthermore, on behalf of the appellant no issue had been taken in relation to the late service of the respondent’s skeleton argument or the agreed facts statement. The appellant’s account that he had shared material on Facebook was accepted by the FtJ.

16. It was submitted that in deciding the appellant’s appeal we would be assisted by the material sought to be adduced given that this was the first day of the hearing and there would be ample opportunity for questioning of experts on that material. It could not have been admitted before. That the material was not relied on at the hearing before the FtT could not be explained any further. The appellant’s internet activity is significant in terms of risk on return.

17. We decided to allow the new evidence to be admitted, having considered rule 15(2A) which provides as follows:

“In an asylum case or an immigration case -

(a) if a party wishes the Upper Tribunal to consider evidence that was not before the First-tier Tribunal, that party must send or deliver a notice to the Upper Tribunal and any other party –

(i) indicating the nature of the evidence; and

(ii) explaining why it was not submitted to the First-tier Tribunal; and

(b) when considering whether to admit evidence that was not before the First-tier Tribunal, the Upper Tribunal must have regard to whether there has been unreasonable delay in producing that evidence.”

18. We should say that the explanation provided as to why the evidence was not adduced before the FtT was rather weak. The assertion by the author of the witness statement in support of the application that the materiality of the evidence was not central to his preparation of the case is rather surprising given the nature of the evidence in the context of an asylum claim from an Iranian national. Nevertheless, the evidence is potentially of great significance and is a matter which we have balanced against the explanation for the evidence arising prior to the hearing before the FtT not having been adduced previously, and the post-FtT evidence not having been flagged up earlier. We have also considered the issue of “unreasonable delay”. Further, we took the view that given the timetable for the hearing before us, there was sufficient time for the respondent to consider that material such as would allow for the matters to be canvassed in cross-examination of the expert witnesses and for submissions to be made on it.

EXISTING COUNTRY GUIDANCE AND RELATED CASES

19. As of 26 June 2018 there are 19 country guidance cases on Iran from the UT or its predecessor the Immigration and Asylum Tribunal. They date from 2002 to 2016, representing therefore, over a decade of judicial guidance on the assessment of protection claims from Iran. The range of issues covered is broad, dealing with, amongst other things, prison conditions, adultery, homosexuality, religion and ethnicity.

20. In the light of the above, we can say two things. First, the nature of the ‘regime’ in Iran, can, to some extent at least, be taken as read, in terms of its human rights record, subject to evidence about recent developments. Second, that we do not consider it necessary to refer to every one of those country guidance cases in dealing with the issues that arise in this appeal. We only need refer in this section, which encapsulates the most recent country guidance, to some of those cases which were referred to by the parties as being of particular relevance, and which we too consider pertinent to the issues. For each of the cases we set out its guidance.

21. The decision in AB and Others is categorically not country guidance; it does not have that designation. However, it is a reported case in terms of the evidence that was before the Tribunal and both parties referred to it in that context. It is appropriate to include it in this section although noting that it is not country guidance.

22. The cases:

SB (risk on return-illegal exit) Iran CG [2009] UKAIT 00053

(i) Events in Iran following the 12 June 2009 presidential elections have led to a government crackdown on persons seen to be opposed to the present government and the Iranian judiciary has become even less independent. Persons who are likely to be perceived by the authorities in Iran as being actively associated with protests against the June 12 election results may face a real risk of persecution or ill treatment, although much will depend on the particular circumstances.

(ii) Iranians facing enforced return do not in general face a real risk of persecution or ill-treatment. That remains the case even if they exited Iran illegally. Having exited Iran illegally is not a significant risk factor, although if it is the case that a person would face difficulties with the authorities for other reasons, such a history could be a factor adding to the level of difficulties he or she is likely to face.

(iii) Being a person who has left Iran when facing court proceedings (other than ordinary civil proceedings) is a risk factor, although much will depend on the particular facts relating to the nature of the offence(s) involved and other circumstances. The more the offences for which a person faces trial are likely to be viewed as political, the greater the level of risk likely to arise as a result. Given the emphasis placed both by the expert report from Dr Kakhki and the April 2009 Danish fact-finding report’s sources on the degree of risk varying according to the nature of the court proceedings, being involved in ongoing court proceedings is not in itself something that will automatically result in ill-treatment; rather it is properly to be considered as a risk factor to be taken into account along with others.

(iv) Being a person involved in court proceedings in Iran who has engaged in conduct likely to be seen as insulting either to the judiciary or the justice system or the government or to Islam constitutes another risk factor indicating an increased level of risk of persecution or ill treatment on return.

(v) Being accused of anti-Islamic conduct likewise also constitutes a significant risk factor.

(vi) This case replaces AD (Risk-Illegal Departure) Iran CG [2003] UKAIT 00107.

BA (Demonstrators in Britain – risk on return) Iran CG [2011] UKUT 36 (IAC)

1 Given the large numbers of those who demonstrate here and the publicity which demonstrators receive, for example on Facebook, combined with the inability of the Iranian Government to monitor all returnees who have been involved in demonstrations here, regard must be had to the level of involvement of the individual here as well as any political activity which the individual might have been involved in Iran before seeking asylum in Britain.

2 (a) Iranians returning to Iran are screened on arrival. A returnee who meets the profile of an activist may be detained while searches of documentation are made. Students, particularly those who have known political profiles are likely to be questioned as well as those who have exited illegally.

(b) There is not a real risk of persecution for those who have exited Iran illegally or are merely returning from Britain. The conclusions of the Tribunal in the country guidance case of SB (risk on return -illegal exit) Iran CG [2009] UKAIT 00053 are followed and endorsed.

(c) There is no evidence of the use of facial recognition technology at the Imam Khomeini International airport, but there are a number of officials who may be able to recognize up to 200 faces at any one time. The procedures used by security at the airport are haphazard. It is therefore possible that those whom the regime might wish to question would not come to the attention of the regime on arrival. If, however, information is known about their activities abroad, they might well be picked up for questioning and/or transferred to a special court near the airport in Tehran after they have returned home.

3 It is important to consider the level of political involvement before considering the likelihood of the individual coming to the attention of the authorities and the priority that the Iranian regime would give to tracing him. It is only after considering those factors that the issue of whether or not there is a real risk of his facing persecution on return can be assessed.

4 The following are relevant factors to be considered when assessing risk on return having regard to sur place activities:

(i) Nature of sur place activity

· Theme of demonstrations – what do the demonstrators want (e.g. reform of the regime through to its violent overthrow); how will they be characterised by the regime?

· Role in demonstrations and political profile – can the person be described as a leader; mobiliser (e.g. addressing the crowd), organiser (e.g. leading the chanting); or simply a member of the crowd; if the latter is he active or passive (e.g. does he carry a banner); what is his motive, and is this relevant to the profile he will have in the eyes of the regime?

· Extent of participation – has the person attended one or two demonstrations or is he a regular participant?

· Publicity attracted – has a demonstration attracted media coverage in the United Kingdom or the home country; nature of that publicity (quality of images; outlets where stories appear etc)?

(ii) Identification risk

· Surveillance of demonstrators – assuming the regime aims to identify demonstrators against it how does it do so, through, filming them, having agents who mingle in the crowd, reviewing images/recordings of demonstrations etc?

· Regime’s capacity to identify individuals – does the regime have advanced technology (e.g. for facial recognition); does it allocate human resources to fit names to faces in the crowd?

(iii) Factors triggering inquiry/action on return

· Profile – is the person known as a committed opponent or someone with a significant political profile; does he fall within a category which the regime regards as especially objectionable?

· Immigration history – how did the person leave the country (illegally; type of visa); where has the person been when abroad; is the timing and method of return more likely to lead to inquiry and/or being detained for more than a short period and ill-treated (overstayer; forced return)?

(iv) Consequences of identification

· Is there differentiation between demonstrators depending on the level of their political profile adverse to the regime?

(v) Identification risk on return

· Matching identification to person – if a person is identified is that information systematically stored and used; are border posts geared to the task?

SA (Iranian Arabs-no general risk) Iran CG [2011] UKUT 41

The Iranian state is suspicious of those Iranian citizens who are also Arabs and regards London as a centre of separatist activity. Being an Iranian Arab returned from the United Kingdom enhances other risk factors but an Iranian Arab does not risk persecution or other ill treatment solely by reason of ethnicity.

SSH and HR (illegal exit: failed asylum seeker) Iran (CG) [2016] UKUT 308 (IAC)

(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.

AB and Others (internet activity – state of evidence) [2015] UKUT 257 (IAC)

The material put before the tribunal did not disclose a sufficient evidential basis for giving country or other guidance upon what, reliably, can be expected in terms of the reception in Iran for those returning otherwise than with a “regular” passport in relation to whom interest may be excited from the authorities into internet activity as might be revealed by an examination of blogging activity or a Facebook account. However, this determination is reported so that the evidence considered by the Upper Tribunal is available in the public domain.

THE LEGAL FRAMEWORK-COUNTRY GUIDANCE STATUS

23. The Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal Practice Directions provide as follows in relation to country guidance decisions:

“ 12. Starred and Country Guidance determinations

…

12.2 A reported determination of the Tribunal, the AIT or IAT bearing the letters ‘CG’ shall be treated as an authoritative finding on the country guidance issue identified in the determination, based upon the evidence before the members of the Tribunal, the AIT or the IAT that determine the appeal. As a result, unless it has been expressly superseded or replaced by any later ‘CG’ determination, or is inconsistent with other authority that is binding on the Tribunal, such a country guidance case is authoritative in any subsequent appeal, so far as that appeal:-

(a) relates to the country guidance issue in question; and

(b) depends upon the same or similar evidence.

…

12.4 Because of the principle that like cases should be treated in like manner, any failure to follow a clear, apparently applicable country guidance case or to show why it does not apply to the case in question is likely to be regarded as grounds for appeal on a point of law.”

24. The UT Guidance Note 2011 No.2 on the reporting of UT decisions (as amended in July 2015) adds at [11] that:

“If there is credible fresh evidence relevant to the issue that has not been considered in the Country Guidance case or, if a subsequent case includes further issues that have not been considered in the CG case, the judge will reach the appropriate conclusion on the evidence, taking into account the conclusion in the CG case so far as it remains relevant.”

25. On the question of country guidance, one finds the following in CM (EM country guidance; disclosure) Zimbabwe CG [2013] UKUT 59 (IAC) at [58]:

“It is of importance to note that a Country Guidance case is only authoritative in so far as the evidence in any subsequent appeal is the same or similar. It is thus not a binding precedent that can only be varied by the Upper Tribunal or the higher courts. Where the evidence is materially different it is the duty of the judge of the First -tier Tribunal to evaluate it and reach his or her own conclusion, but in doing so he or she will start from the last extant Country Guidance case and see what if anything has changed. ”

COUNTRY BACKGROUND-HUMAN RIGHTS

General

26. We said at [20] above that the nature of the ‘regime’ in Iran to some extent can be taken as read in terms of its human rights record, subject to evidence about recent developments. The ground is well trodden in the country guidance cases, in their guidance and in the expert evidence put before them.

27. In addition, we need do no more than quote in a limited way from the following reports. First, the Report of the (UN) Special Rapporteur on the situation of human rights in the Islamic Republic of Iran to the Human Rights Council dated 17 March 2017 (“report of the UN Special Rapporteur”) as follows:

“3. …the Government has still not accepted the requests made since 2002 by the Special Rapporteurs on the independence of lawyers and judges; extrajudicial, summary or arbitrary executions; freedom of religion or belief; minority issues; and the promotion and protection of the right to freedom of opinion and expression; as well as the Working Groups on the issue of discrimination against women in law and in practice; Enforced or Involuntary Disappearances; and Arbitrary Detention.

4. The Special Rapporteur regrets that the information she received did not reveal any notable improvement in the situation of human rights in the country. The situation relating to independence of judges and lawyers, freedom of expression and use of arbitrary detention continues to be a matter of serious concern. She notes that some measures are under way, but their implementation and effectiveness is yet to be assessed.

…

24. The Government did not [accept] any of the 20 recommendations regarding torture or other cruel, inhuman or degrading treatment or punishment made during the 2014 universal periodic review.

…

26. Since her appointment, the Special Rapporteur has received numerous reports about the use of torture and other cruel, inhuman or degrading treatment or punishment. These include amputations, blinding and flogging as forms of punishment, physical and mental torture or ill-treatment to coerce confessions (mostly during pretrial detention), prolonged periods of solitary confinement and denial of access to proper and necessary medical treatment for detainees.”

28. Second, the Report of the Secretary-General to the UN on the Situation of human rights in the Islamic Republic of Iran, dated 31 October 2017 as follows:

“5. Since the report of the Secretary-General to the thirty-fourth session of the Human Rights Council (A/HRC/34/40), [30 March 2017] the situation of human rights has been marked by a crackdown against human rights defenders, journalists and users of social media in the lead up to the presidential elections. The application of the death penalty, including for children in conflict with the law, has continued at a high rate. The United Nations human rights mechanisms have continued to receive numerous allegations of cases of torture, cruel, inhuman and degrading treatment, arbitrary detention and unfair trials. United Nations human rights mechanisms have also continued to receive information relating to persistent discrimination against women and the continued persecution of members of religious and ethnic minority groups. Limited progress has been observed during the reporting period in the implementation of the Citizen Rights Charter adopted in December 2016”.

Kurds

29. Below we give a summary of some of the background material before us in relation to the human rights issues that arise in Iran for those of Kurdish ethnicity.

30. The report of the UN Special Rapporteur states the following:

“79. Violations of the rights of ethnic minorities continue to be reported in the country. Almost one fifth of the executions carried out in Iran in 2016 concerned Kurdish prisoners. Among those executions, 21 were related to the crime of “ moharebeh ” (waging war against God and the State) and 1 to membership in a Kurdish political party. Kurdish political prisoners are said to represent almost half of the total number of political prisoners in the country.

80. The Special Rapporteur is seriously concerned about the alleged indiscriminate and blind use of lethal force towards Kurdish kulbaran (back carriers), which may be related to their ethnic affiliation. The kulbaran are Kurdish couriers who engage in smuggling commodities across the border. Due to the high rate of unemployment in Kurdistan provinces, this activity is generally the only way for them to provide for themselves and their family. In 2016, Iranian border security forces reportedly killed 51 kulbaran and injured 71 others, which is about twice as much as the previous year.”

31. The Home Office Country Information and Guidance on Iran “Kurds and Kurdish political groups” version 2.0, July 2016 (“CIG”) contains the following (with footnotes removed but which can be viewed in the original):

3.1.1 Kurds in Iran face discrimination which affects their access to basic services. However, in general, this level of discrimination will not reach the level of being persecutory.

3.1.2 Those involved in Kurdish political groups are however, at risk of arbitrary arrest, prolonged detention and physical abuse from the Iranian authorities . Even those who express peaceful dissent or who speak out about Kurdish rights can be seen as a general threat and face a real risk of persecution.

3.1.3 Family members of persons associated with a Kurdish political group are also harassed and detained and may be subject to inhumane treatment.

3.1.4 Where a person can demonstrate to a reasonable degree of likelihood that they are known or likely to be made known to the Iranian authorities on the basis of their membership or perceived membership of a Kurdish political group they should be granted asylum.

3.1.5 Internal relocation to avoid persecution is unlikely to be an available option.

3.1.6 Where a claim falls to be refused, it is unlikely to be certifiable as ‘clearly unfounded’.

…

4.1.1. The CIA world fact book estimates the population to be approximately 81,824,270. Iran is a multi-ethnic country. The largest ethnic community comprises Persians who constitute about 50-55% of the population. The rest of the population is combined of Kurds, Lurs, Azeris, Arabs, Armenians, and a host of other small ethnicities. Estimates vary as to their numbers, but at up to 8 million, Iran’s Kurdish population is second in size only to the Kurds in Turkey and probably larger than the Iraqi and Syrian Kurdish populations combined.

…

5.2.3 The same source further noted that ‘The activities that Kurds conduct that can be perceived as political activities include social welfare and solidarity activities.

5.2.4 The Danish Refugee Council and Danish Immigration service fact finding mission on Iranian Kurds and Conditions for Iranian Kurdish Parties in Iran and KRI, Activities in the Kurdish Area of Iran, Conditions in Border Area and Situation of Returnees from KRI to Iran 30 May to 9 June 2013, dated 30 September 2013 consulted a western diplomat and expert on Iran in Erbil who stated that; “being a Kurd in Iran does not necessarily mean getting into trouble with the authorities as has been the case in Syria. Troubles will start as soon as a person gets involved in political activities”.

…

5.2.10 Asharq Al-Awsat reported in January 2016 that:

‘Kurdish opposition sources in Iran have revealed yesterday that the executions carried out by the Iranian regime against the Kurds and other components are increasing annually, indicating that during the past nine months, according to the Iranian calendar, Iran executed more than 750 people, the majority of whom were Kurdish.’

5.2.11 In January 2016 Kurdistan Human Rights Network (KHRN) published a report on the violation of Kolber workers in Iran. The report stated that

‘Kolber is a Kurdish name for workers and tradespersons, who for a small sum of money risk their lives to transport packs of various foreign items on their own back or on the back of horses to transfer them from and to Iranian border territories from border areas of neighbouring Kurdish regions in Iraq and Turkey.’

5.2.12 The report went on to state that:

‘The Kolber workers mostly come from Kurdish border villages and towns, where they are usually left with no job other than Kolber work to make a small income to survive through the harsh reality of the deprived Kurdish border areas. However, the Iranian government describes them as “smugglers”, while Iranian soldiers and border guards deliberately shoots to kill them across the border areas.’

5.2.13 Jane’s ‘Sentinel Security Assessment’ noted that ‘there is growing anger in Iran’s Kurdish community over the number of Kurds executed in Iran amid allegations that torture is widespread.’

5.2.14 The US Congressional Research Service reported that:

‘the Kurdish language is not banned, but schools do not teach it and Kurdish political organizations, activists, and media outlets are routinely scrutinized, harassed, and closed down for supporting greater Kurdish autonomy. Several Kurdish oppositionists have been executed since 2010.’

5.2.15 According to the 2015 US State Department Human Rights report for Iran:

‘The estimated eight million ethnic Kurds in the country frequently campaigned for greater regional autonomy. The government continued to use security law, the media law, and other legislation to arrest and prosecute Kurds for exercising their rights to freedom of expression and association.

The government reportedly banned Kurdish-language newspapers, journals, and books and punished publishers, journalists, and writers for opposing and criticizing government policies. Authorities suppressed legitimate activities of Kurdish NGOs by denying them registration permits or bringing security charges against persons working with such organizations. The government did not allow Kurds to register most Kurdish names for their children in official registries. Authorities did not prohibit speaking the Kurdish language, but authorities prohibited most schools from teaching it.

32. At section 11 of the CIG entitled “Treatment of Kurdish political activists and family members” considerable detail is given. It is not necessary for us to quote the whole section; a selection suffices to reveal the import of this part of the CIG. Thus, there is the following:

11.1.1 The Danish Refugee Council and Danish Immigration Service’s joint fact finding mission of September 2013 met with various sources who stated that:

“A Western diplomat and expert on Iran in Erbil explained that there is no tolerance on the Iranian regime’s side for any kind of activities with connection to the Kurdish political parties and any affiliation with one of these parties would be reason for arrest. The main reason for this is that these parties’ ultimate goal, despite their non-violent opposition, is a change in the regime of Iran which is much worse than support for the Green Movement which aims for reforms within the existing system”.

‘…The Western diplomat and expert on Iran in Erbil informed the delegation that the execution rate is high among Kurds in Iran. A large part of these executions are based on accusation of drug smuggling. Sometimes political activists are executed under the pretext of being drug smugglers.

‘…Mustafa Moloudi (KDP-Iran) explained that some of the (KDPI) party members who had been conducting secret activities in Iran were caught by the regime. While some of them were executed and some were freed after a period of detention, others were exchanged. However, those who were freed lost their public jobs, for instance if they were working as teacher, and they were not allowed to work anymore in the public sector’.

‘…Regarding punishment for being a member of Komala, Ebrahim Alizadeh (Komala, SKHKI) told the delegation that if a Komala cell member is arrested by the Iranian regime, he will be tortured, imprisoned for life or even executed. As regards the consequences for the cell member’s family, Alizadeh explained that his family members may be arrested, but they will be freed on bail after a while’.

‘…According to Ziryan Roj Helaty (Tanupo Magazine), the Iranian regime is highly sensitive to the Kurdish population in Iran, and the regime always reacts disproportionately towards activities conducted by Kurds. As a result, if the Iranian regime for instance catches a sympathizer carrying out an activity against the government, the consequences for him and his family will be serious’.

‘…Ziryan Roj Helaty also stated that anything related to KDPI, even talking about the Kurdish people and their rights could create a problem. Someone who talks directly about KDPI is, in the eyes of the regime, affiliated with KDPI, and a person speaking about Kurdish rights is seen as a general threat. … Kurdish patriotism that has spread throughout the Middle East in recent years, may also reach Iran, and this is exactly what the regime in Iran fears’. ‘…According to UNHCR in Erbil, persons with a high political profile as well as human rights activists are targeted. … Members of KDPI will get approximately two to ten years of prison if they are arrested by the Iranian authorities. Based on information from asylum seekers, KDPI members will be tortured during pre-trial detention in order to confess and disclose names of other KDPI members. The duration of the detention will typically be from one to six months depending on the level of the detainee’s engagement. The sentence which is imprisonment will depend on the level of the engagement of the person and the evidence that are (sic) presented against him’.

11.1.4 The Austrian report [compiled] by the Federal Ministry of the Interior on Kurds: History –Religion – Language – Politics dated November 2015 noted that: ‘The mere presumption of being a member of any of these parties can lead to long-term prison sentences. Many Kurds are among the victims of political persecution with frequent charges of terrorism – in particular the alleged support of PJAK – and often disproportionate degrees of punishment.’

11.1.5 On 10 November 2015, International campaign for human rights in Iran reported on a Sunni Kurd who was facing execution. The report noted that: Shahram Ahmadi has been sentenced to death in Iran due to his activism as a Sunni Muslim and a Kurd. Members of ethnic or religious minorities in Iran who engage in criticism of the government are singled out by authorities for particularly harsh treatment, and there is a well-documented history of the Judiciary disproportionately meting out capital punishment to minority activists. “Making speeches, distributing books and pamphlets, or opposing the government are not capital offenses. Unfortunately Judge Moghisseh said that Shahram’s first two crimes are that he’s a Sunni and a Kurd. Therefore he was presumed guilty from the start,” a source told the International Campaign for Human Rights in Iran.

ASSESSMENT AND CONCLUSIONS-COUNTRY GUIDANCE

(i) SSH and HR ; a starting point?

33. To reiterate, the guidance in SSH and HR 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.

34. Plainly then, the Tribunal in that case did not offer any country guidance on the issue of Kurdish returnees, as Judge Storey also said in his error of law decision in this appeal.

35. At [34] of SSH and HR it was stated that it was not suggested to the UT that an individual faces risk on return on the sole basis of being Kurdish.

36. However, in the same paragraph the UT went on to state as follows:

“ It was however agreed that being Kurdish was relevant to how a returnee would be treated by the authorities. For example, the Operational Guidance Note refers at 3.12.14 to the government disproportionally targeting minority groups, including Kurds, for arbitrary arrest, prolonged detention and physical abuse. No examples however have been provided of ill-treatment of returnees with no relevant adverse interest factors other than their Kurdish ethnicity, and we conclude that the evidence does not show risk of ill-treatment to such returnees, though we accept that it might be an exacerbating factor for a returnee otherwise of interest. ”

37. The respondent contends that SSH and HR should be the ‘starting point’ for consideration of the country guidance issue in this case. In written submissions reliance is placed on the whole of [34] and the following passage is emphasised:

“Accordingly we conclude that it has not been shown that a person in the position of these appellants faces a real risk on return to Iran either on the basis of what would happen to them when questioned at the airport or subsequently if they were convicted of an offence of illegal exit.”

38. It is also argued in the respondent’s written submissions that in SSH and HR the UT made its decision “by reference to extensive oral and written evidence from Dr Mohammad Kakhki…” and that it considered specific evidence from him on the treatment of Kurds (at [45]-[47] of the summary of his evidence at Appendix 1).

39. The respondent’s skeleton argument at [28] relies on what was said in MY (Country Guidance cases, no fresh evidence ) Eritrea [2005] UKAIT 00158, namely that “In a case depending…on the same or similar evidence, a party will not be permitted to challenge the country guidance findings except by the production of new evidence. Attempts to contest the findings in a CG case without such fresh evidence are not permissible.” However, apart from the fact that SSH and HR was not considering the same country guidance issue as arises in this case, the fact is that the appeal before us does not depend on the same or similar evidence.

40. Of course it is true that some evidence concerning the risk to those appellants as Kurdish returnees was considered but that evidence was nowhere near as extensive as the evidence before us and the UT did not purport to issue any guidance on the issue of Kurdish returnees.

41. We disagree with the proposition that SSH and HR should be the starting point for us in this appeal in the sense that we should somehow find that it is the foundation upon which our decision should be built. To do so would be to imply that that decision is authority on the issue of risk to Kurdish returnees as a distinct group, which it is not and does not purport to be.

(ii) The expert evidence-evaluation

42. We have no hesitation in accepting the expertise of both Anna Enayat and Professor Joffé whose knowledge and experience of Iran and the Middle East extends over many years, indeed decades. Their expertise has been recognised by courts and tribunals on numerous occasions.

43. To the extent that the respondent suggested that the weight to be attached to Professor Joffé’s evidence was diminished by reason of judicial criticism from 2004 and earlier, we find no merit in that suggestion. The circumstances and context were then completely different, quite apart from the fact that that criticism is now of some vintage.

44. That is not to say that we consider ourselves bound to accept every aspect of the experts’ evidence. Where we have not done so we explain why.

45. Ms Enayat’s evidence is that the CIG, which in part we have quoted above, presents a “brief snapshot” of the situation in the Kurdish areas of Iran between 2012 and early 2016. Her view is that developments since then have seriously increased tensions in the predominantly Kurdish western provinces in a manner which will mean that Kurds returned to Iran will now be subjected to heightened suspicion and scrutiny. Her oral and written evidence is that this is the result of the fighting in the Syrian war which had raised national consciousness amongst Kurds. Also relevant she said, was the resumption in 2016 of armed activities by Kurdish national parties who had repudiated violence and which were an offshoot of the PKK (Kurdistan Workers’ Party), being the first major resurgence since the 1990’s. In addition, Kurds in the abortive independence referendum in the KRI (Kurdistan Region of Iraq) mobilised the population in Kurdish cities of Iran. Lastly, the terrorist attack on the Iranian parliament in Tehran in July 2017 was relevant where the perpetrators were Islamist Kurds. The Iranian security services rounded up Kurds in the Kurdish areas. There was therefore heightened security activity.

46. Professor Joffé’s evidence was to like effect. However, he also cited as significant the new Political Crimes Law (“PCL”) of 2016. In his written answers to the respondent’s written questions he refers to the PCL as having come into force in June 2016. Citing an Amnesty International (“AI”) report dated 2016/2017 the PCL is described as a new law on Political Crimes which criminalised all expression deemed to be “against the management of the country and its political institutions and domestic and foreign policies” and made “with intent to reform the affairs of the country without intending to harm the basis of the establishment”. A US State Department report on Iran of 2017 is also quoted.

47. Professor Joffé’s evidence is that the burden is on the individual to show that they are innocent. He said that it was probably in terms of its implementation that the issue of the reverse burden of proof would be apparent. However, in our view there is force in the respondent’s submission that there is no evidential foundation for Professor Joffé’s view in terms of the reverse burden of proof. He was not able to give any examples of the PCL having been interpreted or implemented in that way and did not suggest that its terms, on their face, had that effect. Although he said that it had been commented upon by NGO’s and by the US State Department especially, no such commentaries were identified. The article from Legal Agenda entitled “Is Iran’s New Law on Political Crimes a Step Forward?” does not support Professor Joffé’s evidence on the issue.

48. We accept that as an expert Professor Joffé is entitled to give an opinion on the effect of the PCL based on his knowledge and experience. However, we are not satisfied that his opinion in this respect carries much weight in circumstances where the basis for his opinion has not been demonstrated.

49. Having said that, we do not consider that the burden of proof question in relation to the PCL is of much significance at all in relation to the country guidance question in issue or in relation to this appellant’s appeal in particular.

50. Of far greater importance is the consistent evidence of both experts, supported by sources and background evidence, in relation to the heightened tensions in Iran in security terms both generally and in relation to those of Kurdish ethnicity.

51. In TK (Tamils – LP updated) Sri Lanka CG [2009] UKAIT 00049 the Tribunal made a distinction between risk categories and risk factors. At [4] the distinction was explained thus:

“In country guidance cases the Tribunal has a dual function. As in every case, it must decide the appeal before it, but it also seeks to identify relevant risks that arise in relation to classes or groups of persons. It does this in two main ways: (i) by identifying one or more “risk categories” (usually when the evidence is sufficiently clear-cut to justify a finding that the generality of persons in a particular category are at risk); (ii) by delineating “risk factors”, i.e . factors of particular significance when assessing risk , a mode usually chosen when the evidence is less clear-cut. ”

52. At [122] of his report Professor Joffé states that:

“…any Kurd returned to Iran must anticipate the serious risk of official discrimination or persecution simply on the grounds of his membership of an ethnic group, quite apart from any specific threats he or she might face for illegal exit from Iran or because there are specific charges outstanding against her or him.”

And at [123]:

“…it seems to me that a person fleeing persecution as a result of both his ethnicity and the attitude of the Iranian authorities towards failed asylum-seekers, as stated in Kayhan on February 17 and April 26, 2011, might legitimately anticipate a risk to himself which would allow him to apply for asylum on those grounds alone.”

Lastly in this context at [124] Professor Joffé states that the extent of discrimination against Kurds shows that “such discrimination is so severe that it amounts to persecution”

53. In his oral evidence he maintained that there was a real risk of persecution for an individual simply on the basis of their being Kurdish, stating that that was his inference from the evidence that he had seen.

54. Professor Joffé then, asserts that Kurdish ethnicity alone would amount to a risk category (as the term is used in TK ).

55. However, that is not in fact the appellant’s case as advanced on his behalf. At [3] of the appellant’s skeleton argument it states that “it is not being suggested in the instant case that Kurdish ethnicity constitutes a risk category per se ”. There the appellant’s case is that for Iranian Kurds ethnicity is a risk factor which creates a risk of persecution when combined with other factors. The position on behalf of the appellant as expressed in closing written and oral submissions was to the same effect. Thus in the appellant’s written submissions at [14] it states that “[c]ontrary to the implication of the Respondent’s written submissions…it is not the appellant’s case that any failed Kurdish asylum seeker faces a real risk of persecution simply by virtue of being Kurdish”.

56. Ms Enayat’s evidence was not to the effect that Kurdish ethnicity alone creates a risk of persecution or that all failed asylum seekers of Kurdish ethnicity were at such risk. In oral evidence she said that she was not arguing that a Kurd, who was not perceived in some way to be politically active, would be arrested. She pointed out that she had repeatedly said in her report that targeting was not purely on the basis of Kurdish ethnicity.

57. In her report, in answer to the question of whether the Iranian government imputes an anti-government political view to a person on account of their Kurdish ethnicity alone she said that “The answer is, quite evidently, no”. However, she goes on to state that it is important to be wary of the sometimes repeated opinion that Kurds are at risk only if they engage in political activity. She then states that the COI [CIG] does not fall into that error in that it refers to a range of activists or perceived activists, including cultural activists, those who express peaceful dissent or so much as speak about Kurdish rights, could be at risk. Thus, she agrees with para 2.3.4 that:

“If the Iranian regime catches a perceived sympathizer carrying out an activity perceived to be against the government, the consequences for him and his family can be result (sic) in arbitrary arrest, detention and possible ill-treatment.”

58. The emphasis on perceived is that of Ms Enayat and she explains why, stating that most country information on Kurds indicates that they are at particular risk of imputed political opinion if for some reason they come to the attention of the authorities.

59. The appellant’s skeleton argument states at [99] that Professor Joffé accepts that Kurdish ethnicity does not create a risk of persecution per se. However, we do not think that that accurately captures his view in the light of what he says at [124] of his report which we refer to above, and in the light of his oral evidence to which we have also referred.

60. If Professor Joffé does take that view, we are not satisfied that the evidence supports a contention that Kurdish ethnicity alone creates a risk of persecution or Article 3 ill-treatment on return. That is not a view supported by the background evidence, it is inconsistent with Ms Enayat’s evidence and indeed we are not asked on behalf of the appellant so to conclude.

61. We note Professor Joffé’s evidence in his report at [113] that he is substantially in agreement with the conclusions in SSH and HR “if it were not for two further considerations”. He wonders whether the Tribunal in that case overlooked two general aspects of the “current situation” in Iran: the worsening security situation in parts of the country occupied predominantly by one of the many ethnic or religious minorities and the increased domestic tensions. He states that in his view the Tribunal “has under-estimated the potential difficulties connected with the acquisition of laissez-passer documentation.”

62. His report then expands on those issues, concluding that there is intensified repression of Kurds and that if a Kurdish returnee has given rise to suspicions of anti-regime behaviour, either abroad or in Iran before they left, “his prospects of avoiding persecution upon return will have been significantly diminished”. He goes on to state that he does not feel that the decision in SSH and HR has paid sufficient attention to those considerations which would now be intensified by Iranian Kurdish reaction to the independence referendum in Iraqi Kurdistan. He also suggests that those considerations have been neglected in the latest edition of the COI [CIG].

63. Those views led to Professor Joffé’s conclusions which we have set out at our [52]-[54] above and which we have rejected.

64. However, we have returned to Professor Joffé’s evidence on this in order to explain why, in so far as Professor Joffé suggests it, we reject the contention that SSH and HR is wrong in terms of its country guidance. In the first place, we do not consider that Professor Joffé’s reasons provide a sufficient basis for us to reconsider the guidance in SSH and HR . Secondly, that is not a position argued for on behalf of the appellant and was not the basis upon which the appeal before us was presented by either party.

65. Thus, in the appellant’s written submissions at [8] it states that the appellant does not seek to disturb the country guidance findings in SSH and HR and at [11] that it is the country guidance case for assessing asylum claims that rely upon the unparticularised fact of having claimed asylum abroad. In addition, we have already referred to the appellant’s suggestion that SSH and HR is the starting point for the assessment of the appellant’s claim, a suggestion which we have rejected for the reasons given. Lastly, at [12] of the written submissions it is expressly stated that the appellant is not seeking to go behind the country guidance in SSH and HR .

66. We are firm in concluding that the country guidance given in SSH and HR remains valid.

(iii) Returns

67. As regards returnees and what, if anything, can be deduced from the numbers of those returned, on behalf of the appellant it is observed in the skeleton argument that the figures for returns clearly show that some failed asylum seekers from Iran do go back. It is nevertheless said that the figures are unrevealing although certain trends can be observed it is suggested. The figures for returns referred to come from tables rt_01 and rt_05 at https://www.gov.uk/government/publications/immigration-statistics-july-to-september-2017 . The tables on the UK government website require the application of the filters in order to obtain the figures for Iran. We think that there are minor errors in the table in the appellant’s skeleton argument as compared to the government tables, namely for asylum claims from Iran in 2013 (2,410 not 2,417); 2016 (4,184 not 4,192) and total claims in 2016 (30,747 and not 30,603), although these are simple mistakes and not significant.

68. On behalf of the appellant it is said that from 2006 to 2014 the UK government’s figures reveal that claims for asylum in the UK by Iranian nationals ran at an annual average of 2,234, ranging from 1,834 to 2,659. It is said that since then there had been “a dramatic increase” in claims, from 3,242 claims in 2015 to 4,192 in 2016 (the correct figure is 4,184 we think).

69. However, we do not accept the implied suggestion that what is described as a dramatic increase in the number of claims from Iran equates, necessarily, to evidence that there are more individuals from Iran in need of international protection. There is no necessary correlation between the two. An increase in claims could be due to various factors, and without any speculation one could suggest, for example, that economic circumstances in Iran may be relevant, or a change in destination of choice, say from some other European country, or unknown factors in terms of the actions of people smugglers. In addition, what we say below about the lack of information about the particulars of those returned to Iran could be said to apply with equal force in terms of the basis upon which the claims for international protection were made by the ‘increased number’ of claimants. In other words, in the context of country guidance in relation to those of Kurdish ethnicity from Iran, the fact that it is not known how many of those applying for asylum were Kurdish means that little, if anything, of relevance can be deduced from the numbers in that context.

70. What can be seen is that 2016 saw the highest number of asylum claims from Iran since 2001 which appears from the government tables to be the date from when figures appear by country of origin. However, it is also the case that there has been a certain ebb and flow in the number of claims from Iran. Thus, purely by way of examples, in 2014 there were 2,000 Iranian claims but in 2006 there were 2,376. In 2010 there were 1,866 but in 2008 there were 2,270.

71. The appellant relies on the rate of voluntary returns of failed asylum seekers to Iran. It is pointed out that the government’s figures reveal that there has been a further sharp reduction since 2011 (from an already relatively low rate). It is suggested that “when considered on Sivakumaran and Karanakaran principles” the disproportionately high reluctance of Iran’s nationals to return after failing their asylum claims is a significant part of the factual matrix.

72. However, we do not consider that we are assisted much, if at all, by the evidence as to the numbers or proportion of voluntary returns to Iran. On behalf of the appellant the implication is, presumably, that a low and decreasing rate of voluntary returns is an indication of risk, or if not risk, then at least a subjective fear of return.

73. However, as in the case of the numbers of claims for asylum, we do not consider that the raw data on voluntary returns has much evidential value in terms of the issues to be decided in this appeal, either generally in terms of country guidance or specifically in relation to this appellant. Whilst we bear in mind the standard of proof in protection claims, one would need at least some information about the motivations of those not willing to return voluntarily before reaching any evidential conclusions. Motivations other than risk or fear could be, for example, economic considerations. In this respect we note that the Country Policy and Information note for Iran, version 4.0 dated December 2017 (“CPIN”) states at para 10.1.1 that:

“Iran faces a difficult economic situation, due to a combination of past economic mismanagement and international sanctions. The economy has been hit in recent years by high inflation, the high cost of Government subsidies, significant currency depreciation and an increase in the cost of food and imported goods.”

74. In relation to employment, para 10.2.1 states that officially unemployment stands at 10% although it is considerably higher in reality, with some estimates putting unemployment at 20% with informal estimates at 40%. It goes on to state that substantial unemployment exists, with young people and women particularly badly hit. At 10.2.2 one finds that:

“ The unemployment rate returned to a three-year high of 12.7 percent (or 3.3 million unemployed) in the second quarter of 2016 despite the high growth rate in this period”.

75. Other employment and economic difficulties are referred to in the report. We do not say that there are not some positive employment and economic factors and plainly an assessment of the economic and employment opportunities in Iran is beyond our scope. The point we wish to illustrate with, admittedly, a necessarily selective reference to that aspect of the background material, is that it may be that economic factors have a part to play in relation to any relative lack of voluntary returns.

77. The appellant, if not complains, then at least comments that the respondent “chooses” (skeleton argument [54]) not to record information about ethnicity of returnees in an easily accessible way and thus declines to disclose it. Any notion that the respondent has somehow contrived to conceal relevant information about the fate of failed asylum seekers of Kurdish ethnicity is rejected by the respondent; the information simply cannot be obtained save at disproportionate cost the respondent says.

78. We do not interpret the appellant’s case as suggesting any attempt to conceal information on the part of the respondent, only the contention that the information as to ethnicity of those from Iran making asylum claims (and no doubt returnees) ought to be information provided by the respondent. We do not consider that this is a matter upon which we should make comment in terms of what information is collected by the respondent in relation to asylum claimants and returnees, or in what form. Suffice to say that there is nothing to indicate any bad faith on the part of the respondent in this respect and the respondent has explained the reasons for not providing it.

79. What it does mean however, is simply that little, if anything, of evidential value can be deduced from the information as to numbers of asylum claimants from Iran or returnees. The evidence of claims and returns before us is, we conclude, merely part of the background to the appeal and we find that it does not assist us in our assessment of the issues because we simply do not know enough about the details of those individuals.

(iv) Conclusions

80. Although there was some evidence before us in relation to the potential risk to family members who themselves are at risk or who for some reason have come to the adverse attention of the authorities in Iran, that was not the focus of the arguments advanced by the parties and was not addressed in detail in the expert evidence. We do not therefore give guidance on this issue but simply note the background evidence, for example in the CIG at sections 3 and 11, which in part we have quoted above, as well as the expert evidence.

81. On behalf of the appellant it is suggested (as set out in written submissions) that guidance be given to the effect that a risk of persecution arises where an individual is involved in the making, re-posting or otherwise publicising critical, insulting satirical etc comments about Islam, Islamic religious figures, the Qur’an, Iran’s policies or regime members, online on social media networks whether in Iran or abroad.

82. However, we consider that such proposed guidance is way outside the scope of the case before us and in any event is far too widely drawn. Although there was evidence before us regarding the potential risk for those whose internet activity/social media use may attract the adverse attention of the authorities, that was not a matter which the parties or experts engaged with in relation to the giving of country guidance in terms, for example, of the ability of the Iranian state to monitor such activity. Indeed, in oral evidence Ms Enayat said that she had not been asked to deal with the question of social media in her instructions (although she had given evidence on the issue in AB and Others ). We also take the view that such a consideration is likely to require some technical evidence and such was not before us. Social media use is however, relevant to this particular appellant’s appeal and we consider it in that context.

84. It was also suggested on behalf of the appellant that a circumstance that will create a reasonable risk of persecution for Iranians of Kurdish ethnicity includes “[p]revious residence in the Kurdish regions of Iraq”. This is on the basis that although Iran is a major trading partner with the KRI and has cooperated with it in the fight against ISIS, the KRI contains a significant population of Kurdish refugees from Iran and the Kurdish partisan groups all keep bases and training camps there. Thus, it is suggested that any Iranian Kurd who has resided in the KRI and comes to the attention of the Iranian authorities is reasonably likely to face questioning in detention.

85. In his written submissions Mr Metcalfe accepted the evidence of Ms Enayat in terms of the appellant being likely to face additional questioning by reason of having lived in the KRI for so many years, although it was nevertheless argued that she did not say that he would therefore face a real risk of ill-treatment or persecution as a result. Ms Enayat said that the authorities are interested in the backgrounds of Iranians who had resided for a long time in Iraq and they would want to know where and what he was doing in Iraq and there would be an investigation. Professor Joffé gave similar evidence. He said that if the appellant said that he came from Iraq, the first thing is that it would mean that he had left Iran illegally. The second question would be as to why he went to Iraq. It would be pre-supposed that he would be connected with the opposition movements which are all centred in Iraq.

86. We consider that the expert evidence on this discrete issue, seen in the context of the background evidence overall, is a sufficient basis from which to conclude that a period of residence in the KRI by a Kurdish returnee is reasonably likely to result in additional questioning by the authorities on return. However, this is a factor that will be highly fact-specific and the degree of interest that such residence will excite will depend, non-exhaustively, on matters such as the length of residence in the KRI, what the person concerned was doing there and why they left.

87. Above we have referred to SSH and HR . Ultimately, neither party contended that that decision should no longer be followed in terms of the country guidance for which it was reported. We have given our reasons for not accepting Professor Joffé’s evidence in so far as he suggested that SSH and HR should no longer be followed. It remains valid country guidance.

88. It is common ground that Kurds in Iran face discrimination. However, the evidence does not support a contention that that discrimination is at such a level as to amount to persecution.

89. On behalf of the respondent objection was taken to some of the evidence of Professor Joffé and Ms Enayat as to the individual examples of human rights abuses against Kurds (and non-Kurds) on the basis that they either pre-dated SSH and HR or were in fact considered in that case. However, the respondent’s position is inconsistent, on the one hand decrying a lack of recent examples of individual cases of mistreatment of Kurds yet also stating in submissions that it was accepted that conditions have deteriorated.

90. It is common ground that Kurds involved in Kurdish political groups are at risk of arrest, prolonged detention and physical abuse by the Iranian authorities. Kurds expressing peaceful dissent or who speak out about Kurdish rights also face a real risk of persecution.

91. Those activities that can be perceived to be political include social welfare and charitable activities on behalf of Kurds. Indeed, involvement with any organised activity on behalf of or in support of Kurds can be perceived as political and thus involve a risk of adverse attention by the Iranian authorities with the consequent risk of persecution. The threshold for consideration by the Iranian authorities of activities being political is a low one.

92. What emerges from the background and expert evidence is an extreme sensitivity on the part of the Iranian state to activities that are, or are perceived to be, anti-regime. Ms Enayat’s evidence was that even being in possession of a Kurdish flag or a leaflet would put someone in trouble with the authorities. Although there was criticism of her evidence on behalf of the respondent in that respect (a single leaflet), her evidence chimes with what appears at para 11.1.2 of the CIG (on Kurds and Kurdish political groups) in the quotation from a Landinfo report of February 2013:

“The Landinfo report further noted that; ‘if an individual were caught with a leaflet, he would most likely be arrested and tortured as well as forced to confess to being a member of whatever group could have been behind such a publication. He or she would go through a five minute trial and the outcome such a trial could vary from many years imprisonment to a mild sentence. It is impossible to say’.”

93. This example of low level activity having the potential to create a risk of ill-treatment is nothing new therefore. It can hardly be said that the human rights situation in Iran in general has improved in recent years and, as we have seen, recent events have created an environment of greater suspicion of Kurds and Kurdish activities. In addition, the example of the mere carrying of a leaflet or Kurdish flag is entirely consistent with the background material put before us, for example “Even those who express peaceful dissent or who speak out about Kurdish rights”, “there is no tolerance on the Iranian regime’s side for any kind of activities with connection to the Kurdish political parties and any affiliation with one of these parties would be reason for arrest”.

94. The evidence before us makes it clear that since 2016 the Iranian authorities have become increasingly suspicious of and sensitive to Kurdish political activity. Those of Kurdish ethnicity are thus regarded with even greater suspicion and are reasonably likely to be subjected to heightened scrutiny. We accept what Ms Enayat says at [53] of her report, namely that “it is quite evident that the increased militancy of the Kurdish parties coupled with the IS attack of July 2017 will mean greatly enhanced suspicions of any Kurdish returnees”. Professor Joffé’s evidence was to like effect

95. The evidence also indicates that the Iranian authorities demonstrate what could be described as a ‘hair-trigger’ approach to those suspected of or perceived to be involved in Kurdish political activities or support for Kurdish rights. By ‘hair-trigger’ we mean that the threshold for suspicion is low and the reaction of the authorities is reasonably likely to be extreme.

96. It is true, as argued by the respondent, that there is a lack of evidence of problems from the authorities faced by Kurdish returnees, but that must be seen in the context of the relatively low numbers of those returning. In addition, as already explored, nothing is known to us about the ethnicity of those returned, or indeed of the nature of any asylum claim made.

97. What is not disputed is that a returnee without a passport is likely to be questioned on return. Such is the expert evidence before us and such is recognised in current country guidance, for example, SSH and HR . It is not within the scope of this decision to revisit existing country guidance in terms of the procedures for obtaining a laissez-passer or in relation to questioning on return, notwithstanding that both parties, to a greater or lesser extent, sought to explore those issues.

COUNTRY GUIDANCE

98. Drawing on all the expert and background evidence, and taking into account the submissions of the parties, we come to the following conclusions:

(1) SSH and HR (illegal exit: failed asylum seeker) Iran (CG) [2016] UKUT 308 (IAC) remains valid country guidance in terms of the country guidance offered in the headnote. For the avoidance of doubt, that decision is not authority for any proposition in relation to the risk on return for refused Kurdish asylum-seekers on account of their Kurdish ethnicity alone.

(9) Even ‘low-level’ political activity, or activity that is perceived to be political, such as, by way of example only, mere possession of leaflets espousing or supporting Kurdish rights, if discovered, involves the same risk of persecution or Article 3 ill-treatment. Each case however, depends on its own facts and an assessment will need to be made as to the nature of the material possessed and how it would be likely to be viewed by the Iranian authorities in the context of the foregoing guidance.

THIS APPELLANT-ASSESSMENT AND CONCLUSIONS

99. In applying the above guidance and existing country guidance to the facts of this appellant’s appeal, we remind ourselves of the statement of agreed facts which we have set out in full at [4]. Judge Storey referred to the FtJ having found that the core of the appellant’s account was credible. We think however, that we ought to make further reference to the specific credibility findings made by the FtJ.

100. At [13] the FtJ found that the appellant had at all times been consistent in his account. In that same paragraph he considered the respondent’s challenges to the appellant’s account of his parents’ support for the Peshmerga. In that context the FtJ said the following:

“The Respondent accepted his claim to be of Iranian nationality but felt that there were challenges to credibility because of his lack of knowledge of his parents’ activities. It was felt that it was not credible, for instance, that the Appellant had not known about his parents’ support for peshmergas prior to his return to Iran in 2015. It was not thought that it was credible that the Appellant’s uncle would not know of their actions. It is unclear to me how the Respondent reached those conclusions when the uncle was not available to clarify what he did or did not know and the Appellant was only six years of age when he was moved from Iran into Iraq. It is difficult to see why the Appellant and his uncle should have looked for opportunities to discuss his parents’ activities in detail. The Appellant did say in his asylum interview that his parents had provided support for peshmergas in matters such as food (asylum interview record question 39).”

101. At [14], in relation to the disappearance of the appellant’s parents the FtJ said this:

“The Appellant in his testimony accepted that he did not know what had happened to his parents, simply that they had been taken away and he had not heard of them since. Again, as he was only six years of age, his level of personal knowledge and understanding will be extremely limited.”

102. To complete the picture, at [15] the FtJ said that he did not accept the appellant’s evidence “about the reasons why his parents disappeared” because he had no personal knowledge of the details and the information given by his uncle was very vague. At [17] he found that the evidence did not show any real likelihood that the appellant would be regarded as a person of adverse interest “because of his parents’ activities now more than 23 years ago”.

103. It is at least implicit from the FtJ’s decision that he found that the appellant’s parents had been politically active in terms of providing support for Kurdish political groups referred to as “pro-Kurdish separatist groups” in the statement of agreed facts.

104. Finally, it is important to note that the FtJ said at [17] that he accepted the appellant’s evidence “that he has never had any involvement in political activities even though he is, broadly, a supporter of Kurdish rights”.

105. In the light of the FtJ’s acceptance of the appellant’s account of his parents having been involved in providing support for pro-Kurdish groups, even if limited to providing support for the Peshmerga in terms of food, we consider that the disagreement between the parties in relation to how it came to be that the appellant’s family home was destroyed/burnt down in 1994 to be a rather sterile debate. The respondent suggests that this may have been the work of a Kurdish group but Ms Enayat emphatically rejected that suggestion. Put simply, she said that such activity was redolent of the methods of the Iranian security forces at that time and not of Kurdish groups.

106. It is a preserved finding that the appellant’s parents did disappear, i.e. were “taken away” in 1994. It is also a finding that they provided support for pro-Kurdish groups. In relation to Ms Enayat’s evidence as to the destruction of the family home, we consider that it does not ‘close the gap’, as it were, in terms of the evidence that was before the FtJ in relation to why the house was destroyed or why his parents disappeared. If the only two possibilities for the cause of the destruction of the appellant’s home were actions by the Iranian security forces or a Kurdish group we would choose the former. But that is not a sufficient basis from which to conclude that it was the result of activity by Iranian security forces. Likewise, we do not consider that there is a sufficient evidential basis from which to conclude that Iranian security forces caused his parents to ‘disappear’.

107. In the context of the findings that are preserved and in the light of what we say below about the other aspects of the appellant’s claim, we do not consider that the evidential gap in those respects is significant to our determination of his appeal.

108. We next consider the appellant’s social media profile. There is additional evidence before us in that respect that was not before the FtJ. We permitted further evidence on that issue to be adduced (see [9]-[17] above).

109. We repeat what we said at [9] above. The copy documents are contained in a bundle of 59 pages. They are posts under the appellant’s name and are accompanied by translations of posts between 24 December 2016 and 16 January 2017. The date range for the posts is 24 December 2016 to 16 January 2017 (pre-FtT hearing) and 23 February 2017 to 23 October 2017 (post-FtT hearing), the latter not being accompanied by translations.

110. We have not been provided with an agreed summary of the content of the Facebook posts but there are translations of a portion of them. For reasons which will become apparent, not every post needs a translation. We refer to only a sample of the translations.

111. In general, as revealed in the posts that have been translated, they express support for the Kurdish political cause and express opposition to the Iranian regime. They consist of shared posts from individuals and from, for example, the Democratic Party of Iranian Kurdistan (PDKI) Scotland and one from Denmark (but the latter was not able to be translated).

112. The following is a sample of the posts (in the order in which they appear in the bundle):

· A shared post of a video, dated 16 January 2017, says “If you consider yourself a Kurd please shared it (sic) to be watched by as many people as possible”. What is on the video is not stated.

· A shared “Democratic Rebels’ video dated 16 January 2017 says “The Peshmerga of Kurdistan Democratic Party destroyed the Iranian forces ambush in Sardasht”.

· A shared post, dated 15 January 2017, from the PDKI (Scotland), with a photograph, refers to the 71 ^stanniversary of the establishment of “Kurdistan Republic of Mahabad” going on to refer to the Republic of Kurdistan as the first Kurdish national state.

· A shared post, dated 11 January 2017 refers to the burial ceremony of “the martyrs of the Kurdistan Freedom Party (PAK)”.

· A shared PDKI (Scotland) post, dated 10 January 2017 refers to the death of Ali Akbar Rafsanjani [former President of Iran] and includes the words “The father of terrorists has died” with his photograph and a cross through it.

· Another shared post from the PDKI (Scotland), dated 4 January 2017 says “The Iranian regime of execution is the biggest terrorists in the world”.

· A similar shared post, dated 4 January 2017 says “Happy Kurdistan Flag Day and Peshmerga’s Day”.

· A shared post from an individual dated 27 December 2016 has, amongst others, the words “Down with the Islamic Republic of Iran” and “We must struggle to end the oppression” accompanied by a photograph of Ayatollah Khomeini with superimposed images of men hung by the neck on ropes.

· A photograph in a shared post, dated 8 January 2017, depicts Ayatollah Khomeini on all fours being kicked from behind by a woman.

· A photograph in a shared post dated February 2017 (and 1 March 2017) depicts Ayatollah Khomeini with an altered facial impression. The photograph is not clear enough in the photocopy to be more specific. In the same shared post Ayatollah Khomeini has a toilet pan superimposed over his body.

· A photograph in a (possibly original) post, with no discernible date, superimposes Ayatollah Khomeini’s face over the body of a dog on a lead.

· A photograph in a (possibly original) post, dated June 2017 shows Ayatollah Khomeini’s face with male genitalia superimposed over his nose.

113. Mr Metcalfe submitted that there is insufficient evidence that the Iranian authorities would necessarily be aware of that material and that the evidence did not establish that the Iranian authorities routinely inspect the internet profiles of failed asylum seekers.

114. However, we noted at [97] above that it is not disputed that a returnee without a passport is likely to be questioned on return, confirmed in the expert evidence before us and recognised in existing current country guidance, for example, SSH and HR . Ms Enayat’s evidence was that it is part of the routine process to look at an internet profile, Facebook and emails of a returnee. A person would be asked whether they had a Facebook page and that would be checked. When the person returns they will be asked to log onto their Facebook and email accounts. That is also the effect of her evidence given in AB and Others which was accepted by the Tribunal in that case (see [457]).

115. Mr Metcalfe accepted that the material posted by the appellant on Facebook, if it became known to the authorities, would expose him to prosecution with a risk of imprisonment and that this would result in a real risk of ill-treatment. It was also accepted that the appellant’s Facebook page is currently visible to the public at large.

116. We are satisfied that the content of the appellant’s Facebook page would become known to the authorities on return as part of the process of investigation of his background. That is the effect of the expert and background evidence before us. It is then, no step at all to the conclusion that this would involve a real risk of persecution and Article 3 ill-treatment in his case, by reason of detention and ill-treatment and likely prosecution. His Facebook posts would reveal not only his support for Kurdish rights but also his having insulted the Iranian regime and leading figures in it. This is reasonably likely to be regarded not only as having ‘crossed the line’ in terms of political views or activity, but also in terms of religious dissent.

117. There are in fact a cluster of factors that would lead to significant adverse reaction to this appellant by the Iranian authorities, quite apart from the Facebook material which would be sufficient on its own. That material in its political content of support for Kurdish rights would dovetail in the minds of those questioning the appellant with what he is reasonably likely to reveal under questioning about his parents’ support for Kurdish groups, albeit many years ago and his own broad support for Kurdish rights. Likewise the fact of the appellant having lived in the KRI for many years.

118. In terms of what the appellant would be expected to reveal under questioning, Mr Metcalfe relied on an unreported decision of the UT in Secretary of State for the Home Department v MH (PA/02219/2017), 7 December 2017, where at [41] it was said that what an individual would say, if questioned, “is a factual finding which must be made on the basis of all the evidence”. That decision is relied on in support of the proposition that there was no evidence from this appellant to show that he would disclose his political opinions and the FtT did not find a risk in that respect.

119. Ms Naik raised a number of objections to this aspect of the respondent’s case as can be seen from our summary of the parties’ submissions. It is sufficient for us to state that we do not consider that the respondent is entitled to rely on that unreported decision in circumstances where the Senior President’s Practice Directions at paragraph 11 in relation to the citation of unreported decisions has not been complied with. For our purposes the decision in RT (Zimbabwe) v Secretary of State for the Home Department [2012] UKSC 38 requires no clarification.

120. In any event, the resolution of this appellant’s appeal does not depend on what he would say if asked about his political opinions when questioned, given what would in any event be discovered. If we had to answer the question as to what he would say, we would simply conclude that, following RT (Zimbabwe) the appellant could not be expected to lie about his political belief of support for Kurdish rights, about which he is reasonably likely to be directly questioned given his particular circumstances.

121. In the light of our assessment of what is reasonably likely to befall the appellant when questioned on return, we are satisfied that he has established to the required lower standard that he has a well-founded fear of persecution for a Convention reason, namely his actual and imputed political opinion. Thus we allow his appeal on asylum grounds and under Article 3 of the ECHR.

Decision

122. The decision of the First-tier Tribunal involved the making of an error on a point of law. Its decision having been set aside, we re-make the decision by allowing the appeal on asylum and human rights grounds with reference to Article 3 of the ECHR.

Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Upper Tribunal Judge Kopieczek

ANNEX A

ERROR OF LAW DECISION

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: PA/14213/2016

THE IMMIGRATION ACTS

Heard at Field House

Decision & Reasons Promulgated

On 11 May 2017

Before

DR H H STOREY

JUDGE OF THE UPPER TRIBUNAL

Between

Mr H B

(ANONYMITY DIRECTION MADE)

Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr R Spurling, Counsel, instructed by Barnes Harrild & Dyer Solicitors

For the Respondent: Mr N Bramble, Home Office Presenting Officer

ERROR OF LAW DECISION AND DIRECTIONS

1. The appellant is a national of Iran. On 1 February 2017 First-tier Tribunal Judge (FtTJ) Nicholls dismissed his appeal. The judge did so despite finding that the appellant had given at core credible account of his experiences in Iran (and Iraq). At paragraph 17 the judge stated:

“17. Although I accept the Appellant’s evidence of the course of his claim, I find that that evidence does not show any real likelihood that this Appellant would be regarded as a person of adverse interest either because of his parents’ activities now more than 23 years ago or because of any of the Appellant’s own actions more recently. I accept his evidence that he has never had any involvement in political activities even though he is, broadly, a supporter of Kurdish rights. I find that if he is returned to Iran the Appellant would simply be identified as a person who left the country illegally and, probably, was a failed asylum seeker. The key question in this appeal is whether those two factors by themselves are sufficient to demonstrate a well-founded fear of persecution.”

2. The judge then addressed the appellant’s attempt to rely on two expert reports from Professor Joffé:

“18. The Appellant has submitted the two expert reports from Professor Joffé, in the second of which the professor takes issue with the conclusions of the Upper Tribunal in SSH and HR , arguing that they reached the wrong conclusion about the risks faced by failed asylum seekers, particularly those of Kurdish ethnicity. In his skeleton argument and closing submissions counsel for the Appellant argued that the two conclusions reached in SSH and HR did not go so far as to assess the position of Kurdish failed asylum seekers and that it was open to me to reach conclusions on the basis of the evidence without needing to find grounds to reject the conclusions in the country guidance case. I do not accept that submission.”

3. The judge went on to find that the two appellants considered in SSH and HR (illegal exit: failed asylum seeker) Iran CG [2016] UKUT 308 (IAC) were in the same position as the appellant and observed that at paragraph 34 of SSH the UT had concluded that “the evidence does not show risk of ill-treatment to such returnees, though we accept it might be an exacerbating factor for a returnee otherwise of interest”. At paragraphs 20 and 21 the judge concluded:

“20. I have carefully read both of Professor Joffé’s reports and I note his disagreements both with the conclusions reached by the Upper Tribunal and his evidence that the position of Kurds in Iran has deteriorated since the evidence in that decision was heard. However, I am required to follow country guidance cases unless there is clear evidence that the conclusions are out of date. Many of the factors mentioned by Professor Joffé are discussed in SSH and HR , such as the procedures for obtaining a laisser-passer and the views of a retired Iranian judge. I am not satisfied, therefore, that there is sufficient new evidence which was not considered by the Upper Tribunal which requires me to depart from the country guidance case.

21. I find that this Appellant has shown that he is of Kurdish ethnicity, that he illegally exited Iran and that he would return as a failed asylum seeker. I find that he falls squarely within the facts of those considered in SSH and HR and that he has not shown that there are any extra or additional risk factors which would identify him as a person of adverse interest to the Iranian authorities. I find that the Appellant has not established a well-founded fear of persecution and has not shown an entitlement to protection in the UK.”

4. The appellant’s principal grounds of appeal as amplified by Mr Spurling before me were that the judge failed to provide any satisfactory reasons why he found at paragraph 20 that there was insufficient new evidence that was not considered in SSH . The grounds highlighted that Professor Joffé’s reports concluded that “being both a Kurd and a failed asylum seeker does imply significant risk of persecution” and that the Tribunal in SSH had not dealt properly with the difficulties facing persons leaving Iran illegally of obtaining a laissez-passer document.

5. I am grateful to both representatives for their helpful submissions.

6. I am persuaded that the FtTJ materially erred in law. It is clear from the judge’s reasoning that he considered that the appellant could not succeed because the issue of whether he was at risk (because of his Kurdish ethnicity combined with his being someone who left illegally and would be perceived as a failed asylum seeker) had been ruled on by the UT in the country guidance case of SSH . However, whilst it is true that the UT in SSH did reach conclusions on the issue of Kurdish ethnicity as a risk factor, that issue was not one of the identified country guidance issues in the case and as such fell outside the scope of Practice Direction 12.2. It cannot be excluded that had the judge correctly directed himself regarding the scope of the country guidance in SSH he would have come to a different conclusion.

7. By the same token, the judge cannot be criticised for relying on the findings reached by the UT in SSH on the laissez-passer issue because that was an issue specifically identified by the UT in that case as a country guidance issue: see paragraph 33(a).

8. For the above reasons I conclude that the FtTJ materially erred in law and his decision is set aside.

9. I discussed with the parties how they thought I should dispose of the appeal on the hypothesis that I did set aside the decision of the FtT. I also raised with them the matter of whether the case was potentially suitable for listing together with other cases in the context of a new country guidance on Iran. Mr Spurling said that the appellant was publicly funded and confirmed immediately after the hearing that the appellant and his instructing solicitors would have no objection to the appellant’s case being joined with other cases being case managed for a new country guidance hearing. Mr Bramble said it was a matter for the UT but if I decided to set aside the decision of the FtTJ the appellant’s case might be a suitable one to be added to the country guidance proceedings.

10. I have concluded that I am not in a position to re-make the decision in this case as it requires a further hearing. Both parties have indicated that they consider that the FtTJ’s primary finding of fact about the appellant’s adverse experience should be preserved. I concur. The case is one that can best be dealt with by being retained in the UT.

11. Bearing in mind the above, the appellant’s case will be set down for a further hearing. Whether or not it will be joined with other cases being case managed for a new country guidance case will be a matter for the Upper Tribunal to decide. If it does so decide, it would be with a view to the issue of Kurdish ethnicity as a risk factor being identified as one of the specific country guidance issues. If the parties receive listing of the appeal without any reference to country guidance they can assume the matter of it being added to country guidance was considered but rejected by the Upper Tribunal.

12. For the above reasons:

The FtTJ materially erred in law and his decision is set aside.

The case is to be listed for a further hearing in the Upper Tribunal.

Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Signed Date: 26 May 2017

Dr H H Storey

udge of the Upper Tribunal

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You are here: BAILII >> Databases >> Upper Tribunal (Immigration and Asylum Chamber) >> HB (Kurds) Iran (illegal exit: failed asylum seeker) CG [2018] UKUT 430 (IAC) (12 December 2018) URL: http://www.bailii.org/uk/cases/UKUT/IAC/2018/430.html Cite as: [2018] UKUT 430 (IAC)

Upper Tribunal (Immigration and Asylum Chamber)