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Upper Tribunal Ruling on Failed Asylum Seekers from Iran

Posted by Gunes Saybak on October 07, 2016

Upper Tribunal Ruling on Failed Asylum Seekers from Iran

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

This Country Guidance case was held in the Upper Tribunal of the Immigration and Asylum Chamber (“UT”). Country Guidance cases are authoritative in any subsequent appeal, so far as that appeal:

  1. relates to the country guidance issue in question
  2. depends upon the same or similar evidence

Brief facts and chronology

Both Appellants were failed asylum seekers from Iran and were of Kurdish ethnicity. SSH’s claim for asylum was on the basis that he would suffer ill treatment at the hands of the Iranian authorities becasue if returned there would be portrayed as a member of the PJAK (Party for a Free Life in Kurdistan) and for having held weapons in his house . The appeal before First-tier Tribunal (“FTT”) had concluded that his account was fabricated and rejected it in its entirety.

HR’s claim for asylum was on the basis that he would be at risk on return having actively supported the Kurdish cause and distributed books and leaflets to Kurds. He became concerned of his own safety when his friend (who conducted similar activities) was detained by Iranian authorities. The FTT accepted his political views as credible but was not satisfied of his membership to any particular political cause due to lack of evidence. It was held that he was unlikely to be identified by reference to his activity posted online.Country expert, Dr. Kakhki, assisted the UT with an expert report and gave oral evidence.

Question of Law

The questions of law before the court related to the issue of risk of harm to failed asylum seekers being returned to Iran as a result of:

  1. being undocumented, failed asylum seekers
  2. having exited Iran without permission to do so
  3. the likelihood of interrogation and detention

Decision of the Court

i. Undocumented, Failed Asylum Seekers

Dr Kakhki confirmed, in his report, that to enter Iran, a national was required to be in possession of a passport, a travel document or a “barge obour” which is equivalent to a laissez passer.

To obtain a laissez passer, one would have to complete an application form and submit original photographic proof of identity (which could be in the form of a birth certificate and/or national identity card). Also required was confirmation of a booking of a ticket showing a date of return to Iran and a letter from the Home Office explaining the person’s status in the UK (which necessarily entailed alerting the Iranian authorities to the fact that a person was a failed asylum seeker rather than someone with no valid leave to remain in the UK).

During the course of the preparation of his report, the Iranian Embassy had informed Dr. Kakhki that an Applicant must first prove that they are an Iranian national through evidence and not just verbal confirmation. An Applicant who did not possess a passport, and therefore could not demonstrate whether they left Iran legally, would be required to prove whether they had done so or not. Dr. Kakhki’s report further indicated that when an application for a laissez passer was made, the Iranian Embassy would screen the individual with respect to the nature of activities the Applicant had been involved in whilst outside of Iran. Although, the outcome of such checks would not lead to the refusal of the application for a  laissez passer, it would be forwarded on to the Iranian authorities.

The UT found that the issuing of the travel document would not mean that one would not face problems with the Iranian authorities on return. However, there would be no reason why a laissez passer would not be granted on application by an undocumented national (provided they could prove their nationality), who had left Iran illegally and was a failed asylum seeker.

ii. Exit from Iran without permission

Dr. Kakhki’s report, for SH’s case, indicated that there was a correlation between a person leaving Iran illegally and seeking asylum abroad. He stated that being accused of both would exacerbate the level of punishment the person may face on return to Iran.  The former would be a violation of Iran’s exit regulation and the latter would risk a charge under Article 500 of Book 5 of the Islamic Penal Code which penalises anyone who “undertakes any form of propaganda against the state”. He submitted that the mere false suggestion that a person had been prosecuted and at risk of persecution by the Iranian authorities would amount to propaganda against the state.

The UT accepted there was a low threshold by the Iranian authorities for tolerating individuals seen as acting against the national security. However, if it were the case that an individual acting against national security entailed those who had made false asylum claims abroad, details of such persecutions would have emerged taking into account the number of persons returned from the UK.

The UT found that there was no indication that the state suppressed the Iranian media and/or legal profession to prevent such information emerging. Further the UT took the view one might expect the Iranian authorities themselves to publish such information as a deterrent.

Illegal exits were not found to be routinely prosecuted and when an individual was charged as such, the punishment would be a fine. Further, the UT was skeptical about the existence of a real risk of prosecution under Article 500 on the basis of having made an asylum claim which was found to be false.

Further, although it was agreed that being of Kurdish ethnicity was a relevant factor to how the Iranian authorities would such a returnee there had been no submission as to Appellants risk on return on the sole basis of being Kurdish.

iii. Interrogation and Questioning On Return To Iran

The UT accepted that although person returnedwith a laissez passer would be questioned  this did not demonstrate, that a failed asylum seeker from Iran who had exited illegally would be subject to a period of detention or questioning which would culminate in a breach of Article 3. The evidence merely demonstrated that if there were any particular concerns arising from previous activities in Iran, the UK or any country that they are being returned from, an individual would be subjected to further questioning, detention and potential ill-treatment by the Iranian authorities. Dr. Kakhki’s report asserted that where a person cooperated and accepted that they left Iran illegally and claimed asylum abroad there was unlikely to be ill-treatment.

In light of the above, the UT concluded, “a person with no history other than that of being a failed asylum seeker who had exited illegally and who could be expected to tell the truth when questioned would not face a real risk of ill-treatment during the period of questioning at the airport”.

Conclusion

In light of the above the UT concluded that the Appellants failed to demonstrate a real risk on return to Iran on the basis that they would be questioned at the airport or convicted of illegally exiting Iran. The appeals were therefore dismissed.