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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-002177
	First-tier Tribunal No: PA/56825/2023
	IA/00069/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

25th February 2025

 

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE HOBBS

 

 

Between

 

KI

ANONYMITY ORDER MADE

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the appellant: Mr. A. Burns, Counsel instructed by Latta & Co Solicitors

For the respondent: Ms. Simbi, Senior Home Office Presenting Officer

 

 

Heard at Field House on 24 February 2025

 

Order Regarding Anonymity

 

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant and/or any member of his family is granted anonymity.

 

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant and/or any member of his family . Failure to comply with this order could amount to a contempt of court .

DECISION AND REASONS

1.               This is an appeal by the appellant against a decision of First-tier Tribunal Judge Farrelly, (the "Judge"), dated 11 April 2024, in which he dismissed the appellant's appeal against the respondent's decision to refuse his protection claim. KI is a national of Iran who claimed asylum on the basis of his imputed political opinion and his ethnicity. KI is of Kurdish ethnicity and worked as a kolbar in Iran. He was a minor when he arrived in the United Kingdom.

2.               Permission to appeal was granted by First-tier Tribunal Adio in a decision dated 14 May 2024 as follows:

"1. The Applicant seeks permission to appeal in time against the decision of the First-tier Tribunal (Judge Farrelly) who in a decision promulgated on 11th April 2024 dismissed the Applicant's appeal on asylum, humanitarian protection and human rights grounds. The grounds assert that the judge failed to follow country guidance case law, in particular in view of the finding made at paragraph 15 of the judge's determination where the judge found as follows, amongst other findings. "The Respondent has accepted that the Applicant worked as a kolbar. Most of the country information indicates that this is something which has come on in border areas, with individuals transporting illicit goods into Iran. They do not do so of any political motivation but to make a living. The indications are that whilst this is illegal the Iranian authorities are aware of it. The practice in itself does not carry any political connotations. I acknowledge that the Iranian authorities can resort to deadly force but the evidence does not suggest this is the norm."

2. The Applicant's representative refers to the accepted evidence as cited at paragraph 97 of Annex B to the country guidance case HB (Kurds) Iran CG [2018] UKUT 430 (IAC). The accepted evidence of Ms Enayat in the country guidance case is as follows. "In relation to smugglers, it is not simply that there is increased scrutiny of them because they are smuggling but because of the political implications. There is considerable traffic across the border on a daily basis. It is true that the authorities are properly concerned about smuggling per se. However, so far as politics is concerned, it would probably be assumed that they would be involved in that as well."

3. It is arguable that the judge erred in law by failing to follow the country guidance case in relation to the political connotations involved in being a kolbar. Furthermore, the judge rejected the reasons given by the Respondent for doubting the Applicant's credibility in certain areas. There is an arguable error of law that has been identified which merits further consideration."

3.               There was no Rule 24 response.

The hearing

4.               The hearing took place remotely. Although I had expected to be present at Field House, I was prevented from doing so by transport problems. It had always been intended that the parties would attend remotely.

5.               KI was present with Ms. Anderson to support him. I heard oral submissions from both representatives, following which I stated that I found the decision involved the making of material errors of law. I set the decision aside and remitted it to the First-tier Tribunal to be reheard. My full reasons are set out below.

Error of law

6.               Ground 1 asserts that the Judge has failed to apply the relevant country guidance of HB (Kurds) Iran CG [2018] UKUT 430 (IAC) by making distinct findings that the appellant would not face persecution based on his Kurdish ethnicity alone, his work as a kolbar alone, or his illegal exit from Iran. It was submitted that he had failed to make a finding as to whether these risk factors "together" would create a risk on return with reference to [98] of HB. Further it was submitted that he had erred in finding that the practice of being a kolbar did not carry any political connotations with reference to [42] to [44] of HB, and [97] of Annex B to HB.

7.               I find that the Judge has not carried out an holistic assessment of the risk on return to the appellant. At [17] he states:

"The refusal letter considers whether worked as a Kolbar could be considered as membership of a particular social group or whether a political opinion could be imputed to them. Reference is made to the CPIN at paragraph 2.3.2 which concluded this was not the case. I would agree was this conclusion. I do not find this activity would give the individual a distinct identity necessary to be considered part of a social group. The appellant was also doing this activity for money and did not know what he was carrying so I cannot see, without more, any political opinion being imputed by this. Kurds do face discrimination by the regime. The country guidance decision of HB Kurds Iran [2018] UKUT 430 found that they were not at risk of persecution on the basis of ethnicity alone."

8.               He has found that the appellant is not a member of a particular social group on account of his activity as a kolbar. He has further found that no political opinion can be imputed on account of his activity as a kolbar. Paragraph [97] of Annex B to HB states:

"In relation to smugglers, it is not simply that there is increased scrutiny of them because they are smuggling but because of the political implications. There is considerable traffic across the border on a daily basis. It is true that the authorities are probably concerned about smuggling per se. However, so far as politics is concerned, it would probably be assumed that they would be involved in that as well."

9.               The Judge's finding that no political opinion can be imputed on account of the appellant's activity as a kolbar runs counter to this. He has found that the appellant is not at risk on account of being a kolbar. Further at [17] he has found that the appellant is not at risk on account of his ethnicity "alone". At [18] he considers the appellant leaving Iran illegally does not "in itself" put him at risk.

10.           The headnote to HB states at [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.

11.           The factors listed include at [9] " '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." Given that it was accepted in HB that being a kolbar imputed political opinion, this is relevant factor. Further at [10] of the headnote it states:

" 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."

12.           The Judge has failed to follow the country guidance and consider the appellant's circumstances in the round. This is especially the case given the heightened risk to those of Kurdish ethnicity, and the hair-trigger approach of the Iranian authorities. I find that this is a material error of law.

13.           Ground 3 relates to ground 1 insofar as it is connected to the appellant's account and the risks arising as a result. It is submitted that the Judge has failed to provide sufficient reasoning for his findings with reference to [21] and [22] of the decision. At [22] the Judge states:

"I do not find he has established that his friend was caught and subsequently executed. I find he has not established the Iranian authorities have been pursuing him and I do not accept his claim they have visited his home and detained his mother and sister. He talked about photographs of his home but is difficult to see what probative value these would have had as I most likely could not identify his home. In any event he has failed to produce these and I find his explanation for not doing so weak. I find it improbable that the appellant has not had contact with his family. His mother was involved in the arrangements for him to leave. He says she and his sister have been detained. However, I can see little advantage to the Iranian authorities in continuing to detain them on a long-term basis. The appellant clearly has friends here who in turn have contacts with his home area and could have advised him more. He has chosen not to resort to the Red Cross tracing service but in any event I do not believe this will be necessary."

14.           The Judge has rejected the appellant's account of the problems encountered by his friend and family in Iran. However, at [21] he states:

"The respondent has raised credibility points, including questioning the likelihood he could have remained at home several days or to have been able to leave the country if he were wanted. I do not see much strength in his points. He may have been able to remain at home for a short period. There is also a lengthy land border which he indicates he crossed. Regarding delay in claiming it is known that he was fingerprinted in Italy. The respondent has not provided any documentation about any claim there and I do not find his passage through various safe countries detracts from his credibility in the circumstance. In any event, the respondent has accepted he was engaged as he claimed."

15.           The Judge has found there is not much strength in the respondent's credibility points. However, in the next paragraph he has rejected the appellant's account. He has not made any adverse credibility findings of his own as a reason for rejecting the appellant's account without more. He has failed to give adequate reasons at [22] for why this part of the appellant's account has been rejected. He states simply that the appellant "has not established" that his friend was caught, that the authorities have visited his home, or that they detained his mother and sister, without more. I find that this failure to give reasons is a material error of law.

16.           I further find that there are no reasons given for the finding that it was "improbable" that the appellant had not had contact with his family. I agree with the grounds that the fact that "his mother was involved in the arrangements for him to leave" bears no relevance to whether or not the appellant is still in contact with them. There was evidence before the Judge, cited in the grounds, that the appellant was not in contact with his family. The Judge has not referred to this evidence, nor given reasons for why it could not be relied on.

17.           I find that ground 3 is made out. These are all matters which go to the appellant's risk on return.

18.           Ground 2 asserts that the Judge failed to consider paragraph 276ADE correctly, with reference to [24] of the decision. This states:

"I can see no reason why could not reintegrate into life in Iran. I appreciate he will have developed some private life here and I take this into account on a freestanding basis also in addition to 276 ADE. However, his private life was established when his right to remain was uncertain. In any event, I do not find this is of such depth as to be disproportionate and prevent his return."

19.           I find that there are insufficient reasons given for this finding. I have found above that the Judge has failed to give sufficient reasons for his findings in relation to the appellant's protection claim, and I find that he has failed to do the same here. He has stated that he can "see no reason why the appellant could not reintegrate", but he has given no reasons for this finding, and has failed to give any consideration to the appellant's circumstances. I find that this is a material error of law.

20.           In considering whether this appeal should be retained in the Upper Tribunal or remitted to the First-tier Tribunal to be remade I have taken into account the case of Begum [2023] UKUT 46 (IAC).   At headnote (1) and (2) it states:      

"(1)      The effect of Part 3 of the Practice Direction and paragraph 7 of the Practice Statement is that where, following the grant of permission to appeal, the Upper Tribunal concludes that there has been an error of law then the general principle is that the case will be retained within the Upper Tribunal for the remaking of the decision.      

(2)      The exceptions to this general principle set out in paragraph 7(2)(a) and (b) requires the careful consideration of the nature of the error of law and in particular whether the party has been deprived of a fair hearing or other opportunity for their case to be put, or whether the nature and extent of any necessary fact finding, requires the matter to be remitted to the First-tier Tribunal."     

21.           I have carefully considered the exceptions in 7(2)(a) and 7(2)(b).   Given that the Judge erred in his consideration of the appellant's account, and failed properly to consider the evidence, the appellant has effectively been denied a fair hearing.  It is therefore it is appropriate to remit this appeal to be reheard in the First-tier Tribunal.      

Notice of Decision      

22.           The decision of the First-tier Tribunal involves the making of material errors of law and I set the decision aside.  No findings are preserved. 

23.           The appeal is remitted to the First-tier Tribunal to be heard de novo.

24.           The appeal is not to be listed before Judge Farrelly.   

25.           The appeal is to be heard in Glasgow.  

26.           By 17 March 2024 the appellant is to confirm with the First-tier Tribunal whether an interpreter is needed for the hearing.   

 

Kate Hobbs

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

24 February 2025