Asylum and Immigration Tribunal
SB (risk on return-illegal exit) Iran CG [2009] UKAIT 00053
THE IMMIGRATION ACTS
Heard at: Manchester (Piccadilly)
Date of Hearing: 6 May 2009
Date Promulgated: 16 December 2009
Before
SENIOR IMMIGRATION JUDGE STOREY
IMMIGRATION JUDGE BRUNNEN
Between
SB
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Cole of Cole & Yousaf Solicitors
For the Respondent: Miss C Johnstone, Home Office Presenting Officer
(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.
DETERMINATION AND REASONS
“5. The Respondent considers that the Tribunal made a material error of law by re-opening the issue of the Appellant’s credibility despite the findings of the first Immigration Judge (ground 1). Further, or in the alternative, the respondent considers that the Tribunal made a material error of law by not considering the medical evidence submitted by the Appellant when assessing the Appellant’s oral evidence and credibility (ground 2(ii)). Accordingly the parties agree that this matter should be remitted to the Tribunal to consider the appellant’s case with respect to the assessment of risk on return to Iran in light of the positive credibility findings of the first Immigration Judge, which the parties agree shall stand. “
“7. The appellant’s account can be summarised thus. He began military service in 1989 and was posted to serve in a Sepah unit. His duties involved guarding political prisoners. The sound of the ill treatment of prisoners was distressing to him and he asked his superior officer, Haji Karimi, for transfer to other duties. The refusal resulted in a scuffle between the two in which the officer’s nose accidentally got broken. The appellant was court martialed, sentenced to four months custody and given an extra ten months military service. During the period of his detention he was subjected to beatings and interrogations. On release he was sent to serve out his time at the Sepah Yekum headquarters in Ahwaz. Haji Karimi who was still his commanding officer was vindictive and ensured that the appellant had extra duties and restricted leave. Towards the end of the period of military service a building that the appellant was guarding was burnt and the files therein destroyed. He was arrested and held without charge for eight months, before being given bail upon his father persuading a neighbour to lodge the deeds of his house as surety. On release the Appellant went on to complete his military service and then was discharged but he was not issued with a “completion card”. As a consequence of this he has been unable to obtain a driving licence, to take work in nationally owned companies, to marry or to open a bank account. The arson case has never been brought to court and he remains on bail. In consequence the neighbour’s house deeds remain as surety in the court file. The neighbour has died and his children wish to divide the estate up, but are unable to do so and have been putting pressure upon the Appellant to get the deeds released. The Appellant has been unable to do so as the courts insist that it is a matter for the Sepah and the Sepah insist that it is a matter for the court. On 7/10/06 the Appellant went to court with his neighbour in order to demonstrate to him that he was doing everything that he could. The judge told him that he had no power and that it was a matter for the Sepah, and the appellant responded by telling the judge that although he professed to do justice it was only a lie. That night the authorities came to his home when he was out. They told his mother that he must surrender to them as he is guilty of anti Islamic conduct. He decided to flee the country fearing the treatment the he would receive.”
7. We have decided to admit all the post-hearing evidence. It is clear from the Statement of Reasons for disposal by consent by the Court of Appeal that the parties agreed that specific regard should be had to the medical evidence. It is also clear from the decision of SIJ Lane finding a material error of law that the Tribunal was concerned that a decision on risk on return be made in the light of the latest evidence about country conditions, and indeed it would be contrary to Ravichandran principles not to decide an asylum appeal in the light of evidence on conditions in a country currrently: see Saber (AP) (Appellant v the Secretary of State for the Home Department) [2007] UKHL 57, para 13). Miss Johnstone is right that the appellant’s representatives never lodged a formal Rule 32(2) notice, but it is clear from the file that they intended to produce further evidence and that they gave advance notice they were seeking first medical, and, more recently, expert evidence. In all the circumstances we considered we should exercise our discretion to admit the further evidence; indeed, as already noted, we also took the step post-hearing of seeking further evidence from the parties on two issues specifically to ensure we could address the significance of recent events in Iran arising out of the June 12, 2009 presidential elections.
9. So far as concerns evidence relating to conditions in Iran then, we shall have regard to all the evidence now before us, including evidence post-dating the hearing before IJ Hague. The position so far as concerns evidence relating to the appellant’s particular circumstances is less straightforward. As already noted, we are obliged by the terms of the consent order to consider the further medical evidence, although that is now two years old. However, we also have further evidence from the appellant, including the summary given by IJ Foudy of his evidence before her and a further witness statement from him dated 13 December 2007. In the light of the clear agreement endorsed by the Court of Appeal that the assessment we make of risk in relation to Iran for this appellant is to be made “in the light of the positive credibility findings of the first Immigration Judge”, we consider it would be inappropriate to have regard to this further evidence. We are reinforced in that view by the fact that before SIJ Lane the Presenting Officer representing the respondent on that occasion conceded that the findings of fact made by IJ Hague on the appellant’s history were sufficiently clear to enable risk assessment to be made by reference to them; the appellant’s representatives did not demur. Had we decided to hear oral evidence from the appellant that would also have carried the risk that we then fell into the same error as IJ Foudy, in making findings at variance with those made by IJ Hague, when we have been expressly directed that such findings are to stand. We remind ourselves that we have to conduct a reconsideration not a rehearing of this appeal: see DK (Serbia) [2006] EWCA Civ 1747.
The two expert reports by Dr Kakhki
11. Dr Kakhki is a special adviser to the Centre for Criminal Law and Justice at Durham University where he also lectures on Comparative Law focusing on Islamic and Iranian justice systems. He is also an Associate of the Centre for Iranian Studies at the same university. Under the aegis of this institution he has provided analysis for the Advisory Panel on Country Information (APCI) of recent COIS reports on Iran. Since 2003 he has been providing expert opinions on Iranian law and procedure to various courts and tribunals. In his report dated 1 May 2009 Dr Kakhki states that the fact that the appellant had made a statement alleging impropriety by the Iranian judiciary in finalising his 13 year court case and returning the bail property would render him liable to face charges of contempt of court. The contents of his remarks would be seen directly or indirectly as insulting towards the Iranian judiciary or government. The next judge who dealt with him could rely on a number of provisions of the Penal Code to punish him for his insults. Its provisions included: Article 609 ( which stipulates that anyone who insults any of the leaders of the three branches of the government, or presidential deputies, or ministers, or any of the members of the parliament, or any of the staff of the ministries, or any other state employees, while they are on duty, will be punished by imprisonment from three to six months or flogging of 74 lashes or a fine of 50,000 to 1,000,000 Rials); Article 698 (which concerns the intentional creation of “anxiety and unease in the public’s mind”, “false rumours”, or writing about “acts which are not true”, even if it is a quotation; the punishment under this article is either imprisonment for between two months to two years, or up to 74 lashes); Article 513 (which makes it an offence to “insult” religion; this can be punished by either the death penalty, or imprisonment for between one and five years); Article 500 (which stipulates that, anyone who promulgates any propaganda against the regime, to the benefit of dissident groups or organisations, will be sentenced to three months to one year’s imprisonment); and Article 514 (which declares that: “anyone who, in any manner, insults the Founder of Islamic Republic of Iran, Imam Khomeini, or the current supreme Leader of the country will be sentenced to between six months and two years imprisonment.”).
“Therefore, as there is no separation between the State, including the judiciary, and religion, expression against the key parts of the government/judiciary may also be seen as a threat to the foundation of the regime. The fact that the statement was made in front of a Judge and his neighbour, [in a court] usually involving other officials or the public, the statement may be characterised as an attempt to spread ‘false rumours’ in society pursuant to Article 698. This is [because] one interpretation of the appellant’s statement is that the court system was not acting in individuals’ best interests but rather in that of the government. In addition, denying the authority of the government may be interpreted as a claim against national security and insult to religion per Articles 500 and 513 as rejecting the authority of the court as the extension of the state [and so] can be seen as an attempt to undermine the regime. It is also important to consider the location and context of these statements, namely the court, with Article 609 applying to insult of judicial officials while they are on duty; this is the equivalent of ‘contempt of court’”.
“The Card, as the name implies, is granted to those who [have] finished their military service. One role of the Card is to be evidence that all outstanding commitments have been resolved before leaving the military. If there was an unsettled matter following [the appellant’s] clashes with the Sepah, including the warehouse he was guarding having [been] burnt down and [there being] outstanding proceedings existing against him, then he would not be entitled to receive it. The function of the Card is crucial throughout society including applying for governmental jobs, passport, marriage, any transactions requiring Notary Office verification etc. All in all, it is very difficult to lead a reasonable lifestyle in Iran without this card.”
“Given the above information regarding the systematic use of torture by the Iranian authorities including against critics of the government as well as the inaction by the judiciary even with regard to confessions recognised as having been procured through abuse, it is possible that [the appellant] would face ill-treatment if returned to Iran, particularly due to the aggravating factor of having left the country illegally and his past record of activities.”
21. As regards the likely consequences of illegal exit, Dr Kakhki had this to say:
“… according to Article 34 [of the Penal Code], any Iranian who leaves the country illegally, without a valid passport or similar travel documents, will be sentenced to between one and three years imprisonment, or will receive a fine between 100,000 and 500,000 Rials. The assigned punishment in this article is called a “Taaziri” punishment (a deterrent), the severity of which is at the discretion of the presiding Judge. The Iranian Judiciary believe that the “Taaziri” punishment serves firstly to prevent the guilty party from re-offending, and secondly to benefit society by deterring potential criminals from committing that particular crime.
In order to proceed [sic] the cases relating to illegal departure, a special court is located in the Tehran Airport. Its branch number is given as 1610. If an Iranian arrives in the country, without a passport or any valid travel documents, the official will arrest them and take them to this court. The court assesses the background of the individual, the date of their departure from the country, the reason for their illegal departure, their connection with any organisations or groups, whether they applied for asylum in other countries and if so their reasons, and any other particular circumstances. Dependent on the outcome of the court’s investigation, the judge will decide the severity of the punishment within the parameters of Article 34. This procedure also applies to people who are deported back to Iran, not in the possession of a passport containing an exit visa; in this case the Iranian Embassy will issue them with a document confirming their nationality.”
“The situation of those returning from the UK may be particularly perilous as their point of origin would be clear and, where the individual had left the country illegally, the authorities would have the opportunity to investigate fully, checking the individual’s name against those wanted by the authorities.”
The Danish Immigration Service report April 2009
“7.4 Illegal exit
The sources were consulted on the matter of return to Iran of Iranians who have left the country illegally. Mirfakhar informed that a person who has left Iran illegally and who is not registered on the list of people, who cannot leave Iran, will not face problems with the authorities upon return, though the person may be fined. It was added, that a person who has committed a crime and has left Iran illegally will only be prosecuted for the crime previously committed and not for leaving the country illegally. However, a western embassy… stated that a fine is given for leaving the country illegally. The fine for illegal exit can run up to 50 million Iranian Rial which amounts to approximately 5,000 USD. To the knowledge of the embassy, people who have left Iran illegally are not detained upon return. The embassy did not know what happens if a person is unable to pay the fine. The Attorney at Law confirmed that there is a fine for leaving Iran illegally. However, he believed the fine to be around 200-300 US dollars. It was added that if a person has outstanding issues with the authorities (other than leaving illegally) he or she may very likely be punished for these upon return. The punishment will be according to law. However, it may also come to a stricter punishment since the person has left Iran illegally. It was further explained that if a person continues to leave Iran illegally the penalty might rise accordingly. Hence, continuous illegal departures from Iran will result in harsher criminal punishment. A western embassy … informed that an Iranian citizen can return even if he or she has left the country illegally. The embassy explained that the punishment a person might face upon return depends on the acts committed before leaving Iran. A fine may be given for illegal exit. The embassy did not know the size of the fine. Mahdavi stated that only a small number of Iranians leave the country illegally. The fine for leaving Iran illegally is a few hundred dollars and there is no other punishment. This statement is in contrast to the information given by a western embassy … and the Attorney at Law. Both sources knew of high numbers of Iranians who have left Iran illegally. According to Sajdrabi, a person who has left Iran illegally will be subjected to the laws and regulations that cover these issues. When asked to specify this, Sajdrabi repeated that Iranian laws and regulations will be applied in accordance.”
Other incidents of problems encountered on return to Iran by persons since the June 2009 election demonstrations
27. Given Dr Kakhki’s mention in his latest report of examples of problems facing persons on return in recent months, it is helpful next to set out documents contained in the appellant’s further bundle submitted in September 2009. A report dated 8 July 2009 by www.iranhumanrights.org refers to a report they had received from Defenders for Human Rights Centre (DHRC) in Iran concerning Bijan Khajehpour, a business and economic consultant of international renown who was said to have been arrested at Teheran airport following his return from abroad; he was not known, it was stated, to have been involved in any political activities. An Amnesty International news report dated 22 July 2009 refers to the same case, mentioning that during his trips abroad he spoke to trade officials in Vienna and met the Iran British Business Chamber in London. The same AI report mentions that a French national, Clotilde Reiss, was detained at Teheran airport in Iran, on her way home to France on 1 July: “The 24 year old is accused of espionage in connection with photographs she took during a demonstration in the city of Esfahan in which she participated last month…”.
Other background reports
“According to Article 34, any Iranian who leaves the country illegally, without a valid passport or similar travel documents, will be sentenced to between one and three years imprisonment, or will receive a fine between 100,000 and 500,000 Rials. In order to proceed [sic] the cases relating to illegal departure, a special court is located in Mehrabad Airport in Tehran. Its branch number is given as 1610. If an Iranian arrives in the country, without a passport or any valid travel documents, the official will arrest them and take them to this court. The court assesses the background of the individual, the date of their departure from the country, the reason for their illegal departure, their connection with any organisations or groups and any other circumstances. The judge will decide the severity of the punishment within the parameters of Article 34. This procedure also applies to people who are deported back to Iran, not in the possession of a passport containing an exit visa; in this case the Iranian Embassy will issue them with a document confirming their nationality.…illegal departure is often prosecuted in conjunction with other, unrelated offences. Such a methodology appears to suggest that it is the investigation into the facts surrounding the easily observable and provable offence of illegal departure, namely the motive for such an act (as a decision to depart illegally suggests a desire to escape prosecutorial/police detection for past illegal deeds), that eventually results in the discovery of the underlying offence, leading to a combined prosecution.” [6a] (p76)
29. At para 9.01 this report cites he same two academics’ summary portrayal of the Iranian security forces:
“Iran maintains an extensive network of internal security and intelligence services. The main parts of the domestic security apparatus are made up of the Ministry of Intelligence and Security, the Basij Resistance Force, the intelligence unit of the [Iranian Revolutionary Guards Corps] IRGC, and the law enforcement forces within the Ministry of Interior that largely are responsible for providing police and border control. The leadership of each of these organizations appears to be fragmented and dispersed among several, often competing, political factions. Public information on all Iranian security and intelligence forces is extremely limited and subject to political manipulation.
Key to most paramilitary and intelligence forces in Iran is the IRGC, as it holds control over several other organizations or parts thereof. All security organizations without exception report to the Supreme National Security Council (SNSC), as the highest body in the political chain of command.”
“The government's poor human rights record worsened, and it continued to commit numerous serious abuses. The government severely limited citizens' right to change their government peacefully through free and fair elections. The government executed numerous persons for criminal convictions as juveniles and after unfair trials. Security forces were implicated in custodial deaths and committed other acts of politically motivated violence, including torture. The government administered severe officially sanctioned punishments, including death by stoning, amputation, and flogging. Vigilante groups with ties to the government committed acts of violence. Prison conditions remained poor. Security forces arbitrarily arrested and detained individuals, often holding them incommunicado. Authorities held political prisoners and intensified a crackdown against women's rights reformers, ethnic minority rights activists, student activists, and religious minorities. There was a lack of judicial independence and fair public trials. The government severely restricted civil liberties, including freedoms of speech, expression, assembly, association, movement, and privacy, and it placed severe restrictions on freedom of religion. Official corruption and a lack of government transparency persisted. Violence and legal and societal discrimination against women, ethnic and religious minorities, and homosexuals; trafficking in persons; and incitement to anti-Semitism remained problems. The government severely restricted workers' rights, including freedom of association and the right to organize and bargain collectively, and arrested numerous union organizers. Child labour remained a serious problem. On December 18, for the sixth consecutive year, the UN General Assembly (UNGA) adopted a resolution on Iran expressing ‘deep concern at ongoing systematic violations of human rights’.” [4a] (Introduction)
“There are several court systems. The two most active are traditional courts, which adjudicate civil and criminal offences, and Islamic revolutionary courts. The latter try offences viewed as potentially threatening to the Islamic Republic, including threats to internal or external security, narcotics and economic crimes, and official corruption. A special clerical court examines alleged transgressions within the clerical establishment, and a military court investigates crimes connected with military or security duties. A press court hears complaints against publishers, editors, and writers. The Supreme Court has review authority over some cases, including appeals of death sentences.” [4a] (Section 1e) …
The military courts deal with cases concerning military personnel, including members of the revolutionary guard, Basij and the like, who have broken the law.”
“At least nine laws, many of which are vague and overlap, deal with criticism, insult and defamation notably of state officials; and at least one deals with the dissemination of “false information”. The punishments for such charges include imprisonment and the cruel, inhuman and degrading punishment of flogging ….
The Penal Code addresses the issues of criticism and insult in the vaguely worded Articles 514, 608 and 609. Article 514 singles out “insults” made against the late Ayatollah Ruhollah Khomeini, the first Leader of the Islamic Republic of Iran, Article 608 provides for flogging and a fine as punishment for “insulting others, such as using foul language or indecent words…” Article 609 states that criticism of a wide range of state officials in connection with carrying out their work can be punished by a fine, 74 lashes or between three and six months’ imprisonment for insult. Once again, the Penal Code provides no guidance regarding what determines “criticism” or “insult”.
Article 697 of the Penal Code considers defamation. It states that if an individual makes allegations of an act that “can be considered an offence according to law”, but cannot prove that it is true, that person will be sentenced to between one month and one year’s imprisonment or 74 lashes or a sentence combining the two. However, if the statements are proven, but the judge concludes that it is a “propagation of obscenities”, the person will also be sentenced.
Article 698 concerns the dissemination of false information or rumours with the intention of causing anxiety or unease in the public’s mind. This is punishable by flogging or imprisonment. In October 2001, Fatemeh Govar’i [f], a journalist and member of the Dr ‘Ali Shariati Cultural Studies Centre (Daftar-e Pajohesh-ha-ye Farhangi-ye Doktor ‘Ali Shari’ati), was sentenced to six months’ imprisonment and 50 lashes by a General court in Qazvin, in central Iran, for charges including “spreading falsehood” in connection with an interview she gave to the weekly journal, Velayat-e-Qazvin…”
34. The same Amnesty International report observes that:
“Under Article 513, offences considered to amount to an “insult” to religion can be punished by death or prison terms of between one and five years. Similarly, Articles 6 and 26 of the Press Code proscribe “writings containing apostasy and matters against Islamic standards [and] “the true religion of Islam…”, but state that such cases will be heard in a criminal court. Article 6 of the Press Code specifically states that those convicted will be “assigned punishments according to Article 698 of the Penal Code.” This article concerns the intentional creation of “anxiety and unease in public’s mind”, "false rumours” or writing about “acts which are not true”, even if it is a quotation, and provides for between two months and two years’ imprisonment or up to 74 lashes.
Neither the Penal Code nor Press Code specifically defines what activities constitute insult to religion, and both have been used to punish people for the expression of their opinion….”
“ By appointing loyal members of their inner circles to Judiciary positions and purging it of independent judges, the administration ensured a monopoly on the judiciary by the true believers of the ruling ideology. This monopoly gave clerics the power to implement Islamic decrees within the judicial system in a bid to wield totalitarian control over the people.”
36. The author adds:
“In Iran, the Judiciary is structurally aloof from social developments, acting as the government’s tool to settle social conflicts and political challenges while remaining untouched by public opinion. Since all Judiciary officials, including judges, prosecutors and even lawyers are appointed (per article 187 of the Third Development Plan Law), they are only accountable to the person who appoints them, and are not accountable to other individuals or bodies. In political trials which play a role in shaping public opinion, Judiciary officials have refrained from offering any explanations to the people. They have only alluded to the Leaders’ speeches, stating that the arrested individuals had been aiding the enemy.”
Submissions
38. The submissions at the hearing were as follows. Miss Johnstone relied on the respondent’s reasons for refusal. As regard the incidents that occurred during the appellant’s national service, she urged that we follow IJ Hague’s finding that they were “now so old that they have no bearing upon his asylum claim” (para 10). When considering the expert report by Dr Kakhki, she urged us to take into account the negative views about him expressed by the then President of the Immigration and Asylum Tribunal, Mr Justice Ouselely, in MS (Fresh Evidence) Iran [2004] UKIAT 00130. In any event, she added, the expert report clearly acknowledged that persons charged under Iranian law for anti-Islamic conduct had possible defences and in the appellant’s case he would be able to point to the fact that his outburst in court was the result of frustration over a delay lasting 13 years in being given a decision by the military court. It was clear from the amount of money he had used to leave Iran that he could arrange for good legal representation in Iran. The only examples given by the expert of persons convicted for anti-Islamic offences were either mid-level government officials or academics. By contrast the appellant held no government or academic position and had no media profile. The appellant had previously only come before a military court and, despite the expert’s view to the contrary, there was no good reason why that same court would not continue to deal with the appellant, considering him for example as having been in contempt of court. The expert’s report had lacunae, in particular he did not deal with what the implications for the appellant of the visit to his home by officials and he did not consider the medical evidence, and the (potentially discrepant) evidence arising from Miss Lees having been told by the appellant that he had had surgery to his hand at the time when the injury to it was sustained. The expert’s views on the consequences to a returnee of having exited illegally were at odds with Tribunal country guidance. The expert appears not to have understood that the appellant would only be returned with some form of travel documentation.
Our Assessment: general issues
Insulting the judiciary
44. Previous Tribunal country guidance cases have assessed with various aspects of the Iranian legal system and court system: see e.g. RM & BB (Homosexuals) Iran CG [2005]. Building on previous Tribunal assessments it is only necessary here for us to update certain matters. The major country reports and the expert evidence of Dr Kakhki now before us concur in viewing the Iranian judiciary as lacking in independence and subject to a number of political pressures. Events since June 2009, with the appointment of a new hardliner as head of the judiciary, appear to have increased the susceptibility of the judiciary to political influence by the security forces and current leadership. So far as concerns the likely response of the judiciary to someone who has insulted a judge in an Iranian court, in the absence of more evidence giving specific incidents of persons recently punished for insults in this context, it is difficult to make any precise findings, but we would accept that judges in the various courts would have regard to numerous provisions in their Penal Code that could be brought to bear against an individual who had conducted himself in court in a way likely to be considered insulting to the presiding judge or to the judiciary or justice system generally. In our view a person who had conducted himself in an Iranian court in a manner likely to be seen as insulting either to the judiciary or the government or to Islam would face an increased level of risk on return. In our view, engagement in such conduct is to be regarded as a significant risk factor.
Anti-Islamic conduct
Ongoing court proceedings
Illegal exit
47. The other question the Tribunal posed to the parties in its memorandum was whether an Iranian returnee would currently face a real risk of serious harm merely by virtue of being someone who left the country illegally or being someone who faces court proceedings and/or judicial punishment in Iran in the light of the June 2009 election events. This is a question which the Tribunal has faced in a number of past country guidance cases on Iran, in particular AD (Risk-Illegal Departure) Iran CG [2003] UKAIT 00107 and the answer in every case has been that the authorities will not perceive illegal exit as such to be a reason for ill-treating a returnee. Although the parties sought to assist us with further evidence relating to this issue, they have not made submissions as to the extent to which that evidence has altered the position, so we must decide the matter as best we can in the light of all the evidence.
52. What we derive from our above analysis is that the most likely position is as follows. Illegal exit is not a factor which in itself is a significant risk factor, although if it is the case that a person would face difficulties with the authorities for other reasons, it could be a factor adding to risk. Normally illegal exit is considered as an offence attracting only a fine involving a relatively modest sum of money; however, matters can become more problematic when the person is (or is discovered to be) someone involved in ongoing court proceedings or someone who has a previous criminal record or someone who is viewed in a political light as having views contrary to that of the current regime. Given the updating we have now done of the evidence on this issue, the case of AD (Risk-Illegal Departure) Iran CG [2003] UKAIT is to be treated as historical guidance only.
Risk factors generally
(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 illegally Iran 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.
Our Assessment: the appellant’s case
“I find it difficult to accept that he has provoked such hostility that he faces significant ill-treatment. An apology to the court should have suggested itself as a remedy. I find it difficult to accept that his departure from the country was occasioned by fear”.
69. For the above reasons we conclude:
The IJ materially erred in law.
The decision we substitute for his is to allow the appellant’s appeal on asylum and Article 3 grounds.
Signed
Senior Immigration Judge Storey
APPENDIX A
DECISION BY SENIOR IMMIGRATION JUDGE P R LANE (signed 7 September 2007)
REASONS FOR THE DECISION THAT THERE IS AN ERROR OF LAW
IN THE DETERMINATION by
APPELLANT: SB
DATE OF RECONSIDERATION HEARING: 5 September 2007
1. At the reconsideration hearing on 5 September 2007 the Tribunal found that there was a material error of law in the determination of the Immigration Judge.
2. As conceded by Mr Wood, the Immigration Judge, having found that the appellant’s account of his experiences in Iran was reasonably likely to be true, failed to make proper findings as to risk on return to that country; in particular, whether the Iranian authorities would be reasonably likely to proceed against him for anti-Islamic conduct, in connection with the appellant’s outburst in court in 2006.
3. The Tribunal was unable on 5 September to proceed to substitute a fresh decision to allow or dismiss the appeal. Although, on the basis of Mr Wood’s concession that the Immigration Judge made sufficiently clear findings about the appellant in Iran, and that those findings should stand, the Tribunal would have expected on that day to have been presented with evidence and detailed submissions as to the outstanding issues on risk on return, Mr Ahmed was in the difficulty that both he and his instructing solicitors had only very recently been instructed by the appellant (who had previously represented himself) and certain case law upon which Mr Wood intended to rely had not been successfully received by fax in London. The Tribunal accordingly adjourned the reconsideration to be completed in Manchester.
APPENDIX B: BACKGROUND MATERIALS
Amnesty International, Iran: A legal system that fails to protect freedom of expression and association, 2001
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Human Rights Watch World Report 2007: Iran, dated 11 January 2007.Gozaar (Freedom House)
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Report by Gozaar (Freedom House), The Judiciary: A stronghold of Authoritarianism, 1 November 2007
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Article by Majid Mohammadi entitled, “The Judiciary: A Stronghold of Authoritarianism”, Issue 15, November 2007 – Aban 1386 – Justice and the Judicial System,
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COIS Report August 2008
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US State Department Report for 2008 (February 2009) |
Danish Immigration Service, Human Rights Situation for Minorities, Women and Converts, and Entry and Exit Procedures, ID Cards, Summons and Reporting, etc., 30/04/2009 [excerpt]
Amnesty International Report, 28 May 2009
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Amnesty International, Iran: Violence against demonstrators marks new presidential term, 14/06/2009
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UK /foreign and Commonwealth Office (FCO), Foreign Secretary statement on the Iranian elections, 15/06/2009
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Human Rights Watch, Iran: End Violence Against Peaceful Protests (Security Forces shoot and Kill Protesters in Tehran and Shiraz), 15/06/2009
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Radio Free Europe/Radio Liberty, Seven Reported Killed in iran Clashes, 16/06/2009
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Rooz Online, Savage attack on student Dormitories, 16/06/2009
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EurasiaNet, Iran: Hardliners Double Down On Repression, But Protest Numbers Keep Growing, 16/06/2009
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Office of the United Nations High Commissioner for Human Rights (OHCHR), Human rights chief experts gravely concerned at killings and arrests in Iran, 19/06/2009 rights experts gravel concerned at killings and arrests in Iran, 19/06/2009 ____________________ 23
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Office of the United Nations High Commissioner for Human Rights (OCCHR), UN human rights chief concerned about manner of arrests, and possible use of excessive force in Iran, 19/06/2009
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Amnesty International, Opposition leaders detained in Iran, 19/06/2009
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Amnesty International, Iran’s supreme leader condones violent police crackdown on protesters, 19/06/2009
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Human Rights Watch, Iran: Halt the Crackdown, 19/06/2009
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Reporters Sans Frontiers (Reporters Without Borders), Repression stepped up yet again as Iran becomes world’s biggest prison for journalists, 21/06/2009
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International Campaign for Human Rights in Iran, Human Rights Organization Provides the Names of Prominent Detainees, Calls for Their Release, 23/06/2009
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Radio Free Europe/Radio Liberty, The British in Iran; Useful Villains, 23/06/2009
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Human Rights Watch, Iran: Violent Crackdown on Protesters Widens, 23/06/2009
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Radio Free Europe/Radio Liberty, Iranian Government Intensifies Countrywide Crackdown, 25/06/2009
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Human Rights Watch, Iran: Night Raids Terrorize Civilians, 26/06/2009
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Voice of America News, Iran Arrests Local British Embassy Employees, 28/06/2009
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UK Foreign And Commonwealth Office (FCO), EU Foreign Ministers call on Iran to release Embassy staff immediately, 28/06/2009
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Voice of America News, Iran Releases 5 British Embassy Staff, 29/06/2009
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UK Parliament House of Commons, Commons Hansard Debates 30 June 2009: Oral Answers to Questions – Iran, 30/06/2009
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Voice of America News, Brown: Iran Using Britain as Scapegoat for Political Unrest, 01/07/2009
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Voice of America News, Iran’s Supreme Leader Blasts Alleged ‘Western meddling’ in Iran, 06/07/2009
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Office of the United Nations High Commissioner for Human Rights (OHCHR), UN experts gravely concerned by mass arrests in Iran, 07/07/2009
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UK Parliament |House of Commons, Commons Hansard debates 08 July 2009 (Westminster Hall): Human Rights (Iran), 08/07/2009 [Excerpt]
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Report dated 8 July 2009 by www.iranhumanrights.org
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Human Rights Watch, Iran: Detainees Describe Beatings, pressure to Confess, 08/07/2009
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International Campaign for Human Rights in Iran, Widespread Arbitrary Arrests and Disappearances Continue, 08/07/2009
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UK Parliament House of Commons, Commons Hansard Debates 09 July 2009 (Westminster Hall): Global Security (Iran), 09/07/2009 [Excerpt]
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Amnesty International, Iran: Hundreds of detainees at risk of torture and other ill-treatment: list of detainees, 13/07/2009
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International Campaign for Human Rights in Iran, Death Toll Apparently Far Exceeds Government Claims, 15/07/2009
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Human Rights Watch, Iran: Halt Moves to Curtail Lawyers, 16/07/2009
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Human Rights Watch, Iran; Stop ‘Framing’ Government Critics, 21/07/2009
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Amnesty International, Arrests and deaths continue in Iran as authorities tighten grip, 22/07/2009.
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Medical Foundation for the Care of Victims of Torture (UK), Iran: The cycle of torture and oppression, 22/07/2009
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Human Rights Watch, Iran: Stop arresting, Intimidating Rights Lawyers, 26/07/2009
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International Campaign for Human Rights in Iran, Tales of Torture, Violence Continue to be heard from Iran, 31/07/2009
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Voice of America News, Trial Begins for Iran Election Protesters, 01/08/2009
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Voice of America News, Post-Election Detainees on Trial in Iran, 02/08/2009
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Amnesty International, Over 100 Iranians face grossly unfair trials, 04/08/2009
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Human Rights Watch, Iran: Show Trial Exposes Arbitrary Detention, 04/08/2009
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UK Home Office Country of Origin Information Service, Iran COI Report August 2009, 06/08/2009 [Excerpt]
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Voice of America News, Iran Tries Second Group of Election Protesters, 08/08/2009
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International Campaign for Human Rights in Iran, Torture and Ill-Treatment Systematic, Not Result of “Negligence” and “Carelessness”, 10/08/2009
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Amnesty International, Iran: Open Tehran trial to international observers, Amnesty International challenges, 11/08/2009
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Office of the United Nations High Commissioner for Human Rights (OHCHR), Iran: detainees subjected to torture and ill-treatment to extract confessions, warn UN Experts, 13/08/2009
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Reporters Sans Frontieres (Reporters Without Borders), Details emerge about show trial detainees being denied their rights, 13/08/2009
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Amnesty International, Urgent Action 214/09 – Iran: Mass trial of protestors undermining justice, 13/08/2009
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Human Rights Watch, Iran: Investigate Security Chiefs in Post-Election Abuse, 14/08/2009
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Voice of America news, Iran’s Supreme Leader Names New Hardline Judiciary Chief, 15/08/2009
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Amnesty International, Iran: Supreme Leader must act on torture, says Amnesty International, 15/08/2009
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Voice of America News, Iran Puts 28 More Detainees on Trial, 16/08/2009
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Voice of America News, Iran Prosecutes Top Reform Figures in Mass Trial, 25/08/2009
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Radio Free Europe/Radio Liberty Iranian Reformist Leader’s Son Talks About Court Appearance, 25/08/2009
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Radio Free Europe/Radio Liberty; New Prison-Rape Allegations in Iran Bring Practice To Light, 26/08/2009
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Radio Free Europe/Radio Liberty; Iranian Nobel Laureate Ebadi Condemns Reformists’ Trials as ‘Illegal’, 27/08/2009
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Radio Free Europe/Radio Liberty; Iran’s Ahmadinejad Calls For Prosecution Of Opposition Leaders, 28/08/2009
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Voice of America News, Iranian President Calls for Prosecution of Opposition Leaders, 28/08/2009
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Human Rights Watch, Iran: New Judiciary Chief Should Tackle Rights Abuses, 28/08/2009
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Radio Free Europe/Radio Liberty; Tehran’s Hard-Line Prosecutor Moved to State Role, But Little Changes, 31/08/2009
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COIS Report, August 2009 |
Radio Free Europe/Radio Liberty; Supreme Leader Stokes Fears of New Cultural Revolution In Iran, 03/09.2009
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Rooz Online (France), Security Forces Searching for Whistle Blowers, 03/09/2009
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