Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 106
P1216/10	OPINION OF MORAG WISE, Q.C. (Sitting as a Temporary Judge) in the Petition of F. A. (Assisted Person) Petitioner; for Judicial Review of the Refusal of Permission to Appeal by The Upper Tribunal Dated 6 August 2010 ­­­­­­­­­­­­­­­­­________________

Pursuer: Bryce; Drummond Miller

Defender: McIlvride; Office of the Advocate General

22 June 2012

Background

[1] The petitioner is an Iranian citizen who left Iran without an Iranian passport. He entered the United Kingdom illegally. On 6 April 2010 he claimed asylum. He claimed to be a member of the Basij, a paramilitary militia supportive of the revolutionary government in Iran. Further, he claimed that shortly prior to his departure from Iran he attracted adverse attention from the authorities as a result of assistance rendered by him to anti-government demonstrators. The respondent refused that asylum claim on 23 April 2010 in a Reasons for Refusal Letter (No 6/4 of process) which records (at paragraph 20) that as the petitioner had shown little knowledge of the Basij, it was not accepted that he was involved with or was a member of the Basij. The petitioner appealed that decision to the First-Tier Tribunal and a hearing before an Immigration Judge took place. The decision of the Immigration Judge, on 15 June 2010, was to refuse the appeal. The petitioner then applied for permission to appeal that decision to the Upper Tribunal. On 6 August 2010 an Upper Tribunal Judge refused to grant permission to appeal. The petitioner now seeks reduction of that decision. The Petition was raised in November 2010, but was sisted for most of 2011 to await the outcome of the case of Eba v Advocate General for Scotland 2011 SLT 768.

The Basij Resistance Force

[2] At all stages of the decision making process in relation to the petitioner, information has been available about the nature and scale of the organisation of which he claimed to be a member. The Country of Origin Information Report ("COIR") for Iran (2010), includes the following quotation at paragraph 9.01:-

"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 [Iran 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 organisations 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."

Paragraph 9.02 of the COIR (2010) quotes Jane's Sentinel Country Risk Assessments for Iran as stating that:-

"The entezamat (law enforcement) and quasi- and paramilitary forces of Iran present a confused picture to the West. Although the complex, multiple institutional structure of the security and foreign policy apparatus suggests disarray and discord, it is not anarchic."

Paragraph 9.03 quotes the relevant US State Department Human Rights Report on Iran as stating:-

Several agencies share responsibility for law enforcement and maintaining order, including the Ministry of Intelligence and Security (MOIS), the LEF under the Interior Ministry, and the Iran Revolutionary Guard Corps (IRGC). The Basij and various informal groups known as the "Ansar-e Hizballah" (Helpers of the Party of God) were aligned with extreme conservative members of the leadership and acted as vigilantes."

Paragraph 9.18 of the COIR includes more detailed information specific to the Basij. It is described as "a people's militia" of over 1,000,000 in number, mostly manned by elderly men, youth and volunteers who have completed their military service. The narrative continues:-

"Today, its main tasks are thought to assist locally against conventional military defense as well as to quell civil uprisings. In addition, one of the Force's key roles has been to maintain internal security, including monitoring internal threats from Iranian citizens and acting as a "static militia force. The state of training and equipment readiness for the Basij is believed to be low."

Decision of the Immigration Judge, First Tier Tribunal

[3] In her determination (No 6/8 of Process) the Immigration Judge summarises her task as being to determine whether, at the date of the hearing, there was a real risk of persecution of the petitioner on a return to Iran. The background and evidence is summarised in paragraphs 6-15 of the decision, where it is narrated that the petitioner claims he joined the Basij as a volunteer at the age of 13 on a part time basis. It is recorded that "... He maintains he has a membership card which he has provided as evidence." It is clear from the record of the evidence at the hearing and the submissions made (paragraphs 16-30) that the credibility of the petitioner's account was a central issue. That account included both the claim that he was a member of the Basij and his account of the nature and level of the activities he had undertaken.

[4] In the section of the determination that assesses the evidence and records the decision with reasons, the Immigration Judge reiterates (at paragraph 31) that the petitioner "maintains" that he is a member of the Basij and that he would be at risk of persecution "...because he is sought by the authorities." It is recorded that the petitioner had very little substantive information regarding the Basij, for example he did not know about the rank structure. The petitioner's account of being involved in an incident for which his brother and his brother's friends were arrested, leading to a fax being sent to a Mosque where the petitioner was working intimating that he should be arrested is specifically rejected as not being credible (paragraph 41). The Immigration Judge's general conclusions on the material points are expressed in the following extracts from paragraphs 47- 50 of the determination:-

"47. Regarding his illegal exit the Appellant has not put forward a claim on this basis and the Letter of Refusal makes reference to the Country Guidance Case SB (Risk and Return - Illegal Exit) Iran CG [2009] UKIAT 00053. In that case what is emphasised is that the risk of persecution or ill treatment depends largely on the particular circumstances. Iranians facing enforced return do not generally face a real risk of persecution or illegal 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 the person would face difficulties with the authorities for other reasons, such a history could be a factor adding to the level of difficulties he/she is likely to face............. In the Appellant's case he, if he was working for the Basiji, did nothing to indicate to the Basiji he was helping the demonstrators.

49. The Appellant's account is not credible. There is a lack of internal

consistency and his account is at odds with the objective evidence. If the account were accepted, namely he is a member of the Basiji and assisted his brother, the level of scrutiny exercised by the Basiji means he would have been apprehended.

50. Taking the evidence in the whole I do not accept the Appellant's account as an accurate finding in fact and accordingly given the lack of credibility I do not accept the consequences of the Appellant's return to Iran would be as he maintains. "

Refusal of permission to Appeal to the Upper Tribunal

[5] The Tribunals, Courts and Enforcement Act 2007 provides a right of appeal from a First tier Tribunal decision on a point of law, but permission, either from the First tier Tribunal or the Upper Tribunal, to exercise that right of appeal is required. The petitioner applied in the first instance to the First tier Tribunal for permission. That having been refused he made the application that led to the decision of 6 August 2010.

[6] In seeking permission to appeal the petitioner argued, inter alia, that the Immigration Judge's treatment of his evidence that he was a member of the Basij was ambiguous in that she appeared to accept the petitioner's explanation for his lack of knowledge of the structure of the organisation without expressly saying so. Further, as illegal exit from Iran created risk on return if coupled with additional risk factors, the Immigration Judge should have found that desertion from the Basij could be such a factor.

[7] In his decision of 6 August 2010, the Senior Immigration Judge gave reasons for refusing to allow an appeal on that ground as follows:-

"The Grounds argue that the IJ erred in failing to make a finding on whether the appellant was a member of the Basiji which was relevant to the appellant's risk on return. There is no merit in this argument. It is clear throughout the determination that the IJ was aware of the appellant's claim to fear persecution. It was an integral part of his account that he was a member of Basiji. At paras 49 and 50, the IJ made a comprehensive adverse credibility finding. She did not accept his account. That finding necessarily entailed a rejection of his claim to have been a member of the Basiji. The IJ was not required to spell this out any further."

Submissions for the petitioner

[8] Counsel for the petitioner accepted that the Immigration Judge was entitled to reach the conclusion that the petitioner had not come to the attention of the authorities by rendering assistance to anti government demonstrators. However Mr Bryce submitted that there was ambiguity as to whether she accepted that the petitioner was in fact a member of the Basij. He contended that it is an important question of principle or practice whether membership of the Basij is sufficient, together with illegal exit, to engage the need for international protection. That question could not be answered by the existing Country Guidance cases for Iran. Under reference to the decision of Lord Stewart in MK (AP) for Judicial Review [2012] CSOH 29 at para 33, it was submitted that clarification of gaps in Country Guidance cases amounted to an "Eba- proof" question of law because the scope of a Country Guidance case is likely to involve an important point of principle or practice.

[9] Some reliance was placed on the overview of the nature and scale of the Basij Resistance Force in the Country of Origin Information Report for Iran (2010) referred to at paragraph [2] above. In essence the primary mission of the Basij is internal security. There are a large number of volunteers but the state of training and equipment readiness is thought to be low. The relevant Country Guidance case involving Iran is SB (risk on return- illegal exit) Iran CG [2009] UKAIT 00053 and in SB, the guidance provided on issues of risk of return includes the following at paragraph 53:-

"...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.

Being a person who has left Iran when facing court proceedings (other than ordinary civil proceedings) is a risk factor....

..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....

..Being accused of anti-Islamic conduct likewise also constitutes a significant risk factor"

Thus it was submitted that from 2009 there has been Guidance on the type of factors which, coupled with illegal exit, would likely result in a risk of persecution on a forced return.

[10] The particular circumstances of a member of the Basij illegally exiting Iran were examined in AA (Art 1F(a) - complicity -Arts 7 and 25 ICC Statute) Iran
[2011] UKUT 339. The case concerned the question of whether the appellant was excluded from the protection of the Refugee Convention through being complicit in crimes against humanity committed by the Basij. The Immigration Judge in that case had accepted the core elements of his account to be true. She had concluded that a return to Iran, which the appellant had illegally left, without a passport and as a former member of the Basij who had departed suddenly after being suspected of having actively assisted dissident Aziris in their illegal activities, would expose him to a real risk of ill-treatment on a forced return. It was submitted that this illustrated that if three elements were present, namely an illegal departure, membership of the Basij and a sudden departure from Iran after having been suspected of assisting dissidents in anti government activity, there could be little doubt that there would be a sufficient basis to conclude that a return to Iran would result in a real risk of persecution. What was unclear was whether, if only two elements were present, namely illegal exit and membership of the Basij, application of the Country Guidance would lead to the same result.

[11] Mr Bryce accepted that the initial decision letter was clear in rejecting the petitioner's contention that he was a member of the Basij. It was suggested, however, that in contrast the Immigration Judge "went some way" to accepting he was a member of that organisation without realising the significance of that. She concentrated on whether his account of helping the opposition was to be believed. Had it been accepted, that account would have been sufficient to secure protection for him, containing as it would have, the three elements present in AA. As his account of his particular activities had not been accepted, the scope and application of the Country Guidance case of SB to his situation was unclear.

[12] It was conceded that in order to succeed the petitioner required to show both that there was a reviewable error of law and that there was an Eba style point of general importance. It was submitted that the petitioner's claim of membership of the Basij had been consistent and that the argument that a deserting Basij who had departed Iran illegally would be at real risk on return was a substantial argument that required to be considered by the Upper Tribunal "at some stage". The Immigration Judge had not specifically addressed the question of the petitioner being a member of the Basij and she did not explain what she made of the Membership Card, perhaps because she did not realise it might matter. It was illogical for the Senior Immigration Judge to state that the Immigration Judge had rejected the petitioner's claim to be a member of the Basij, because this ignored the reference in her decision (at paragraph 49 of No 6/8 of process) to the fact that the level of scrutiny exercised by the Basij mean that he would have been apprehended had he been assisting his brother. The decision was accordingly erroneous in law and should be reduced.

Submissions for the Respondent

[13] Counsel for the respondent submitted (i) that the petitioner had failed to demonstrate any error of law on the part of the Senior Immigration Judge of the Upper Tribunal and (ii) even if such an error of law could be said to exist, the petition should in any event be refused as a further appeal would raise no important matter of general law or practice. He invited me to refuse the petition on either of these grounds.

[14] The real question behind the petition was whether the Immigration Judge could or should have gone beyond the summary set out in the Country Guidance Case on the circumstances in which a return to Iran after an illegal exit would be at risk. Mr McIlvride submitted that it was not enough that it might be of benefit to know whether the combination of illegal exit plus membership of the Basij might be sufficient in a particular case to constitute a real risk on a forced return. In exercising a supervisory jurisdiction it was necessary to show an error in the approach taken to the question before the Upper Tribunal.

[15] On the question of whether any error of law could be detected in this case, reference was made to paragraph 6 of the Immigration Judge's decision, No 6/8 of process. There is there a narration of the petitioner's account which was that he was a member of the Basij, that he had acted contrary to the Basij and that there was a warrant for his arrest. These were the circumstances in which he claims he left Iran. While the Immigration Judge had made no formal finding in relation to the membership card, all the submissions in relation to relevant matters are recorded and it is clear that the petitioner's representative did not seek to found on the membership card as being of significance. Accordingly it was hardly surprising that it was not dealt with as a discrete issue. It was clear from paragraph 47 of her determination that the Immigration Judge was aware of and took into account the relevant Country Guidance case for Iran. It was never suggested to the Immigration Judge that membership of the Basij was itself sufficient to attract protection. Against that background the way in which the account was dealt with and rejected on credibility grounds was understandable. As the petitioner's account of events had been rejected, the Senior Immigration Judge was then well founded in taking the view that he did. There was simply no good argument that either of the two Immigration Judges had fallen into error. The petitioner could have argued before the Immigration Judge that his membership of the Basij coupled with illegal exit was sufficient to create a risk on return. He did not do so. The petitioner's argument seemed to be that the Senior Immigration Judge looking at these papers ought to have concluded that there might be a gap in the Country Guidance for Iran that required to be addressed. However, the role of the Upper Tribunal is to determine whether the First tier Tribunal has erred. While a failure to make a material finding could constitute an error of law, here there was no such failure.

[16] Counsel submitted that the case of AA (Art 1F(a) - complicity -Arts 7 and 25 ICC Statute) Iran did not assist. It was an example of a credible account of a reasonably senior member of the Basij leaving Iran suddenly after being found to help dissidents. On the petitioner's own account he had held a lowly, part time position in the Basij. If that part of his account had been accepted, he would not be suspected of any untoward activity and there would be nothing to create the significant risk. The case of MK (AP) decided by Lord Stewart concerned the issue of whether there was a lack of Country Guidance relevant to those returning to Afghanistan who wished to conceal something about themselves, the question being whether they could safely relocate within that country. In that context it was said that a lack of Country Guidance could tip the balance into succeeding at the second stage of considering the Eba requirement for an important point of principle or practice. In contrast, in this case the petitioner was not offering to adduce evidence that membership of the Basij alone creates risk. SB (risk on return- illegal exit) Iran CG was clear on what was required to constitute a significant risk. The petitioner's argument had to be tested against the clear dicta in Eba v Advocate General for Scotland at paragraphs 47-51 that (1) the court should be slow to interfere with decisions that lie within the expertise of specialist tribunals, (2) the limitation in scope for second appeals is inconsistent with a wider opportunity to reconsider decisions of the Upper Tribunal to refuse permission to appeal by way of judicial review and that (3) such applications for judicial review should be approached with restraint. In the absence of a clear error or other compelling factor it was submitted that there was no basis for interfering with the Upper Tribunal's decision in this case. In any event, if the petitioner had further important material indicating a substantial risk for him on return he was not precluded from making further submissions under Rule 353 of the Immigration Rules.

Discussion and Decision

[17] This is not a case in which it is suggested that the Immigration Judge erred in failing to apply a Country Guidance case without good reason. It was not seriously suggested that she did anything other than apply the relevant Country Guidance case to the facts established before her. The most that can be remarked on is that the Judge's decision did not distinguish between simple membership of the Basij and membership coupled with actings that might bring someone to the attention of the authorities in Iran. I do not consider that the Immigration Judge could properly be criticised for that. The Country Guidance is clear in laying down that illegal exit from Iran is not enough to establish significant risk. The passage which immediately precedes the summary on issues of risk is in the following terms:-

"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." (paragraph 52)

Thus what is required in addition is for the applicant to establish that they would "...face difficulties with the authorities for other reasons" [SB (risk on return - illegal exit) Iran CG at para 53(ii)]. While the reasons are not strictly defined or restricted, the specific examples given are those where the authorities would have an interest in the returnee because of their political profile or conduct. Accordingly, it is the fact of facing difficulty with the authorities on a return that must be established, something that will depend heavily on the credibility of the account given by the applicant in support of a contention that he would face such difficulties.

[18] The petitioner in this case did not seek to argue that he would as a matter of fact face the required difficulties simply because he was (on his account) a low level part time member of the Basij. He accepted (see para 36 of 6/8 of process) that he had no problems in Iran prior to the incident which he maintained precipitated his departure. The contentious account focused on his giving intelligence information to his brother about the organisation's activities and where they would be apprehending demonstrators. The petitioner then claimed that his brother and a friend were then arrested and detained, that they had divulged that he had been assisting them and that such disclosure led to a warrant for his own arrest. He also gave an account about documents relative to the alleged arrest warrant having been posted to the UK for him by a friend but not received. (paras 37 -39 of 6/8 of process). As the Senior Immigration Judge put matters, it was integral to his account that the petitioner was a member of the Basij and the Immigration Judge's finding on his lack of credibility was comprehensive. In my view there is no ambiguity in the Immigration Judge's findings that suggests a clear error was made in refusing permission to appeal. After rejecting the petitioner's account the Immigration Judge states, at paragraph 49:-

"If the account were accepted, namely he is a member of the Basiji and assisted his brother, the level of scrutiny exercised by the Basiji means he would have been apprehended."

While it might be said that the use of the conditional tense in that finding is not completely consistent, the meaning is clear enough, namely that had the petitioner's account been true, the Basij would have apprehended him given the level of scrutiny they exercised over their members. The import of the statement is a clear rejection of both the claim to membership of the Basij and the account in relation to assisting the brother. Counsel for the petitioner specifically acknowledged that he could not challenge the Judge's credibility findings. I reject the contention that questions of membership of the Basij and the nature of the activities carried out required to be addressed separately by the Immigration Judge or that any specific finding on a document said to be a membership card was required. The petitioner had been shown to have very little substantive information regarding the Basij and was ignorant of its rank structure. He was unable to name the Basiji Commander in Tehran (paragraphs 15 -20 of the Reasons for Refusal Letter, No 6/4 of process and paragraph 34 of the Immigration Judge's decision, No 6/8). Against that background the Immigration Judge simply recorded that the petitioner maintained he had a membership card as part of the background and evidence. The absence of a specific finding about the membership card is of no consequence because the appellant's account as a whole was clearly rejected. It follows that I consider the Senior Immigration Judge did not err in his approach when refusing permission to appeal. On one view that renders the issue of whether there is any gap in the Country Guidance case somewhat academic, as it is a necessary pre requisite to success for the petitioner to show an error on the part of the Tribunal. It is appropriate, however, that I express a view on that matter also, as there was some overlap in the presentation of the two arguments.

[19] It is authoritatively set out in Eba v Advocate General for Scotland that the benchmark for the court to use in the exercise of its supervisory jurisdiction is akin to those restricting the scope for a second appeal. In essence, the issue requires to be one of general importance, not one confined to the petitioner's own facts and circumstances. The question here is whether a so called "gap" in a Country Guidance case might be regarded as such a matter of general importance. In MK ( AP) for Judicial Review [2012] CSOH 29 Lord Stewart regarded it as arguable that in some situations it could be so regarded and I would respectfully agree with that. However, the issue in this case is very much restricted to the petitioner's own facts and circumstances and relates more to his failure to prove relevant facts than to any issue of the scope of the Country Guidance. He failed to give a credible account that he would face difficulties with the authorities on a return and so he could not bring himself within the existing Guidance. I consider that such interest as there may be in knowing whether membership of the Basij coupled with illegal exit could constitute significant risk in a relevant case falls well short of the need to show that this case throws up an important point of principle or practice. The wording used in the Country Guidance case seems broad and flexible enough to allow anyone who exits Iran illegally and is then genuinely at risk of being exposed to action by the authorities on their return to argue that they require protection from a forced return. The petitioner's claim to be a member of the Basij was subsidiary to the central question of the consequences of a return. It was the absence of a credible account on that central question that led to an adverse decision. The petitioner was described by his Counsel as a "Basij deserter", but that expression has connotations that are not justified standing the rejection of his account. The consequence of his account having been rejected is that the petitioner is a man who had encountered no problems whatsoever in his home country, but who then exited illegally. No important issue of principle or practice arises from those now established facts.

[20] In conclusion, I find that the petition fails because there was no error on the part of the Upper Tribunal in this case. In light of the comprehensive rejection of the petitioner's account, the Senior Immigration Judge did not act in any way unreasonably or irrationally in refusing leave to appeal. Even had I considered that an error had been made, I would not in any event have concluded that this case raises an issue of general importance in terms of the Eba requirement.

[21] It follows that I shall sustain the second and third pleas in law for the respondent and refuse the petition, reserving meantime all questions of expenses.