Scottish Court of Session Decisions

Pursuer: Winter, advocate; Drummond Miller LLP

Defender: Gill, advocate; Office of the Advocate General

8 November 2013

[1] A procedural first hearing called before me on 11 October 2013. Mr Winter appeared on behalf of the petitioners and Mr Gill on behalf of the respondent. The petitioner challenges the decision of the Upper Tribunal Judge dated 21 February 2013 in refusing permission to appeal from a determination of the First Tier Tribunal (FTT). The respondent has intimated that it would be submitted that the test in Eba v Advocate General 2012 SC UKSC 1 (Eba) is not met in this case.

Background
[2] The petitioner is an Iranian national who entered the United Kingdom illegally in September 2012. He stated to the UK Border Agency that he had left Iran on 15 July 2012 hidden in a lorry and had made his way to the United Kingdom. He made an asylum and human rights claim on the basis that he had a genuine fear for his life in Iran due to his political opinion and his activities as a body builder. The former claim was based on the contention that he and others had been responsible for writing anti-government slogans on walls in his home town. This went on for two or three months until one night in July 2012 when a police car stopped nearby as the petitioner and his associates were engaged in painting walls. This led to a series of events which caused the petitioner to flee from Iran. He had left his ID card and mobile phone in the car which was used to go to the area in question and the next day he learned that the authorities were looking for him. They had been to his house and to the gym where he worked. His father was detained. A friend told him that he and his family were in imminent danger and it was better for him to leave Iran. He then proceeded to do so.

[3] His asylum and human rights claims were refused by the respondent by letter of 16 October 2012. It was found that he was not a credible witness and it was not accepted that he was wanted by the authorities for writing anti-regime slogans. He appealed to the FTT and a hearing took place on 12 December 2012. His claims were rejected by the judge on the basis that he had not established that his experiences were credible. The judge rejected his evidence on all crucial matters. It was found that the petitioner had not established that he had been persecuted in the past or would be in the future by the authorities in Iran and thus he had no well-founded fear of persecution for a refugee convention or other reason if returned to Iran. Further, he was not considered to be eligible for humanitarian protection since he had failed to show substantial grounds for believing that, if removed to Iran, he would face a real risk of suffering serious harm. At paragraph 45 of the Determination it was specifically found that the petitioner failed because his claims regarding his experiences in the Iran were not true.

[4] The petitioner applied for permission to appeal against that determination. The permission was refused at FTT level and the petitioner proceeded to apply for permission to the Upper Tribunal direct. It was contended that the FTT had failed to consider the relevant country guidance cases and in particular that there was a failure to consider "the reaction of the Iranian authorities" to the appellant on return when he is questioned due to his method of leaving Iran, the time spent abroad and the method of his return as a failed asylum seeker. There was a real risk the authorities would learn of the appellant's asylum claim based, as it was, on his political opinions and his opposition to the regime. The appellant is not expected to lie about his asylum claim. It was further argued that the Tribunal failed to consider that, even if the appellant passed through the airport, he would not be able to live openly in expressing anti-government views in light of the authorities' attitude towards those opposed to the regime. The Tribunal had erred by failing to consider that it was the reason "in the mind of the persecutor for inflicting that persecutory treatment" that was of relevance. Reference was made to H J (Iran) v Secretary of State for Home Department 2011 1 AC 596 and R T (Zimbabwe) v Secretary of State for Home Department 2013 1 AC 152.

[5] The Upper Tribunal judge refused permission to appeal by decision dated 21 February 2013. In paragraph 2 of the reasons it is stated:

"The appellant claimed that he dislikes the regime in Iran, put up opposition posters, was discovered and fled the country. The FTTJ rejected this claim in its entirety and the grounds do not raise any challenge to his reasons for doing so. The facts as found, therefore, are that the appellant does not show that he was opposed to the regime in anyway. The FTTJ found correctly at (43) that the case of SB (Risk On Return- Illegal Exit) Iran C G 2009 UK AIT 00053 indicated that the appellant would not be at risk on return as a failed asylum seeker even if he left illegally. The suggestion otherwise in the grounds at (i) is misconceived. The grounds at (i) also state that the FTTJ failed to refer to country guidance but no country guidance case is stated. There is no country guidance case that suggests that this appellant, having been comprehensively found to have lacked credibility, would face a risk on return".

Reason 3 states:

"The grounds at (i) also refer to H J (Iran) and R T (Zimbabwe) but these cases are not relevant where the appellant has not shown himself to harbour any anti-government sentiments whether kept discretely to himself or not. Those cases are not authority for the appellant being questioned about the content of his asylum claim on return or his not being expected to lie about his claim on return. It does not appear from the determination or any of the documents on the file that these lines of argument were pursued before the First Tier Tribunal in any event".

The petitioner's submissions
[6] Mr Winter submitted that the test in the case of Eba v Advocate General 2012 SC UKSC 1 was met in this case. There was a compelling reason for the court to interfere with the decision of the Upper Tribunal to refuse permission to appeal. Anxious scrutiny had not been applied to the petitioner's case. A failure to apply anxious scrutiny demonstrated that the decision was irrational which is in itself a form of perversity (see the opinion of Lord Hope in Eba paragraph 48). It was strongly arguable in this case that there has been an error of law which will have truly drastic consequences.

[7] Mr Winter focused upon the failure of the Upper Tribunal judge to assess properly whether the petitioner would be at real risk on return to Tehran Airport in his particular circumstances. Although he had been found to be untruthful in his claim that he had written anti-government slogans and was sought by the Iranian Authorities, on return to Iran he would have to explain the basis upon which he claimed asylum in the United Kingdom and would therefore require to explain the basis upon which he claimed asylum in this country. That, in turn, would lead the Iranian Authorities to consider him to be anti-regime and would expose him to the rigours of Iranian law.

[8] I was referred to the Country Guidance case SB (Risk On Return - Illegal Exit) Iran CG 2009 UKAIT 00053 and to paragraphs 11, 33, 34, 45 and 47 to 53. At paragraph 52 the Tribunal said this:

"What we derive from our above analysis is that the most likely position is as follows. Illegal exit is not a fact 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 risks. Normally an 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 on-going court proceedings, or somebody who has a previous criminal record or somebody who is viewed in a political light as having views contrary to that of the current regime".

[9] Mr Winter argued that the Upper Tribunal judge had failed to assess the risk to the petitioner in circumstances where, even though he had been disbelieved by the Tribunal, the perception of the Iranian Court to which he would be taken at Tehran Airport (see paragraph 47 and 48 of SB) would be of a person who had arrived illegally in Iran without a passport or identification documents having claimed asylum in the United Kingdom. The reasons for that claim would be canvassed and the petitioner would be perceived as somebody with anti-regime opinion.

[10] Mr Winter referred me to McGraddie v McGraddie 2013 1 WLR 2477 and the post script at paragraph 35 in the speech of Lord Reed who delivered the judgment of the court. There His Lordship states that the failure by appellate courts to apply relevant legal principles correctly may raise a point of law of general public importance. This, argued Mr Winter, was such a case and there was here a legally compelling reason to review the decision of the Upper Tribunal. He referred to the definitions of a compelling reason in the speech of Lord Dyson in R (Cart) v Upper Tribunal 2012 1 AC 663 at paragraph 131 and Lord Hope in Eba at paragraph 48. Mr Winter also argued that Lord Brown of Eaton -Under-Heywood's approach at paragraphs 99 and 100 was not necessarily the approach adopted by the whole court. He repeated the argument which he advanced before me in DKR v Secretary of State for the Home Department respondent 2013 CSOH 171at paragraph 10. I again reject that argument for the reasons I give at paragraphs 11 and 12 thereof. He also pointed out that in this particular case there had been only one substantive hearing of the petitioner's claim (at FTT level) and consequently there may be a "slightly less demanding standard" and more flexibility as to whether there is a compelling reason to seek judicial review.

The respondent's submissions
[11] Mr Gill moved me to refuse this petition on the basis that the test in Eba was not met. There was no compelling reason to justify the review of the refusal of the Upper Tribunal judge of permission to appeal. Under reference to paragraphs 52 and 53 of SB cited above, Mr Gill argued that, since the petitioner had been found to be untruthful in the claims he made in relation to his alleged anti-government activity, he would not be at any risk of questioning on return to Iran at Tehran Airport or elsewhere. The Tribunal in the country guidance case of SB had found in terms that Iranians facing enforced return do not, in general, face a real risk of persecution or ill-treatment, even if they exited Iran illegally (see paragraph 53 (ii)). The petitioner was not a person who could be viewed in a political light as having views contrary to that of a current regime (see paragraph 52).

[12] This was not a case in which any less stringent test ought to be applied. The petitioner's case had been fully considered at FTT level at which point he was found not to be credible. Thereafter the Upper Tribunal had considered the case. Accordingly this was a true second appeals case having been considered at two Tribunal levels. I was asked to follow the reasoning of Lord Doherty in Nabeel Yusuf Khan 2013 CSOH 84 at paragraphs 43 to 45. Mr Gill also argued that the failure to exercise anxious scrutiny did not equate with perversity as that word was used in the judgment of Lord Hope at paragraph 48 of Eba. He referred me to the opinion of Lord Armstrong in EP 2013 CSOH 99 at paragraph 44 where His Lordship did not consider that cases which pre-dated Eba and Cart provided assistance in determining concepts of perversity and prospects of success.

Discussion and Decision
[13] I have come to the view that the petitioner has not advanced a compelling reason justifying this court in reviewing the decision of the Upper Tribunal to refuse permission to appeal. The test in Eba is a stringent one. In order to succeed, the petitioner must demonstrate that his case is a rare and exceptional one and review is necessary in order to ensure that no compelling injustice occurs. A material error of law is not enough (see SA v SSHD CSIH 62 paragraphs 39 to 44). The point he raises must have high prospects of success (see Uphill v BRB (Residuary) Ltd 2005 1 WLR 2070 paragraph 24(1)). It is clear from the case of SB that illegal exit by itself is not a significant risk factor. However, a person returning to Iran who is viewed as having views contrary to that of the current regime would be at significant risk. Both H J Iran and R T Zimbabwe proceeded on the basis that the claimants in each case held genuine political beliefs or were in fact of a particular sexual orientation. Such persons could not be expected to lie or conceal their beliefs or sexual orientation in order to avoid persecution. In this case, the petitioner has been found, after the hearing at FTT, to have invented a story about displaying anti-regime slogans. As the Upper Tribunal judge pointed out, the grounds advanced to the Upper Tribunal did not seek to challenge that finding or FTT's reasons for coming to it. Nor did Mr Winter seek to advance any challenge thereto. The Upper Tribunal judge was, in my view, entitled to state, as she did in reason 2, that the facts as found are that the petitioner has not shown that he was opposed to the regime in any way. Accordingly, she was correct to go on in reason 3 to say that the cases of H J Iran and R T Zimbabwe were not authority for this petitioner to be questioned about the content of his asylum claim on return. If, as the FTT has found (which finding is not challenged), the reasons behind the petitioner's exit from Iran were invented, there would be no reason for the Iranian authorities to single out the petitioner as falling within a class of persons who might hold views contrary to that of the current regime. At paragraph 48 of SB the tribunal refers to the evidence of Dr Kakhki and his APCI review (co-written by Dr Molavi) to the effect that the discovery of illegal exit results in the person being arrested and taken to a special court located in Teheran airport. Dr Kakhki stated that this procedure was likely to be used not just for persons who arrive without a passport or any valid travel documents:

"but 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".

[14] At paragraph 49 the tribunal comment on this evidence and state:

"We do not know what is (are) the source(s) on which Dr Kakhki (and his colleague relies (rely) for his account and we note that he himself does not seek to address its apparent conflict in at least some respects with the descriptions given in other sources."

[15] In the section at paragraph 53 headed "Risk Factors Generally" the tribunal provides a summary of the issues of risk on return to Iran. No mention is made there of the court at Teheran airport. It is not clear to me that the tribunal accepted Dr Kakhki's evidence on this matter and whether therefore it would necessarily be the case that this petitioner would be arrested on arrival and taken to such a court and questioned, or whether, if he were to be so questioned, he would be at real risk.

[16] In these circumstances I am unable to conclude that the "compelling reason" advanced by the petitioner in this case would have high prospects of success and therefore would fall within the definition of compelling reason as set out in the cases as cited above. I consider that his prospects of success would be poor. I do not consider that the Upper Tribunal judge failed to apply anxious scrutiny to the petitioner's application for permission to appeal. The Upper Tribunal judge dealt with the point now advanced which was foreshadowed in the grounds for appeal to the Upper Tribunal in paragraph (i). That was despite the fact, as she pointed out, that this line of argument was not advanced before the FTT.

[17] In the circumstances I am unable to hold that the test in Eba is met and I will accordingly accede to the respondent's motion and dismiss this petition. I will reserve meantime all questions of expenses.