Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 180

P479/15

OPINION OF LORD BOYD OF DUNCANSBY

In the cause

SA

Petitioner;

against

THE ADVOCATE GENERAL FOR SCOTLAND

Respondent:

Pursuer:  Caskie;  Drummond Miller LLP

Defender:  Pirie;  Office of the Advocate General

23 December 2015

[1]        The petitioner is a citizen of Iran.  He first arrived in the UK on 25 January 2011.  He sought asylum.  His claim was refused on 19 February 2011.  He appealed to the First-tier Tribunal.  That appeal was refused on 30 March 2011.  Fresh representations were made on his behalf on 19 August 2011 and refused on 2 September 2011.  Further representations were made on 28 August 2013.  On 17 February 2015 the Secretary of State decided that the submission did not amount to a fresh claim within the meaning of paragraph 353 of the Immigration Rules.  It is that decision which the petitioner challenges in this judicial review.

[2]        The original claim for asylum in 2011 was based on three reasons for not being able to return to Iran.  One of these was departed from at the FTT.  The remaining two were first, that the petitioner had had sexual relations with a named girl outwith marriage.  The girl had told her mother.  As a result the police were informed and he was told by the girl that the police would come to arrest him.  He fled to an area near the border and after two months left Iran.  Secondly, he said that he had been selling DVDs and CDs of pornography and banned music.  The police had discovered this when they came looking for him in connection with his sexual relationship.

[3]        The FTT judge rejected both claims.  In doing so he referred to the grounds narrated above and found that it was a fabrication designed to bring the petitioner within the convention (paragraph 23).  He determined that the account so far as it related to the matters in which the petitioner had based his asylum claim was not credible and he was not prepared to accept that any of them took place, (paragraph 36).

[4]        The factors which the petitioner relied upon in his fresh submissions to the Secretary of State were that he had exited Iran illegally, that he had claimed asylum in the United Kingdom, that he was of Kurdish origin and that he had not completed his military service in Iran as a consequence of which he was likely to face prosecution.  He also raised a health issue which is not relevant for these purposes.  The submission was accompanied by an affidavit dated 18 February 2013 from the petitioner and a report by Mr Mohammad H Nayyeri dated 30 June 2013.  That report set out Mr Nayyeri’s opinion on the risks the petitioner faced on his return to Iran.  Mr Nayyeri has been accepted by the Upper Tribunal as an expert able to give opinion evidence on conditions in Iran.  The Secretary of State concluded that the submission was not significantly different from the material which had previously been considered and therefore did not amount to a fresh claim.  It was rejected.

The law - approach of this court

[5]        Parties were agreed that the correct approach is set out in Dangol v The Secretary of State for the Home Department 2011 SC 560 per Lord Bonomy at paragraph 7.  The approach is usefully summarised by Lord Bannatyne in ABC petitioner [2013] CSOH 32 at paragraph 11:

“[11]    Before turning to the parties’ detailed submissions it is perhaps convenient to set out that parties were agreed on certain aspects of the law:  first as regards the approach the court must adopt in cases of this type:

1.         The test to be applied by the court in a judicial review of a refusal to treat further representations as constituting a fresh claim is the Wednesbury test (see: WM (DRC) v The Secretary of State for the Home Department [2006] EWCA Civ 1495 at paragraph 9 and O v The Secretary of State for the Home Department [2010] CSIH 16 at paragraph 22).

2.         The decision remains that of the Secretary of State and the court may not substitute its own decision (see: Dangol v Secretary of State for the Home Department [2011] CSIH 20 at paragraph 7).

3.         The court must ask itself two questions:

1.         Has the Secretary of State asked himself the correct question? – that is, whether there is a realistic chance that an immigration judge, applying the rule of anxious scrutiny, will accept that the petitioner will be exposed to a real risk of persecution on return.

2.         In addressing that question has the Secretary of State satisfied the requirement of anxious scrutiny? (see: WM (DRC) at paragraph 11, O at paragraph 22 and Dangol at paragraph 7).

Secondly, parties were agreed as to the approach to the issue of anxious scrutiny:

1.         The Secretary of State’s decision will be irrational if it is not taken on the basis of anxious scrutiny (see: Dangol at paragraph 7).

2.         Anxious scrutiny means that the decision letter must demonstrate that no material factor that could conceivably be regarded as favourable to the petitioner has been left out of account in the review of the evidence (see: Dangol at paragraph 9).

3.         But anxious scrutiny does not mean the Secretary of State must show undue credulity to the petitioner’s account (see: Dangol at paragraph 9).”

[6]        Mr Caskie drew my attention to the opinion of Lord Hodge in R v Secretary of State for the Home Department 2011 SLT 970 where, commenting on the decision in Dangol, he considered that it was difficult to foresee circumstances in which the court would consider that there was more than a fanciful prospects of success in an appeal to the FTT but nonetheless hold that the Secretary of State could reasonably reach the opposite view.  Thus in practice the question, however posed, was likely to lead to the same result, (paragraphs 18 and 19).  That may be right but as Lord Hodge acknowledged there is an important conceptual difference which requires to be observed.  The question is not whether the court considers that there is a realistic prospect of success in an appeal to the FTT but whether the Secretary of State was unreasonable in reaching the view that there was not.

[7]        Mr Caskie also submitted that the Secretary of State had to consider the submission from the perspective of an immigration judge who would be most favourable to the petitioner.  As the petition puts it:

“an IJ being as favourable as possible to the petitioner without being perverse (just) would be entitled to conclude the petitioner should be granted leave to remain”.

Mr Caskie submitted that this was the only logical approach.

[8]        For myself I do not think it necessary for the Secretary of State to conjure up a judge who is likely to be favourable to the petitioner any more than she should consider it from the perspective of an IJ favourable to her.  The test is a simple one:  whether there is a realistic prospect, that is more than a fanciful prospect, of success in an appeal before an IJ.  That should be sufficient to encompass the range of judicial approach which one might expect to encounter in the FTT.

[9]        Mr Pirie submitted that even if the Secretary of State had erred, the court required to consider whether the error was material;  A v Secretary of State for the Home Department 2015 SLT 306 per Lady Smith at paragraph 23.  I did not understand Mr Caskie to dispute this.

[10]      A side issue arose in the course of submissions about whether or not the petitioner could be expected to lie if he was asked on his return at the airport whether or not he had claimed asylum in the UK.  Mr Caskie said he could not be expected to deny it if questioned on his return.  Mr Pirie suggested that was not right and referred me to the decision of an Extra Division in W v Secretary of State for the Home Department 2013 CSIH 90 where Lord Menzies drew a distinction between questioning at an airport and somebody required to live in the country whilst denying an important element of their personality such as their sexuality or their political affiliation (paragraph 5).  These comments are of course obiter.  There is a clear distinction between these situations but I question whether in practice it is right to expect someone to lie, or perhaps more accurately being able to sustain a lie, under questioning from an immigration official at an airport.

The law - country guidance cases

[11]      The relevant CG is SB (risk on return – illegal exit) Iran CG [2009] UKAIT 00053.  The relevant part of that guidance for these purposes is to be found in the head note at paragraph (ii) as follows:

“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.”

[12]      The status of CG cases was discussed by the Court of Appeal in R (Iran) v Secretary of State for the Home Department 2005 IAR 535.  At paragraph 21 of the Court of Appeal’s judgment, Brooke LJ sets out the practice direction (PD) of the then Immigration Appeal Tribunal.  Paragraph 18.2 of the PD states that a CG case is authoritative in any subsequent appeal so far as that appeal relates to the CG issue in question and depends upon the same or similar evidence.  The court approved a statement on the role of CG cases made by Ouseley J at the end of his term as president of the IAT in NM and Others (Lone Women – Ashraf) Somalia CG 2005 UKIAT 00076.  At paragraph 140 of the judgment, quoted at paragraph 26 in R (Iran), Ouseley J said CG cases should be applied except where they do not apply to the particular facts which the tribunal faces and can properly be held inapplicable for legally adequate reasons.  He continued:

“The system does not have the rigidity of the legally binding precedent but has instead the flexibility to accommodate individual cases, changes, fresh evidence and other circumstances which we have set out.”

At paragraph 27 Brooke LJ specifically endorses the statement that any failure to apply a CG decision, unless there was good reason explicitly stated for not doing so, would constitute an error in law in that a material consideration had been ignored or legally inadequate reasons for the decision had been given.

Submissions for petitioner

[13]      Mr Caskie submitted that on the evidence before the Secretary of State, she should have reached the conclusion that there were reasonable prospects of success before an immigration judge.  It was unreasonable to conclude otherwise.  The factors that he founded upon were first, the petitioner’s ethnicity.  He conceded that on its own, this was not sufficient.  However, combined with the fact of his illegal exit from Iran together with the conditions in prison or detention there were reasonable prospects of success in demonstrating a real fear of persecution.  If the petitioner was detained, prison conditions were such that there would be a breach of article 3 ECHR.  He submitted that the Secretary of State had not considered the evidence contained in the expert report about illegal exit and those claiming asylum in a foreign country returning to Iran.  While the Secretary of State had considered the issue of ethnicity she had not looked at it in conjunction with these other factors.  He also conceded that no issue arose regarding the petitioner’s failure to complete his military service.

[14]      Mr Caskie took me through Mr Nayyeri’s report in some detail.  He submitted that a person who left Iran illegally, had spent a long time in the UK and claimed asylum here, had a passport without an exit visa and was a Kurd he was at risk of being detained on his arrival back in Iran.  If that was the case, then that was sufficient to make him a refugee.  Dealing with the Secretary of State’s decision letter, he accepted that the Secretary of State had properly dealt with the issue of the petitioner being a Kurd and also with the fact that he had not completed his military service.  Where the Secretary of State had gone wrong, was that she had not looked at what had happened since SB.  In his submission the situation had moved on.  She did not explain why she hung her hat on SB and said nothing else.

Submissions for respondent

[15]      Mr Pirie submitted that there was no error of law.  If there was an error of law, it was not material.  He took me through the decision-letter and sought to demonstrate the flaws in the report by Mr Nayyeri.  I refer to the most pertinent ones below.  In his original claim for asylum, the petitioner did not suggest that his experience as a Kurd led to a fear of persecution.  He did not found on the fact that he had left Iran illegally.  Nor did he explain how he managed to leave Iran and then return there before finally leaving.  There was no finding in the decision of the FTT judge that the petitioner had left Iran illegally.  Given the finding on credibility, it was difficult, if not impossible, to see how the petitioner could establish the primary fact that he founded upon, namely, that he had exited Iran illegally.  It could not be said that the Secretary of State had not taken Mr Nayyeri’s report into account.  The decision-letter was peppered with references to it.

Decision

[16]      There are many criticisms that can be made of Mr Nayyeri’s report.  He appears to found his opinion to some extent on the assumptions that the petitioner had been dealing in banned and pornographic CDs and DVDs and that he had had a sexual relationship with a girl which brought him to the attention of the police.  Both of these claims were found to be untrue by the FTT judge.  While it appears from paragraph 2 of the report that Mr Nayyeri had a copy of the FTT decision, he makes no reference to it in the body of his report.  Nor does he make reference to SB which one would think would be his starting point given the opinion that he was asked to make.  At paragraph 80 Mr Nayyeri quotes an evaluation of a COI report on Iran by Dr Molavi and Dr Khakhki from the Centre of Iranian Studies and Durham University.  He seems unaware that this evidence was before the Upper Tribunal in SB and along with other evidence, including from Dr Khakhki, was assessed by them.  Much of the evidence which Mr Nayyeri founds upon predates SB and some other evidence appears unsourced. 

[17]      On the other hand there is some evidence which postdates SB.  In particular the passages at paragraphs 61-68 contain information regarding the fate of a young man of Kurdish origin, returned to Iran from Norway on 9 February 2011.  He is said to have been in danger of torture and ill-treatment at Tehran’s Evin prison.  That evidence comes from Iran Human Rights (IHR) but also appears to be vouched by Amnesty International (paragraph 66).  A spokesman for IHR, Mahmood Amiry-Moghaddam, is quoted as saying that Iranian authorities had recently “signalized” that Iranians who had sought asylum abroad should be charged with “dissemination of false propaganda against the Islamic Republic of Iran”.  Mr Amiry‑Moghaddam concluded that seeking asylum by itself could be a reason for the Iranian authorities to subject asylum seekers “who are extradited to Iran” to persecution, imprisonment and ill-treatment.  He called on all western countries to immediately stop extradition of Iranian asylum seekers to Iran.  At paragraph 68 Mr Nayyeri quotes an article written by a former IRI Supreme Court judge in a daily newspaper published by the Iranian government in February  2011 which stated that failed asylum seekers could be prosecuted for making up accounts of alleged persecution.

[18]      In R (Iran) the court held that a failure to follow a CG case would be an error of law unless there was good reason, explicitly stated, for not doing so (paragraph 27).  Equally where it appears that a person claiming asylum puts forward what he contends is a good reason for not following a CG case the decision maker is bound to consider it.  A failure to do so would be an error of law.

[19]      In the decision letter the Secretary of State deals at length with the issue of the petitioner’s Kurdish ethnicity and also the fact that he had not completed his military service.  In doing so, she had regard to other material.  She quoted a report published on 11 February 2012 by the Iran Human Rights Center entitled “On the Margins:  arrest, imprisonment and execution of Kurdish activists in Iran today”.  She also quoted the CIA World Fact Book dated 22 August 2013 regarding military service.  In short she dealt comprehensively with these issues to the extent that Mr Caskie accepted that she had dealt appropriately with them.

[20]      In contrast there is no reference to the part of Mr Nayyeri’s report which might provide evidence that SB should not be followed.  The issue of possible persecution or ill-treatment on return as a Kurdish failed asylum seeker who exited Iran illegally is dealt with at the foot of page  8 and the top of page 9 of the decision letter.  The letter simply quotes SB and a short passage of the FTT decision.  It does not consider whether there is any evidence which might question the guidance.  There is no reference to the matters I have highlighted above.  I do not consider that the catchall phrase at page 10 that the expert report has been carefully examined properly deals with these issues.  In my opinion the Secretary of State has not demonstrated that she has exercised anxious scrutiny and accordingly there is an error of law.

[21]      Mr Pirie submits that even if there is an error of law, I should find that it is not material.  There will be occasions where that is appropriate.  In A v Secretary of State the Extra Division held that the judge at first instance should have gone on to determine whether the error of law was material.  In that case the issue was whether there were reasonable prospects of success before a judge in establishing an article 8 claim outwith the rules.  All the factors which the Secretary of State would have before her in determining whether there were real prospects of success were available to the court.  As I read it, it was not a difficult judgment for the court to make.  In that situation there was no point in sending the decision back to the Secretary of State to remake.

[22]      Mr Pirie submitted that the starting point for a judge in considering the fresh submission would be the credibility findings of the FTT judge.  Accordingly the petitioner would have difficulty in proving the primary fact that he relied on, namely that he had exited Iran illegally.  I am not convinced that this would be the problem that Mr Pirie foresees.  It is not in dispute that the petitioner has claimed asylum.  Nor are the basic prison conditions a matter of dispute.  These are not dependent on the petitioner’s credibility.  As to whether he exited Iran illegally, I was informed that statements to that effect could be found in his original statements to immigration authorities.  And while there is no explicit reference to a finding that the petitioner did exit Iran illegally, the fact that the FTT dealt with SB in some detail, suggests that the judge accepted that he had exited Iran illegally.

[23]      There is of course the criticism that Mr Pirie made of the report.  That criticism was not contained in the letter.  Nevertheless it is trenchant.  But if there is evidence that asylum seekers who have left Iran illegally are subject to detention and prosecution on return then at this stage I cannot say that there is not a real prospect of success before an immigration judge.

[24]      In my opinion the decision is one for the Secretary of State to remake.  Parliament has, no doubt for good reason, imposed that duty upon her.  She may well have access to further information, such as the material she quoted in respect of military service and ethnicity.  She will be able to consider the evidence thus far presented in the round with the other evidence available to her.  She will of course require to give the submission anxious scrutiny.

[25]      Accordingly, I shall repel the pleas-in-law for the respondent and reduce the decision of 17 February 2015.