Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 42

P1038/14

OPINION OF SHERIFF N M P MORRISON, Q.C.,

Sitting as a Temporary Judge

In the petition of

S Z

Petitioner;

against

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent:

Petitioner:  Mullan; Drummond Miller LLP (for Latte & Co, Solicitors, Glasgow)

Respondent:  Komorowski; Office of the Advocate General

21 April 2015

The essential facts

[1]        The petitioner seeks to reduce the decision of the Secretary of State for the Home Department of 16 April 2014.  That decision was made following fresh representations on behalf of the petitioner made on 19 March 2014 including representations about the petitioner’s sur place activities.  The only issue at the first hearing in this petition for judicial review was about the Secretary of State’s treatment of those activities in her decision. 

[2]        The petitioner is a 31 year old Iranian Kurd who arrived in the United Kingdom on 6 September 2011 and claimed asylum.  His various claims and appeals were all refused and dismissed.  He then made the further representations.  The Secretary of State’s decision was not to reverse the earlier decision and she determined that the fresh representations did not amount to a fresh claim.

[3]        Counsel were in agreement about the law.  The facts on which the petitioner relied, before me, in relation to his sur place activities were as follows:-

(1)        The pursuer attended a demonstration on 30 December 2013 in Piccadilly Gardens, Manchester, being a protest against the Iranian regime and part of organised European-wide protests. 

(2)        At the end of the Manchester protest, some people burned a photograph of the supreme leader of Iran.  It was accepted that the petitioner was not one of them.

(3)        Photographs were taken of the protest by members of the PJAK, the Party of Free Life of Kurdistan.

(4)        The petitioner could be identified in some of the photographs.

(5)        The petitioner is seen in some of the photographs holding a placard or a banner and a PJAK flag. 

(6)        Some of the photographs appeared on the PJAK public website and in a YouTube video.  It was accepted that the pursuer could not be identified in the photographs or in the video.

(7)        This was the only demonstration and political activity in which the petitioner had engaged and the only activity relied on by the petitioner as his political profile. 

(8)        The demonstration was not outside any Iranian diplomatic property.

(9)        It was accepted that there was no evidence of media interest in the UK or Iran in this demonstration.

What the Secretary of State has to do

[4]        In dealing with fresh representations, under paragraph 353 of the Immigration Rules 1994 as amended, the Secretary of State will consider any further submissions and, if rejected, will determine whether they amount to a fresh claim.  They will amount to a fresh claim if they are significantly different from the material previously considered.  If not, the Secretary of State has to go no further.  That paragraph goes on to provide-

“The submissions will only be significantly different if the content –

1. has not already been considered; and
2. taken together with previously considered material, created a realistic prospect of success, notwithstanding its rejection.”

In this case the material had not already been considered. 

[5]        In WM (DRC Congo) v Secretary of State for the Home Department, [2006] EWCA Civ 1495, Buxton LJ said of this paragraph, at paragraph 7 of his judgment, that it only imposed a modest test:– first, whether there was a realistic prospect of success in an application before an adjudicator; secondly, the adjudicator has only to think that there is a real risk of the applicant being persecuted on return; and thirdly, the Secretary of State, adjudicator and the court must be informed by the anxious scrutiny of the material that is axiomatic in decisions that, if made incorrectly, may lead to the applicant’s exposure to persecution. 

[6] The phrases “realistic prospect of success” and “anxious scrutiny” have themselves been subjected to explanation and interpretation.  In R (AK (Sri Lanka)) v Secretary of State for the Home Department, [2010] 1WLR 855, 869, para. 34, Laws LJ said that ““realistic prospect of success” means only more than a fanciful such prospect”.  In MN (Somalia) v Secretary of State for the Home Department [2014] 1WLR 2064, Lord Carnwath JSC, in the UK Supreme Court in a case on appeal from the Inner House of the Court of Session, repeating what he said in an earlier English case about “anxious scrutiny”, said that, because of the very special human context, decisions must “show by their reasoning that every factor which might tell in favour of the applicant has been properly taken into account.” 

What the court does

[7]        As this is a judicial review, the decision of the Secretary of State is challengeable only on Wednesbury principles: WM, above, at para. 8.  In applying these principles, the Inner House, in Dangol v Secretary of State for the Home Department, 2011 SC 560, 564, para. [7], set out the approach to be adopted as that set out in FO, Petr, 2010 SLT 1087 applying the guidance set out by Buxton LJ in WM, above, at paras. 10 and 11 of that decision.  The position may be summarised as follows.  A decision will be irrational if not taken on the basis of anxious scrutiny.  The court must therefore address two points:-  First, has the Secretary of State considered whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return?  Secondly, in addressing that question, by evaluation of the facts and the legal conclusions from them, has the Secretary of State satisfied the requirement of anxious scrutiny?  If the court is not satisfied that the answer to both is in the affirmative, it will have to grant the application for review of the Secretary of State’s decision.

The criticisms of the Secretary of State’s decision

[8]        It was accepted that the Secretary of State had identified the correct tests.  It was the application of the tests that was challenged.  The criticisms were directed at the last sentences (emphasis added) in each of paragraphs 23 and 25 of the Secretary of State’s decision of 16 April 2014:-

“23. It is also noted that the photograph showed your client holding a PJAK flag.  Some other photographs show him holding a placard showing five bodies hanging from a gallows and in others he is holding a banner saying “Martyrs of Kurdistan’s liberation always remembered”.  No evidence has been supplied that your client took part in organising the demonstration or addressing the crowd.  It is also noted that although you have provided evidence showing that a photograph of the Iranian leader was burned during the demonstration you have not provided any evidence indicating your client was directly involved in burning the photograph.

…

25.  It is noted that you have submitted an extract from the PJAK website which refers to the demonstration in Manchester and has several pictures of the demonstration  It is noted that you have also provided a link to a Youtube video of the demonstration.  However it is noted that no evidence has been submitted to evidence that the demonstrations attracted media attention in the UK or Iran.”

[9]        I was referred to the Country Guidance case of BA (Demonstrators in Britain – Risk on Return) Iran CG, [2011] UKUT 36 (IAC), about the situation in Iran described in paragraphs 15 to 23 and to what was said about the risk on return to Iran having regard to sur place activities.  Five factors were identified (para. 64), the first of which concerns the nature of the sur place activity.  Under that head, the second bullet point deals with the role of demonstrations and political profile–

“can the person be described as a leader; mobiliser (e.g. addressing the crowd), organiser (e.g. leading the chanting); or simply a member of the crowd; if the latter is he active or passive (e.g. does he carry a banner); what is his motive, and is this relevant to the profile he will have in the eyes of the regime”.

[10]      The submission was that, as someone who had illegally left Iran, on return to Iran from Britain as a failed asylum seeker, the petitioner would be a person of interest.  In addition, he had carried out sur place activities in the United Kingdom.  There was, therefore, because of the combination of these factors, a real risk that he could be identified on return and a real risk of his being persecuted.  My attention was drawn to SB (risk on return – illegal exit) Iran CG, [2009] UK AIT 53, at para.52 and 53(ii), where it is stated that-

“Having exited Iran illegally is not in itself 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 risk factor adding to the level of difficulties he or she is likely to face.” 

At paragraph 53(v) in that case it is mentioned that “Being accused of anti-Islamic conduct likewise also constitutes a significant risk factor”.

[11]      It was clear from paragraphs 22 to 25 of the decision of the Secretary of State (which deals with the nature or type of sur place activity by the petitioner) that the Secretary of State failed to appreciate the nature of the protest and failed to appreciate the petitioner’s involvement.  The last sentence in paragraph 23 of the decision was criticised because it showed a failure to appreciate the petitioner’s involvement.  He was involved.  He was an active participant in that he was carrying a banner.  The last sentence of paragraph 25 was also criticised because it showed that the Secretary of State had not considered new media and the ability of Iran to use their own photographs.  While it was not possible for the petitioner to prove that Iranian authorities were present at the demonstration taking photographs or names, there was, however, a reasonable inference that they would be because the protest was organised, coordinated, not spontaneous, and European-wide.

The Secretary of State’s response

[12]      For the Secretary of State, it was submitted that everything the petitioner relied on had been taken into account.  There was no criticism by the petitioner of factual accuracy.  The Secretary of State had not left out anything of importance.  The petitioner was not involved directly or indirectly in the demonstration; his role was limited.  The Secretary of State had regard to the BA decision, above, and considered the petitioner’s case in relation to the factors in paragraph 64 of that decision.  In paragraph 23 of her decision letter, the Secretary of State considered the nature of the petitioner’s sur place activities.  She had regard to the issue of identification.  Paragraph 27 of the Secretary of State’s decision letter showed that consideration had been given to paragraph 66 of the BA case.  That latter paragraph referred to the “ability of the Iranian regime to identify all returnees who have attended demonstrations, particularly given the number of those who do, on return, remains limited by the lack of facial recognition technology and the haphazard nature of the checks at the airport”.  The paragraph goes on –

“We conclude therefore that for the infrequent demonstrator who plays no particular role in demonstrations and whose participation is not highlighted in the media there is not a real risk of identification and therefore not a real risk of consequent ill-treatment, on return.”

[13]      In relation to the petitioner’s argument that he faced an increased risk because he had illegally left Iran combined with his sur place activity of taking part in a demonstration, that left out other parts of the jigsaw.  These were the Iranian authorities’ lack of facial recognition technology, there was little likelihood of the petitioner being identified from photographs or videos, the appellant could not be identified in those photographs or the video, the petitioner’s role was a passive one in the demonstration, and there was no mainstream media attention.  It was clear from paragraph 47 of the Secretary of State’s decision letter that the correct tests had been applied. 

[14]      Having regard to paragraph 53(ii) of the decision in SB, above, the petitioner did not face a risk even if he had left Iran illegally.  There was not a likelihood of a risk from Iranian officials taking photographs because of what was said in paragraph 66 of the BA decision, above, because there was not a real risk of identification for the infrequent demonstrator who played no particular role in demonstrations.  Paragraph 29 of the Secretary of State’s decision letter showed that consideration was given to the fact that there was no mainstream media interest and to the fact that, although Iranian authorities may gather intelligence on demonstrations, they did not have the technology to identify suspects.  The BA decision, above, at paragraph 67, makes it clear that there was no evidence that, having exited illegally, a person might be subjected to persecution and, the mere fact that a person is “returning from Britain does not lead to a risk of persecution”.  These points also were considered by the Secretary of State in her decision letter at paragraphs 30 to 34 and 46 and 47.

Has the Secretary of State applied the tests correctly?

[15]      It does not seem to me that the Secretary of State has failed properly to appreciate the nature of the protest in Manchester or failed to appreciate the nature of the petitioner’s involvement.  It is clear from the decision letter that regard was had to the factors in paragraph 64 of the BA case.  The petitioner was not involved in burning the photograph of the Iranian leader and his role in the demonstration was a passive one involving holding a placard or a banner and a flag.  There was no media interest.  Having regard to what is said in paragraph 66 of the BA case quoted at paragraph [12], above, which the Secretary of State did, there was no real risk of the petitioner being identified or of ill-treatment on his return because of the nature of his involvement in the demonstration.

[16]      The petitioner’s illegal exit from Iran had already been considered by the Immigration Judge.  I note that in paragraph 52 of the SB case, above, it is stated that, in Iran, normally illegal exit “is considered as an offence attracting only a fine involving a relatively modest sum of money”.

[17]      Of course, the petitioner relies on the combination of these factors and of the likelihood of being identified as a consequence.  The cases of SB and BA acknowledge that there can be an increase in risk where there is more than one factor.  In this case, neither factor of itself presents a real risk of persecution on return.  There would have to be a real risk of identification because of the combination of these factors.  It is clear that the Secretary of State considered the issue of identification in the decision letter: there was no media attention in the UK or Iran (para. 25) and, in paragraphs 26 to 29, the identification risk was again considered.  Paragraph 66 of the BA decision, to which the decision letter refers at paragraph 27, makes it clear that Iran lacked facial recognition technology.  Assuming that a reasonable inference could be drawn that the Iranian authorities were photographing the Manchester demonstration, the lack of that technology and the low profile of the petitioner at that demonstration do not indicate that the petitioner would attract attention from the Iranian authorities.  These points were considered in paragraph 29 of the decision letter.  (I am not convinced that a reasonable inference can be drawn that the Iranian authorities would have been present and taking photographs of the Manchester demonstration.)

[18]      As for new media, it seems to me that the Secretary of State had regard to the photographs on the PJAK website and the YouTube video in paragraphs 25 and 29 of the decision letter and concluded, reasonably, that the Iranian authorities did not have the technology to identify the petitioner.  Furthermore, the petitioner could not be identified from those photographs or the video.

[19]      In my opinion, the Secretary of State has taken into account all that was relied on by the petitioner and did not leave anything out.  The nature of the demonstration and the petitioner’s involvement were correctly described and considered.  The combination of the illegal exit, being a failed asylum seeker returning from Britain, and the sur place activities, was considered in the light of the risk of identification.  The law was properly applied.  The Secretary of State considered whether there was a realistic prospect of an adjudicator thinking that the applicant would be exposed to a real risk of persecution.  Applying the facts and the law, there was no real risk of the petitioner being identified and facing persecution, and there was no real prospect of success before the adjudicator.  In my opinion, the Secretary of State reached that conclusion after anxious scrutiny of every factor which might tell in favour of the petitioner.  In my opinion the Secretary of State reached the correct conclusion, and success before the adjudicator was not more than a fanciful prospect.

[20]      Accordingly, I repel the petitioner’s plea-in-law, sustain the respondent’s second plea-in-law and dismiss the petition.