IMMIGRATION AND ASYLUM CHAMBER
THE IMMIGRATION ACTS
Heard at: Birmingham Decision Sent: On: 6 June 2013 On: 16 July 2013
Upper Tribunal Judge Pitt
Secretary of State for the Home Department
For the Appellant: Mr Bedford, instructed by Sultan Lloyd Solicitors
For the Respondent: Ms Plaess, Senior Home Office Presenting Officer
1. This is an appeal against the determination dated 20 December 2012 of First-tier Tribunal Judge Chohan which refused the appellant’s asylum and human rights appeal.
2. The grounds of appeal dated 16 January 2013 state that the First-tier Tribunal erred as follows:
“1. In that the learned Judge failed properly or at all to consider the risk top (sic) which A would be exposed for imputed political opinion on return to Iran during questioning at the airport as a failed asylum seeker in the light of the Supreme Court’s decision in RT (Zimbabwe) v SSHD  3 WLR 345 and in the light of the Strasbourg Court’s findings at §54 of RC v Sweden  ECHR 307 that any one who in any way opposes the current regime risks detention, ill-treatment or torture;
2. The said ground of appeal raises a novel and important point of principle or practice in the light of the decision by order dated 9 January 2013 of Sir Richard Buxton in an Iranian appeal in the Court of Appeal that it satisfies the second tier appeal rule (order attached).”
3. The grounds of appeal enclosed a skeleton argument dated 23 November 2012 and grant of permission to appeal dated 9 January 2013 from the Rt Hon. Sir Richard Buxton in the case referred to in paragraph 2. I will refer to that other case as “AA (Iran)”, the full reference on the documents being C5/2012/2711.
4. Mr Bedford informed me that AA (Iran) had been refused permission to appeal by the Court of Appeal on 28 March 2013. Mr Bedford accepted that nothing in the original grounds of appeal, set out above, could amount to a sustainable challenge to the decision of Judge Chohan. Undaunted, he sought to make a number of applications in order to vary his grounds of appeal. The first suggestion variation was that, in the light of the country material contained at pages 12, 24, 25, 27 and 28 of the appellant’s bundle, the First-tier Tribunal had erred in the assessment of risk on return.
5. I declined to vary the grounds to include this challenge. There was no reason why it could not have been made in the original grounds but it was not. There is no explanation for this. There was no explanation of why this application to vary the grounds was made only on the day of the hearing. Mr Bedford knew as of 28 March 2013 that the grounds upon which permission had been granted were rejected by the Court of Appeal in AA (Iran) and that he would have to vary the grounds in this appeal if he was to have any chance of success. In addition, the country evidence in the appellant’s bundle relied on in Mr Bedford’s argument covers only the well-known and accepted evidence of the repressive nature of the Iranian regime and abuse of those suspected of opposition. This appellant was not found to have anything in his background that might lead to his being of interest on return and that assessment included his having left Iran illegally. There was no challenge to the credibility findings of the First-tier Tribunal. It was my view that a challenge based only on this background evidence had to fail, even had it been brought timeously.
6. It appeared to me that Mr Bedford accepted that this first variation of the grounds had to fail as he was ready with a second submission to the effect that Judge Chohan had erred in failing to consider the implications of the Iran Operational Guidance Note dated October 2012, in particular 3.15.5. This was a public document of which Judge Chohan could be expected to have taken judicial notice even though it had not been in the materials before him and he had not been specifically referred to it.
7. There were obvious difficulties with this submission. The original grounds of appeal upon which permission was granted did not argue that Judge Chohan erred in failing to consider the OGN. There was no reason why they should not have done so at any time prior to the hearing before me, and, as above, this was additionally the case after the failure of Mr Bedford’s arguments in AA (Iran) on 28 March 2013. Secondly, the OGN also does not take the assessment of risk of return any further given the adverse credibility findings of the First-tier Tribunal. It contains the accepted country evidence on the repressive nature of the regime and abuses that occur in Iran that were elsewhere in the evidence before the First-tier Tribunal. Mr Bedford referred to paragraph 3.15.5 which covers the likely treatment on return of those who have exited illegally. It does not state that illegal exit will lead to significant mistreatment. Rather, prosecution for illegal exit includes an assessment of the circumstances of the individual. It takes the question of mistreatment on return no further and cannot show an error in the decision of Judge Chohan who found at  that this appellant would not face a risk on return merely because he had exited illegally. I declined to vary the grounds to include a challenge on the basis of the OGN for these reasons.
8. I also rejected a third formulation for a variation of the grounds of appeal which included an application to admit new evidence. Mr Bedford applied to admit a Country of Origin Information Report (COIR) dated January 2013, with particular reliance on paragraph 32.27. This states that an Amnesty International report dated February 2012 provided information from a report by a Swiss refugee agency which had quoted an unnamed Iranian judge. This unnamed judge spoke of failed asylum seekers having carried out “propaganda against Iran” and trying to “destroy the reputation of Iran” if they made untrue statements as part of their asylum claim about mistreatment by the state. In order to stop this, the individuals “will” be detained until the authorities establish that they were not involved in political activity. If they had brought the state into disrepute, a judge should pass a sentence. Mr Bedford argued that it could be inferred from this paragraph, following the principle of RT (Zimbabwe) v SSHD  3 WLR 345, that a failed asylum seeker who had left Iran illegally would have to lie about the fact of a failed asylum claim and show pro-regime views in order to avoid being imputed with an anti-regime political opinion which would result in mistreatment.
9. It will be obvious that the COIR was not before Judge Chohan as it had not been published at the time of the hearing before him. I suggested to Mr Bedford that it therefore could not show an error in the decision of the First-tier Tribunal. He maintained that it should be admitted and argument allowed on it nevertheless on an exceptional basis as it was “compelling” evidence. He also referred to Chikwamba v SSHD  UKHL 40 and suggested that the principle of not expecting someone to return merely to seek entry clearance was analogous to not expecting someone to make a fresh claim merely on the basis of new country evidence that was available to me. I did not accept the analogy; the former arose from a policy applied inflexibly and therefore unlawfully by the state. The latter is a legal principle at the heart of the error of law jurisdiction. The two are simply not the same or analogous. Mr Bedford referred to Ravichandran  Imm AR 97 and submitted that I had to decide the appeal as of the date of hearing. That argument again ignores the principle of the error of law jurisdiction that requires me to assess the decision of the First-tier Tribunal on the basis of the evidence that was before it and is not subject to the Ravichandran principle. I could not see anything in Mr Bedford’s arguments that indicated that this material should not form part of a fresh asylum claim by the appellant rather than it having any relevance to the decision of Judge Chohan.
10. In addition, there was no attempt to seek permission to admit this new evidence in line with Rule 15 of the Procedure Rules. The document had been available since January 2013. Mr Bedford had known of the failure of the arguments in AA (Iran) since 23 March 2013 but had not attempted to seek permission to admit a document essential to the variation of his grounds of appeal until the hearing before me. For these reasons, I declined to admit the COIR and declined to vary the grounds in order to include argument upon it.
11. For what it is worth, it did not appear to me that Mr Bedford’s arguments could have succeeded even if I had allowed the grounds to be varied to include challenges based on the OGN and the COIR. As in AA (Iran), this appellant was found wholly incredible. He is returning only as a failed asylum seeker who left Iran illegally. Even had Mr Bedford’s current arguments been put to Judge Chohan (which they were not), the real thrust of Mr Bedford’s case is founded on paragraph 32.27 of the COIR. It is difficult to see how one reference from an unnamed judge in a report from a Swiss refugee agency and an article written by a former Iranian Supreme Court Judge to imputed negative political opinion being attributed to returned failed asylum seekers would be sufficient to show a risk on return by way of imputed political opinion for all failed asylum seekers who exited illegally. I did not have the transcript or decision before me but it appeared to me very likely that the Court of Appeal found the same in AA (Iran).
12. For all of these reasons I did not find that the determination of the First-tier Tribunal disclosed an error on a point of law such that it should be set aside.
13. The First-tier Tribunal did not make an error on a point of law such that the decision should be set aside. The decision of the First-tier Tribunal shall stand.
Signed: Date: 7 July 2013
Upper Tribunal Judge Pitt