Factual and Procedural Background
Two appellants, both nationals of Iran and of Kurdish ethnicity, appealed decisions of the First-tier Tribunal concerning their risk on return to Iran. The appeals were listed to provide country guidance on the risk faced by individuals who left Iran illegally, are failed asylum seekers, and are undocumented. The first appellant claimed risk due to alleged membership in a Kurdish political party and possession of weapons; these claims were found to be fabricated. The second appellant claimed risk due to political support for the Kurdish cause and distribution of materials, but the judge found a lack of credible evidence of party membership or significant political activity. Expert evidence was provided by Dr Kakhki, who had previously given evidence in a related country guidance case. The court examined the risk related to illegal exit, failed asylum seeking, and undocumented status both separately and cumulatively, applying the relevant standard of proof for asylum appeals.
Legal Issues Presented
- What is the risk on return to Iran for a person who left illegally, is a failed asylum seeker, and undocumented?
- Does illegal exit and failed asylum seeking constitute a real risk of persecution or ill-treatment under Article 3 on return?
- What is the effect of Kurdish ethnicity on the risk assessment for returnees?
- What are the procedures and consequences faced by undocumented returnees, including questioning, detention, prosecution, and imprisonment?
Arguments of the Parties
Appellants' Arguments
- The risk arises at a "pinchpoint" during detention and investigation upon return, where interrogation techniques and prison conditions combine to create a real risk of ill-treatment contrary to Article 3.
- Returnees on a laissez passer who have exited illegally and are failed asylum seekers face enhanced risk due to the surfacing of these facts and the possibility of prosecution under Article 500 for propaganda against the state.
- There is a risk during investigation and potential imprisonment for illegal exit aggravated by the failed asylum claim.
- Kurdish ethnicity is an exacerbating factor relevant to treatment by authorities.
- Existing case law does not adequately address the combined risk from illegal exit and failed asylum seeking.
Respondent's Arguments
- The position has not materially changed since the earlier country guidance case SB; there is insufficient evidence of a general risk to failed asylum seekers who exited illegally.
- The examples cited by the appellants largely concern individuals with political activism or media profiles, not comparable to the appellants who have no such profile.
- Procedures at the airport involve initial enquiry and possible referral to court, but no established risk arises for those who cooperate and have no adverse history.
- Risk depends on individual circumstances; mere illegal exit and failed asylum claim do not constitute a risk category.
- Political situation in Iran has improved and diplomatic relations resumed, reducing risk for returnees.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v Secretary of State for the Home Department ex parte Sivakumaran [1988] AC 958 |
Standard of proof in asylum appeals requiring a real and substantive risk or reasonable likelihood of persecution |
Applied to assess risk of persecution or ill-treatment for failed asylum seekers returning to Iran |
| MH (Iraq) [2007] EWCA Civ 852 |
Requirement to show a real, not fanciful, risk of future events |
Used to evaluate the credibility of risk claims on return to Iran |
| SB (risk on return - illegal exit) Iran CG [2009] UKAIT 00053 |
Country guidance on risk related to illegal exit from Iran |
Served as a foundational case; court compared current evidence to SB and found no significant change in risk |
| BA (demonstrators in Iran - risk on return) Iran CG [2011] UKUT 36 (IAC) |
Consideration of factors triggering inquiry/action on return |
Confirmed that illegal exit alone does not cause persecution; more is needed to trigger risk |
| AB & Others (internet activity - state of evidence) Iran [2015] UKUT 257 (IAC) |
Risk arising from internet activity and "pinch point" of returnee interrogation |
Referenced to illustrate risk arising from political activity, not applicable to appellants with no relevant profile |
Court's Reasoning and Analysis
The court considered the evidence on risk faced by individuals who left Iran illegally, are failed asylum seekers, and undocumented. It analysed the process of return, including the necessity of obtaining a laissez passer from the Iranian Embassy upon proof of nationality and identity, which inevitably reveals illegal exit. The court accepted that returnees are likely to be questioned upon arrival, but the evidence did not establish that such questioning equates to a real risk of ill-treatment or persecution under Article 3 for individuals without adverse political profiles.
The court reviewed expert evidence, including that of Dr Kakhki, who described the legal framework in Iran, the role of the special court at the airport, and the potential punishments for illegal exit and propaganda under Article 500 of the Islamic Penal Code. While imprisonment and ill-treatment in prison were acknowledged risks, the court found insufficient evidence that mere illegal exit combined with failed asylum seeking leads to a real risk of persecution or ill-treatment.
The court examined cases cited by the appellants and expert, noting that many involved individuals with political activism or other aggravating factors, not present in the appellants' cases. The court found that the evidence did not demonstrate a change in risk since the earlier SB decision and that the political situation and diplomatic relations had improved.
Regarding Kurdish ethnicity, the court acknowledged it as a potential exacerbating factor but found no evidence that ethnicity alone creates a real risk of ill-treatment for returnees without other adverse factors.
In sum, the court concluded that the appellants, who lack a relevant adverse profile beyond illegal exit and failed asylum seeking, do not face a real risk of persecution or ill-treatment on return to Iran, either during questioning or after conviction for illegal exit.
Holding and Implications
The appeals are dismissed.
The court held that an Iranian national without a passport is returnable on a laissez passer upon proof of nationality. Such individuals, absent prior adverse interest by Iranian authorities, do not face a real risk of persecution or Article 3 breaches on return related to illegal exit or failed asylum seeking. There is no real risk at the time of questioning or after conviction for illegal exit, and prosecution under Article 500 for false asylum claims was not shown to be a real risk. Kurdish ethnicity alone does not establish risk but may be an exacerbating factor in cases with other adverse elements.
The decision directly affects the appellants by dismissing their appeals and sets country guidance indicating that failed asylum seekers who left Iran illegally and are undocumented do not generally face real risk on return. The court did not establish new precedent beyond the application and reaffirmation of existing principles and evidence.