Factual and Procedural Background
The Appellant is of Kurdish ethnicity, born in 1988 in a location within Iran. His parents disappeared in 1994, believed to have been arrested by authorities due to involvement in Kurdish nationalist activities. Around the same time, the family home suffered a fire, causing the Appellant burn injuries. Subsequently, the Appellant was taken by his uncle to Iraq where he lived undocumented and faced bullying due to a leg disability and outsider status. As an adult, he returned to Iran, raised funds through the sale of family land, and illegally exited Iran on 1 September 2015, arriving in the United Kingdom in early July 2016. The Appellant claims he cannot live undocumented in Iraq nor return to Iran due to his family's political background.
The First-tier Tribunal (FtT) dismissed the Appellant's appeal on 1 February 2017 despite accepting the credibility of his account. The FtT found no real likelihood that the Appellant would be regarded as a person of adverse interest due to his parents’ past activities or his own actions, concluding that illegal exit and failed asylum seeker status alone did not establish a well-founded fear of persecution. The Appellant appealed to the Upper Tribunal (UT), which is the subject of this decision.
Legal Issues Presented
- Whether the First-tier Tribunal erred in law by failing to properly consider the risk of persecution faced by Kurdish failed asylum seekers who have left Iran illegally.
- Whether the existing country guidance (particularly the decision in SSH and HR (illegal exit: failed asylum seeker) Iran CG [2016] UKUT 308 (IAC)) adequately addresses the risk to Kurdish individuals returning to Iran.
- Whether new expert evidence presented by the Appellant justified departing from the existing country guidance.
- The scope and application of country guidance in relation to Kurdish ethnicity as a risk factor for persecution on return to Iran.
Arguments of the Parties
Appellant's Arguments
- The Appellant relied on two expert reports from Professor Joff, which challenged the conclusions of the SSH and HR country guidance case, arguing that Kurdish failed asylum seekers face a significant risk of persecution.
- Counsel argued that the SSH and HR decision did not specifically assess risks to Kurdish failed asylum seekers and that the First-tier Tribunal could reach its own conclusions based on the evidence without rejecting the country guidance.
- The Appellant contended that the SSH and HR case underestimated the difficulties faced by persons leaving Iran illegally in obtaining laissez-passer documents and the risks associated with Kurdish ethnicity.
Respondent's Arguments
- The Respondent maintained that the SSH and HR country guidance remains authoritative and that the Appellant had not presented sufficient new evidence to depart from it.
- The Respondent argued that the risk to Kurdish failed asylum seekers had been considered as an exacerbating factor but not as a standalone risk leading to persecution.
- The Respondent supported the First-tier Tribunal's findings that the Appellant did not demonstrate a well-founded fear of persecution based solely on Kurdish ethnicity combined with illegal exit and failed asylum seeker status.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| SB (risk on return-illegal exit) Iran CG [2009] UKAIT 00053 |
Assessment of risk to Iranians returning after illegal exit, with consideration of political activity and court proceedings as risk factors. |
The court relied on this precedent to confirm that illegal exit alone is not a significant risk factor but may add to risk if combined with other adverse interest factors. |
| SA (Iranian Arabs-no general risk) Iran CG [2011] UKUT 41 |
Ethnicity as a risk factor, specifically that Iranian Arabs do not face persecution solely due to ethnicity. |
Referenced to illustrate that ethnicity alone (similarly Kurdish ethnicity) is not sufficient to establish a risk of persecution without other adverse factors. |
| SSH and HR (illegal exit: failed asylum seeker) Iran CG [2016] UKUT 308 (IAC) |
Country guidance on risks faced by Iranian males who left illegally and are failed asylum seekers, including the process of obtaining laissez-passer documents. |
Served as the primary authoritative guidance, with the court required to follow unless there is clear evidence to depart; the Appellant was found to fall within its scope. |
| AB and Others (internet activity state of evidence) [2015] UKUT 257 (IAC) |
Assessment of evidence regarding risk from internet activity and surveillance upon return to Iran. |
Noted for evidential standards; no sufficient basis found for country guidance on internet activity risk in this case. |
Court's Reasoning and Analysis
The Upper Tribunal Judge analyzed the First-tier Tribunal’s decision and the Appellant’s submissions, focusing on the application of existing country guidance. The Judge acknowledged the credibility of the Appellant’s account but emphasized the necessity to follow established country guidance unless new, compelling evidence justifies departure.
The Judge considered the expert reports from Professor Joff but found that the reports did not present sufficient new evidence to override the SSH and HR country guidance. The Judge noted that SSH and HR explicitly addressed the risks to Iranian males who left illegally and are failed asylum seekers, concluding no real risk of persecution or breach of Article 3 rights exists solely on this basis.
Importantly, the Judge identified a material error of law in the First-tier Tribunal's approach: it treated the issue of Kurdish ethnicity as conclusively resolved by SSH and HR. However, the UT in SSH and HR had not designated Kurdish ethnicity as a specific country guidance issue, meaning the First-tier Tribunal should not have precluded consideration of this factor. This error required setting aside the First-tier Tribunal’s decision.
The Judge further confirmed that reliance on SSH and HR regarding the laissez-passer process was appropriate, as that was a properly identified country guidance issue in that case.
Given these findings, the Judge concluded that the case required a further hearing to properly assess the risk related to Kurdish ethnicity as a potential risk factor and whether it should be recognized as a new country guidance issue.
Holding and Implications
The First-tier Tribunal's decision is set aside due to a material error of law.
The case is remitted for a further hearing in the Upper Tribunal to consider the risk to Kurdish failed asylum seekers returning to Iran, including the question of Kurdish ethnicity as a specific risk factor. The case may be joined with other cases for the purpose of establishing new country guidance on this issue.
The direct effect is that the Appellant’s appeal is to be reheard with due consideration of Kurdish ethnicity beyond the scope of existing country guidance. No new precedent is established by this decision; rather, it clarifies the procedural and substantive requirements for applying country guidance and assessing risk factors in such appeals.