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How to use the new country guidance case on Iranian Kurdish asylum seekers

How to use the new country guidance case on Iranian Kurdish asylum seekers

Credit where it’s due. In numerous claims and fresh claims for asylum for well over half a decade now, the firm of Barnes Harrild & Dyer has been presenting the Secretary of State for the Home Department with various reports by Professor Emile Joffé giving his expert opinion about the dangers awaiting Iranian nationals of Kurdish ethnicity on return to Iran. The Home Office has not lacked for consistency: again and again claims of this kind have been rejected.

Iranian Kurds have fared better in the tribunal system, where, in reliance on Professor Joffé’s reports and the expert evidence about online sur place activity Ms Anna Enayat gave the Upper Tribunal in the reported case of AB (Internet activity) Iran [2015] UKUT 257 (IAC), many if not most eventually succeeded. In spite of the repeated success of claims of this kind in the First-tier and Upper Tribunals — which cannot have escaped the attention of the Secretary of State, who was after all a party to all the appeals — the Home Office continued to refuse the claims and contest them at appeal.

The persistence of the representatives and the expert witnesses has finally paid off. The decision of HB (Kurds) Iran CG [2018] UKUT 430 (IAC) is a major step forward in securing Refugee Convention protection in the UK for Iranians of Kurdish ethnicity who fear persecution in their home country. The decision was promulgated in December 2018 and reported briefly on Free Movement at the time. The purpose of this expanded note is to describe the main country guidance conclusions of the judgment and clarify how they may be used.

The official headnote

The headnote — which is a direct reproduction of the conclusions set out in paragraph [98] of the determination — is very clear. It reads:

(1) SSH and HR (illegal exit: failed asylum seeker) Iran CG [2016] UKUT 308 (IAC) remains valid country guidance in terms of the country guidance offered in the headnote. For the avoidance of doubt, that decision is not authority for any proposition in relation to the risk on return for refused Kurdish asylum-seekers on account of their Kurdish ethnicity alone.

(2)  Kurds in Iran face discrimination. However, the evidence does not support a contention that such discrimination is, in general, at such a level as to amount to persecution or Article 3 ill-treatment.

(3) Since 2016 the Iranian authorities have become increasingly suspicious of, and sensitive to, Kurdish political activity. Those of Kurdish ethnicity are thus regarded with even greater suspicion than hitherto and are reasonably likely to be subjected to heightened scrutiny on return to Iran.

(4) However, the mere fact of being a returnee of Kurdish ethnicity with or without a valid passport, and even if combined with illegal exit, does not create a risk of persecution or Article 3 ill-treatment.

(5) Kurdish ethnicity is nevertheless a risk factor which, when combined with other factors, may create a real risk of persecution or Article 3 ill-treatment. Being a risk factor it means that Kurdish ethnicity is a factor of particular significance when assessing risk. Those “other factors” will include the matters identified in paragraphs (6)-(9) below.

(6) A period of residence in the KRI by a Kurdish returnee is reasonably likely to result in additional questioning by the authorities on return. However, this is a factor that will be highly fact-specific and the degree of interest that such residence will excite will depend, non-exhaustively, on matters such as the length of residence in the KRI, what the person concerned was doing there and why they left.

(7) Kurds involved in Kurdish political groups or activity are at risk of arrest, prolonged detention and physical abuse by the Iranian authorities. Even Kurds expressing peaceful dissent or who speak out about Kurdish rights also face a real risk of persecution or Article 3 ill-treatment.

(8) Activities that can be perceived to be political by the Iranian authorities include social welfare and charitable activities on behalf of Kurds. Indeed, involvement with any organised activity on behalf of or in support of Kurds can be perceived as political and thus involve a risk of adverse attention by the Iranian authorities with the consequent risk of persecution or Article 3 ill-treatment.

(9) Even ‘low-level’ political activity, or activity that is perceived to be political, such as, by way of example only, mere possession of leaflets espousing or supporting Kurdish rights, if discovered, involves the same risk of persecution or Article 3 ill-treatment. Each case however, depends on its own facts and an assessment will need to be made as to the nature of the material possessed and how it would be likely to be viewed by the Iranian authorities in the context of the foregoing guidance.

(10) The Iranian authorities demonstrate what could be described as a ‘hair-trigger’ approach to those suspected of or perceived to be involved in Kurdish political activities or support for Kurdish rights. By ‘hair-trigger’ it means that the threshold for suspicion is low and the reaction of the authorities is reasonably likely to be extreme.

None of this is novel, or ought to be surprising. These findings are founded squarely upon previous country guidance case law and the Secretary of State’s own Country Policy and Information Notes, supported by the written and oral expert evidence provided by Ms Enayat and Professor Joffé to the tribunal. The decision of HB (Kurds) Iran CG establishes that the correct conceptual approach to Iranian Kurdish claims is as follows:

  1. Kurds, though subject to institutionalised discrimination in Iran, are not at risk of persecution there merely for being Kurds;
  2. Nevertheless, the Iranian government is acutely aware of and sensitive to Kurdish political activity;
  3. The Iranian authorities construe ‘Kurdish political activity’ so widely as to include (by way of non-exhaustive examples):
    • involvement in Kurdish political groups at any level
    • mere expression of peaceful dissent
    • speaking out about Kurdish rights
    • social welfare and charitable activities on behalf of Kurds
    • involvement with any organised activity on behalf of or in support of Kurds
  4. mere possession of leaflets espousing or supporting Kurdish rights.
  5. Although mere illegal exit or return without a passport will not expose Kurds to a real risk of persecution in themselves, returnees without passports will be questioned, as the panel accepted at [97], and, by virtue of their ethnicity, Kurds will be subjected to heightened scrutiny;
  6. Thus, Kurdish ethnicity is a risk factor of particular significance for persecution when combined with other problematic factors.
  7. By ‘problematic factors’ I mean matters such as the ones listed in (3) above, or a period of residence in the Kurdish region of Iraq (if the length of residence there, any activity there, or the reason for leaving there is reasonably likely to suggest any involvement with the kind of activity that the Iranian authorities would perceive to be ‘political’). These must be assessed bearing in mind that the Iranian authorities ‘demonstrate what could be described as a “hair-trigger” approach to those suspected of or perceived to be involved in Kurdish political activities or support for Kurdish rights—in other words, the threshold for suspicion is low and the reaction of the authorities is reasonably likely to be extreme’. The word ‘extreme’ is carefully and deliberately chosen: as the panel notes at [92], ‘What emerges from the background and expert evidence is an extreme sensitivity on the part of the Iranian state to activities that are, or are perceived to be, anti-regime.’

The summary of country guidance in [98] follows a discussion at [80]-[97], in which the panel considered a number of factors which it declined to recognise as risk factors. In considering these, it is necessary to distinguish between what was rejected outright as a risk and what the panel declined to give guidance upon. In both cases it is important to be aware of the reasons the panel gave for its decision.

Potential risk factors rejected by the Upper Tribunal

Potential factors which the panel rejected as creating a risk were:

  • The new Political Crimes Law in Iran, discussed at [46]-[48];
  • Illegal exit/returning without a passport, which they did not consider created a risk of persecution in any circumstances; and
  • Kurdish ethnicity or having failed in an asylum claim, which they did not consider created a real risk of persecution per se.

Although the panel considered that Professor Joffé thought these factors would create a risk, they noted at [55], [60] and [64]-[65] that this was not the case put forward by the appellant. In effect, their findings here were in agreement with the positions of both parties.

Potential risk factors on which the Tribunal declined to give specific guidance

The issues on which the panel declined to offer specific guidance were:

  • at [80], risks to family members of people otherwise recognised to be at risk;
  • at [81]-[82], ‘making, re-posting or otherwise publicising critical, insulting satirical etc comments about Islam, Islamic religious figures, the Qur’an, Iran’s policies or regime members, online on social media networks whether in Iran or abroad’; and
  • at [83], ‘persons who have evidenced support for a Sunni Salafi group or ideology’.

The reasons the tribunal gave for declining to give specific guidance on these risks were in essence that they fell outside the scope of the case, so it did not have enough evidence to give comprehensive guidance on all the issues they raised. It is important to realise that the tribunal did not suggest that these issues were unlikely to give rise to a real risk of persecution.

Indeed, it is clear from the treatment of HB’s own case at [114]-[116] and from headnotes 3, 7 and 9-10 (see above) that the tribunal thought that ‘critical, insulting satirical etc comments about… Iran’s policies or regime members, online on social media networks’ would be dangerous if the authorities were to become aware of them. See, for example, the comment that ‘[s]ocial media use is however, relevant to this particular appellant’s appeal and we consider it in that context’ in [82].  The reason it gave for declining to give comprehensive guidance on that specific issue was that it did not feel it had sufficient technical and other information about the extent to which the Iranian authorities can or do as a general rule monitor internet activity/social media use in order to seek out its opponents.

In any event, it is important to bear in mind that HB (Kurds) Iran CG does not replace former country guidance authority on Iran, but builds upon it. Thus, for example, the risk identified in headnote (v) of SB (risk on return-illegal exit) Iran CG [2009] UKAIT 53, ‘Being accused of anti-Islamic conduct likewise also constitutes a significant risk factor’, holds good, notwithstanding this panel’s decision not to give guidance on criticism of Islam or Islamic religious figures.

Similarly, as the panel pointed out at [97],

What is not disputed is that a returnee without a passport is likely to be questioned on return. Such is the expert evidence before us and such is recognised in current country guidance, for example, SSH and HR.

So even where the evidence may be unclear about the nature or extent of a pre-existing risk of persecution to people whose histories engage these factors, Iranian Kurds can still establish that a risk exists. The recognition in CG case law of the likelihood of questioning on return combined with the CG findings in the instant case about the elevated risks faced by Kurds, the low threshold of suspicion, the likelihood of extreme reaction by the Iranian authorities to anything perceived as political and the extraordinary breadth of the activities that they perceive as political will be enough in many cases.

Treatment of the expert evidence in HB

On the expert evidence generally, paragraphs [7], [42] and [44] are of particular importance.  At [7] the tribunal stated unequivocally that the summarised expert evidence is essential to an understanding of the decision:

We heard oral evidence from two expert witnesses, Anna Enayat and Professor Emile Joffé. They each provided written reports and written answers to questions in writing from the respondent. Professor Joffé’s report is dated 14 October 2017 and that of Ms Enayat is dated 22 January 2018. Although their evidence is summarised at Annex B, it [is] essential to a full understanding of this decision that full reference is made to the summarised expert evidence. We make further reference to aspects of their written and oral evidence in our conclusions. (emphasis added)

At [42] and [44] the panel indicated the extent to which it accepted or rejected the expert evidence:

We have no hesitation in accepting the expertise of both Anna Enayat and Professor Joffé whose knowledge and experience of Iran and the Middle East extends over many years, indeed decades. Their expertise has been recognised by courts and tribunals on numerous occasions.

That is not to say that we consider ourselves bound to accept every aspect of the experts’ evidence. Where we have not done so we explain why.

In effect, the summary of the expert evidence is adopted as part of the guidance, subject — as indicated in [44] — to those parts of the evidence which are specifically rejected. Read together and in light of the whole of the determination, these paragraphs show that the Upper Tribunal accepted all of Ms Enayat’s evidence and most of Professor Joffé’s (save only his evidence on the Political Crimes Law and the risk to Kurds per se).  It is of course true that the relevant parts of paragraphs [7] and [42] were not repeated verbatim in the headnote, but that does not alter their status as essential components of the country guidance. As Lord Justice Carnwath said in PO (Nigeria) v Secretary of State for the Home Department [2011] EWCA Civ 132]:

The headnote is not part of the determination as such. This is apparent from the fact that it precedes the formal “determination and reasons”… It is intended to provide a convenient shorthand summary of the effect of the decision…

In this case, the headnote replicates the list of conclusions in [98] but omits the words ‘Drawing on all the expert and background evidence’, which hark back to the declaration at [7] that it is ‘essential to a full understanding of this decision that full reference is made to the summarised expert evidence’.

The reason why it is essential to make full reference to the expert evidence is that the panel adopted a factor-based approach rather than a categorical approach, explaining the distinction at [51]:

In TK (Tamils – LP updated) Sri Lanka CG [2009] UKAIT 00049 the Tribunal made a distinction between risk categories and risk factors. At [4] the distinction was explained thus:

“In country guidance cases the Tribunal has a dual function.  As in every case, it must decide the appeal before it, but it also seeks to identify relevant risks that arise in relation to classes or groups of persons.  It does this in two main ways: (i) by identifying one or more “risk categories” (usually when the evidence is sufficiently clear-cut to justify a finding that the generality of persons in a particular category are at risk); (ii) by delineating “risk factors”, i.e. factors of particular significance when assessing risk, a mode usually chosen when the evidence is less clear-cut.”

The panel is to be commended for this approach. It is of course convenient for all parties to identify risk categories where it is possible to do so, because it makes the task of identifying the need for protection in those cases more straightforward. Nevertheless, a decision-maker in an asylum claim applying the Karanakaran principles to an assessment against the Sivakumaran standard should not simply reject evidence where it is not clear-cut. This remains true whether the decision-maker is judicial or administrative. The conceptual convenience of risk categories can blind decision-makers to the existence of risk factors, which is unfortunate, because lack of clarity does not necessarily equate to absence of risk.

The panel in HB (Kurds) Iran CG was fully aware of this, as is evident from its observations at [7] and the declaration in headnote (5) that ‘[t]hose “other factors” will include the matters identified in paragraphs (6)-(9) below’, where the use of the word ‘include’ shows that the tribunal did not consider the factors listed in the headnote to be exhaustive of risk.

Summary of expert evidence relevant to assessing risk

As indicated in [7], the oral evidence of both experts was summarised in Annex B: the evidence of Ms Enayat (AE) at §1-§71; that of Professor Joffé (EJ) at §72-§117.   What follows is a brief guide to references that may prove useful in arguing individual cases under HB.

1. Kurds face particular problems

Factors that have contributed to heightened tensions in Kurdish areas: AE §5; EJ §73-§74, §90, §116, §117:

  1. The fighting in the Syrian war, which has raised national consciousness amongst Kurds.
  2. The resumption in 2016 of armed activities by Kurdish national parties who had repudiated violence, the first major resurgence since the 1990s.
  3. The abortive independence referendum in the Kurdish Region of Iraq mobilised the population in Kurdish cities of Iran.
  4. The terrorist attack on the Iranian parliament in Tehran in July 2017, where the perpetrators were Islamist Kurds. The Iranian security services rounded up Kurds in the Kurdish areas. There was therefore heightened security activity, because they were worried about terrorist attacks.
  5. The December 2017 – January 2018 demonstrations, which were more widespread than the ones in 2009.

Heightened suspicion/scrutiny of Kurds: EJ §76, §97, §99, §116. Checks on Kurds are more rigorous AE §11, §13, §14 (‘with Kurds, they always do have something else to bother about because they want to find out if they have organisational connections’).

Particular situations of heightened scrutiny for Kurds would be if they were to go and live in Iraq, or pass through the airport having failed in an asylum claim, or be on the streets when demonstrations were going on: AE §1, §35, §62; EJ §83.

Punishment for political activity is worse for Kurds: AE §32.

ISIS/Da’esh has Kurdish members and sympathisers: AE §37; EJ §95.

2. The attitude of the Iranian security establishment to who/what is a threat

The government thinks that any civic organisation is a cover for political activity. It is the organised nature of it, rather than the activity itself.’ AE §3, §66.

The Iranian authorities have a different understanding of the nature of the threat of low-level activity: AE §69 (‘Their threshold for activism is very different from ours.  Political activism and someone insulting the state through Facebook are not mutually exclusive.’); EJ §76 (‘The regime does not tolerate criticism, especially abroad.  It is not a question of whether a person is a threat to state security. It is what you have said which will determine whether you would be questioned or persecuted.’).

Even very low-level political activity/support/attitude is risky: AE §7, §24, §29-§32 (‘The risk involves people identified as being in possession of dissenting attitudes.  That is how low the threshold goes.’).

3. Checks on return

Airport checks are routine: AE §7, §11-§12, §56.

Airport checks include checks on Facebook and email: AE §42, §45, §67.

Deleted Facebook posts are also risky: AE §43.

There is always a risk during checks: AE §15, §36.

Anyone with an emergency/temporary travel document is scrutinised: AE §39, §50 (‘The purpose is to pick out people with dissenting views. She agreed that they would ask about the contents of an asylum claim. A person has to apply for a special type of passport. They write down the content of the asylum claim and the person signs to say that they regret the claim.’).

4. Internet activity

In relation to the appellant’s Facebook activity, it is important to be aware that the tribunal found in the determination at §111 that the material relied upon by the appellant was all re-posted/shared. This is a matter of potential significance in other cases, because many asylum claimants say they are illiterate and the Secretary of State frequently attempts to argue that the Iranian authorities will be less troubled by posts which are not the original work of the claimant. The tribunal in this case plainly did not consider that it would make any difference whether the posts were original or copied/shared. It is the content of the posts and the fact of displaying them that creates the risk.

Merely sharing/liking posts on social media is risky: AE §43, §51, §56, §66, §67; EJ §109-§110.

The Iranian authorities have a particular interest in Facebook: EJ §107.

People have been punished even for material that was not their own: AE §44 (‘She knows that people have been penalised for possessing very little material or even after having said that such material was not their own.’), §50-§51 (‘It was put to Ms Enayat that if the focus was on people politically active, the authorities would be less concerned with people who ‘liked’ offensive images on Facebook. She disagreed, saying that it was not likely that they would forgive the type of images (on the appellant’s Facebook) that she had seen.’), §66, §67, §68, §69; EJ §76, §81, §108-§110.

The punishment for internet activity ‘in terms of sharing anti-regime posts and making fun of senior government or religious figures’ per AE §7 is likely to involve torture and imprisonment: AE §7, §8, §19, §67; EJ §81, §108-§111.

5. Opportunism and sincerity

Opportunism is irrelevant to adverse interest: AE §9, §19; EJ §82, §110-§112. The finding of the tribunal in the case of BA (Demonstrators in Britain – risk on return) Iran CG [2011] UKUT 36 (IAC) at [65] that ‘While it may well be that an appellant’s participation in demonstrations is opportunistic, the evidence suggests that this is not likely to be a major influence on the perception of the regime’ is correct: AE §69; EJ §117.

Sincerity is irrelevant: AE §10, §19, §43 (‘Even if a person said that what they had written was all ‘rubbish’, the person will have already committed the crime.’); EJ §82, §108.

6. Risk to family members

The Iranian authorities take a collective view of liability/responsibility: EJ §92-§93.

Rudolph started law-school at the age of 41 and re-trained as a barrister, since when he has practised in immigration law, focussing mainly on asylum and human rights at 10 King’s Bench Walk in London. He is a regular fixture in the First-tier and Upper Tribunals and appeared in the current country guidance cases on the persecution risks for returnees to post-civil war Sri Lanka (2013) and Iranian Kurds (2018). Before coming to the Bar, he had a varied work history as a freelance lexicographer, research assistant on the Survey of English Usage at University College London (1989-90), Teacher of English and the methodology of teaching in China (1991-1994), and a local government officer at the London Boroughs of Camden (1995-6) and Hammersmith & Fulham (1996-2005).

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