Category: UTIAC

Asylum, Iran, UTIAC

New Country Guidance on Iranian Converts to Christianity

Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

In PS (Christianity – risk) Iran CG [2020] UKUT 46 (IAC) (20 February 2020), the Upper Tribunal has given the following country guidance:

  1. This country guidance applies to protection claims from Iranians who claim to have converted from Islam to Christianity.
  2. Insofar as they relate to non-ethnic Christians, this decision replaces the country guidance decisions in FS and Others (Iran – Christian Converts) Iran CG [2004] UKIAT 00303 and SZ and JM (Christians – FS confirmed) Iran CG [2008] UKAIT 00082 which are no longer to be followed.
  3. Decision makers should begin by determining whether the claimant has demonstrated that it is reasonably likely that he or she is a Christian.  If that burden is discharged the following considerations apply:

i) A convert to Christianity seeking to openly practice that faith in Iran would face a real risk of persecution.

ii) If the claimant would in fact conceal his faith, decision-makers should consider why.  If any part of the claimant’s motivation is a fear of such persecution, the appeal should be allowed.

iii)         If the claimant would choose to conceal his faith purely for other reasons (family pressure, social constraints, personal preference etc) then protection should be refused. The evidence demonstrates that private and solitary worship, within the confines of the home, is possible and would not in general entail a real risk of persecution. 

  1. In cases where the claimant is found to be insincere in his or her claimed conversion, there is not a real risk of persecution ‘in-country’. There being no reason for such an individual to associate himself with Christians, there is not a real risk that he would come to the adverse attention of the Iranian authorities. Decision-makers must nevertheless consider the possible risks arising at the ‘pinch point’ of arrival:

i) All returning failed asylum seekers are subject to questioning on arrival, and this will include questions about why they claimed asylum;

ii) A returnee who divulges that he claimed to be a Christian is reasonably likely to be transferred for further questioning;

iii)         The returnee can be expected to sign an undertaking renouncing his claimed Christianity. The questioning will therefore in general be short and will not entail a real risk of ill-treatment;

iv) If there are any reasons why the detention becomes prolonged, the risk of ill-treatment will correspondingly rise. Factors that could result in prolonged detention must be determined on a case by case basis. They could include but are not limited to:

a) Previous adverse contact with the Iranian security services;

b) Connection to persons of interest to the Iranian authorities;

c) Attendance at a church with perceived connection to Iranian house churches;

d) Overt social media content indicating that the individual concerned has actively promoted Christianity.

 

Afghanistan, Article 3, Article 8, Asylum, UTIAC

New Country Guidance on Afghanistan

Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

In AS (Safety of Kabul) Afghanistan (CG) [2020] UKUT 130 (IAC) (1 May 2020), the Upper Tribunal has given the following country guidance:

Risk on return to Kabul from the Taliban

(i)     A person who is of lower-level interest for the Taliban (i.e. not a senior government or security services official, or a spy) is not at real risk of persecution from the Taliban in Kabul.

Risk of serious harm in Kabul

(ii)   There is widespread and persistent conflict-related violence in Kabul. However, the proportion of the population affected by indiscriminate violence is small and not at a level where a returnee, even one with no family or other network and who has no experience living in Kabul, would face a serious and individual threat to their life or person by reason of indiscriminate violence.

Reasonableness of internal relocation to Kabul

(iii) Having regard to the security and humanitarian situation in Kabul as well as the difficulties faced by the population living there (primarily the urban poor but also IDPs and other returnees, which are not dissimilar to the conditions faced throughout many other parts of Afghanistan) it will not, in general, be unreasonable or unduly harsh for a single adult male in good health to relocate to Kabul even if he does not have any specific connections or support network in Kabul and even if he does not have a Tazkera.

(iv) However, the particular circumstances of an individual applicant must be taken into account in the context of conditions in the place of relocation, including a person’s age, nature and quality of support network/connections with Kabul/Afghanistan, their physical and mental health, and their language, education and vocational skills when determining whether a person falls within the general position set out above. Given the limited options for employment, capability to undertake manual work may be relevant.

(v)   A person with a support network or specific connections in Kabul is likely to be in a more advantageous position on return, which may counter a particular vulnerability of an individual on return. A person without a network may be able to develop one following return. A person’s familiarity with the cultural and societal norms of Afghanistan (which may be affected by the age at which he left the country and his length of absence) will be relevant to whether, and if so how quickly and successfully, he will be able to build a network.

Previous Country Guidance

(vi) The country guidance in AK (Article 15(c)) Afghanistan CG [2012] UKUT 163 (IAC) in relation to Article 15(c) of the Qualification Directive remains unaffected by this decision.

(vii)           The country guidance in AK (Article 15(c)) Afghanistan CG [2012] UKUT 163 (IAC) in relation to the (un)reasonableness of internal relocation to Kabul (and other potential places of internal relocation) for certain categories of women remains unaffected by this decision.

(viii)         The country guidance in AA (unattended children) Afghanistan CG [2012] UKUT 16 (IAC) also remains unaffected by this decision.

Article 3, Article 8, Asylum, ECHR, UTIAC

Upper Tribunal gives guidance on Article 3 and suicide

Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

In AXB (Art 3 health: obligations; suicide) Jamaica [2019] UKUT 397 (IAC), the Upper Tribunal explained that the threshold for establishing Article 3 harm is the high threshold described in N v United Kingdom[2008] ECHR 453 and a Presidential Tribunal held that:

  1. In a case where an individual asserts that his removal from the Returning State would violate his Article 3 ECHR rights because of the consequences to his health, the obligation on the authorities of a Returning State dealing with a health case is primarily one of examining the fears of an applicant as to what will occur following return and assessing the evidence.  In order to fulfil its obligations, a Returning State must provide “appropriate procedures” to allow that examination and assessment to be carried out.  In the UK, that is met in the first place by an examination of the case by the Secretary of State and then by an examination on appeal by the Tribunal and an assessment of the evidence before it.
  2. There is no free-standing procedural obligation on a Returning State to make enquiries of the Receiving State concerning treatment in that State or obtain assurances in that regard.  Properly understood, what is referred to at [185] to [187] of the Grand Chamber’s judgment in Paposhvili concerns the discharge of respective burdens of proof.
  3. The burden is on the individual appellant to establish that, if he is removed, there is a real risk of a breach of Article 3 ECHR to the standard and threshold which apply.  If the appellant provides evidence which is capable of proving his case to the standard which applies, the Secretary of State will be precluded from removing the appellant unless she is able to provide evidence countering the appellant’s evidence or dispelling doubts arising from that evidence.  Depending on the particular circumstances of the case, such evidence might include general evidence, specific evidence from the Receiving State following enquiries made or assurances from the Receiving State concerning the treatment of the appellant following return. 
  4. Where an individual asserts that he would be at real risk of committing suicide, following return to the Receiving State, the threshold for establishing Article 3 harm is the high threshold described in N v United Kingdom [2008] ECHR 453, unless the risk involves hostile actions of the Receiving State towards the individual: RA (Sri Lanka) v Secretary of State for the Home Department [2008] EWCA Civ 1210; Y and Z v Secretary of State for the Home Department [2009] EWCA Civ 362.
EU Law, UTIAC

Guidance on Permission to Appeal

Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

In Isufaj (PTA decisions/reasons; EEA reg. 37 appeals) Albania [2019] UKUT 283 (IAC) (12 August 2019), the Upper Tribunal held that:

(1) Judges deciding applications for permission to appeal should ensure that, as a general matter, there is no apparent contradiction between the decision on the application and what is said in the “reasons for decision” section of the document that records the decision and the reasons for it. As was said in Safi and others (permission to appeal decisions) [2018] UKUT 388 (IAC), a decision on a permission application must be capable of being understood by the Tribunal’s administrative staff, the parties and by the court or tribunal to which the appeal lies. In the event of such an apparent contradiction or other uncertainty, the parties can expect the Upper Tribunal to treat the decision as the crucial element.

(2) Although regulation 37(1) of the Immigration (European Economic Area) Regulations 2016 provides that a person may not appeal under regulation 36 whilst he or she is in the United Kingdom, where the decision in question falls within regulation 37(1)(a) to (g), once the appeal is instituted by a person who is then outside the United Kingdom, there is no statutory prohibition on the appeal continuing if the person concerned thereafter is physically present in the United Kingdom. It will, however, be for the Secretary of State to decide whether to give that person temporary admission for the purpose of attending an appeal hearing, since regulation 41 does not apply to such cases.

Asylum, EU Law, Returns Directive, UTIAC

Asylum: Dublin Regulation and Italy

Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

In SM & Ors, R (on the application of) v Secretary of State for the Home Department (Dublin Regulation – Italy) [2018] UKUT 429 (IAC) (4 December 2018), it was held that:

(1)        Subject to paragraph (2) below, on the evidence before the Upper Tribunal, no judge of the First-tier Tribunal, properly directed, could find there is a real risk of an asylum seeker or Beneficiary of International Protection (BIP) suffering Article 3 ill-treatment if returned to Italy pursuant to the Dublin Regulation, by reason only of the situation that the person concerned may be reasonably likely to experience in Italy, as a “Dublin returnee”. The evidence does not rebut the general presumption that Italy will comply with its international obligations in such cases.

(2)       However, the evidence before the Upper Tribunal is markedly different from that previously considered by the High Court in “Dublin” cases concerning Italy, such that it cannot, without more, be said a human rights claim based on Article 3 is bound to fail, if the claim is made by a ‘particularly vulnerable person’ (as described in paragraph (3) below).

(3)         The categories of “vulnerable persons” identified in the Reception Directive are a starting point for assessing whether a person has a particular vulnerability for the purposes of this paragraph. The extent of a person’s particular vulnerability must be sufficiently severe to show a potential breach of Article 3. It is difficult to specify when a particular vulnerability might require additional safeguarding to protect a person’s rights under Article 3. The assessment will depend on the facts of each case. However, a person who makes general assertions about mental health problems without independent evidence or who has been diagnosed with a mild mental health condition or has a minor disability may have sufficient resilience to cope with the procedures on return to Italy, even if it entails the possibility of facing a difficult temporary period of homelessness or basic conditions in first-line reception facilities. There will be cases where a person’s particular vulnerability is sufficiently serious that the risk of even a temporary period of homelessness or housing in the basic conditions of first-line reception might cross the relevant threshold. Such cases are likely to include those with significant mental or physical health problems or disabilities. Other people may have inherent characteristics that render them particularly vulnerable e.g. unaccompanied children or the elderly.

(4)        In the case of a ‘particularly vulnerable person’, the following considerations apply:

(i)                  A failure by the respondent to consider whether to exercise discretion under article 17(2) of the Dublin Regulation is likely to render the certification decision unlawful;

(ii)                If the respondent considers whether to exercise such discretion but decides not to do so, the return and reception of the person concerned will need to be well-planned. Although the Italian authorities would not want to leave a particularly vulnerable asylum seeker or BIP without support, the evidence indicates that there is no general process, similar to that which exists for families with children, to ensure that particularly vulnerable persons will not be at real risk of Article 3 treatment, while waiting for suitable support and accommodation, of which there is an acute shortage. In order to protect the rights of such a person in accordance with the respondent’s duties under the European Convention, the respondent would need to seek an assurance from the Italian authorities that suitable support and accommodation will be in place, before effecting a transfer. 

(iii)              It follows that a failure to obtain such an assurance prior to the transfer of a particularly vulnerable person is likely to give rise to a human rights claim that is not necessarily ‘bound to fail’ before the First-tier Tribunal.