The appellant was an Iranian refugee sur place, having come to the UK on a student visa in July 2008. Between June and early July 2009 the appellant took place in five demonstrations outside the Iranian Embassy in London. He was protesting the alleged malpractices in the election of Mahmud Ahmedinejad as President of Iran.
The appellant was refused asylum by the Home Secretary on 26 November 2009. There had been an appeal before an Immigration Judge (IJ), which was dismissed. The IJ had discounted the appellant’s evidence that his family had been detained for political activity. The IJ found that his participation in the London demonstrations had been opportunistic – an attempt to establish asylum sur place.
It was determined that, in light of SS (Iran) [2008] EWCA Civ 310, the IJ had made legal mistakes. In SS, Lord Neuberger said that it would not be enough for an applicant ‘simply to establish’ involvement in activities ‘limited in duration and importance, without producing any evidence that the authorities would be concerned about them’. As such, the IJ should have heard expert evidence that the Iranian authorities were capable of identifying the appellant. Even if the appellant had acted opportunistically, this would not automatically disqualify his asylum claim (YB (Eritrea) v Secretary of State for the Home Department [2008] EWCA Civ 360).
The key issues to address regarding the appellant’s claim for asylum ‘sur place’ were: (1) the nature of the sur place activity, (2) risk that he would be identified, (3) factors which might trigger inquiry about him on return to Iran, (4) the consequences of identification, (5) the identification of risk on return.
The nature of the appellant’s sur place activity, although he had taken place in five demonstrations only, was such that he was portrayed as having taken a prominent role. Footage of his participation remained on YouTube and Facebook. His photograph appeared in an issue of the magazine Bamdad e Iran which was offensive to the Iranian regime. Both the YouTube clip and magazine are associated with the secular nationalist group, the United Front of Iranian Nationals, based in the Iranian community in London. Thus, the risk of identification was reasonably likely.
Given that the appellant would be a forced to returnee to Iran, without a valid visa, he would attract attention. Even if opponents to the regime are not picked up at the airport in Tehran, the Iranian authorities are capable of detaining them later. If an inquiry was triggered, the authorities might well identify the appellant from footage filmed by the Iranian embassy in London of the 2009 demonstrations in the UK. They were equally capable of filtering footage online.
The consequences of identification would likely be inhuman or degrading treatment, according to expert evidence by academics and human rights NGOs. If questioned on return to Iran, the appellant could not be expected to lie about demonstrating (IK (Turkey) CG [2004] UK IAT 00312; RT (Zimbabwe) [2010] EWCA Civ 1285).
Considering the five criteria, the appeal succeeded on the grounds of asylum and human rights (Article 3 of the European Convention on Human Rights, prohibiting inhuman and degrading treatment).
Zoe Sutherland