ON APPEAL FROM THE UPPER TRIBUNAL (IAC)
Upper Tribunal Judge Kopieczek
Royal Courts of Justice
Strand, London, WC2A 2LL
Before:
LADY JUSTICE SHARP
LORD JUSTICE SIMON
and
LADY JUSTICE THIRLWALL
Between:
AM (Iran) | Respondent |
and | |
Secretary of State for the Home Department | Appellant |
Mr John-Paul Waite (instructed by Government Legal Department) for the Appellant
Mr Manjit Gill QC and Ms Priya Solanki (instructed by Braitch, Solicitors) for AM
(none of whom appeared in the court below)
Hearing date: 30 October 2018
Judgment
Lord Justice Simon:
Introduction
This is an appeal by the Secretary of State from a decision of the Upper Tribunal (Asylum and Immigration Chamber) (‘UT’) promulgated on 25 January 2017. In that decision Upper Tribunal Judge Kopieczek (‘the UT Judge’) concluded that deporting the respondent (‘AM’) to Iran would place him at risk of ill-treatment in contravention of his rights under article 3 of the European Convention of Human Rights (‘ECHR’).
Background
AM is an Iranian national who was born in 1980. He entered the United Kingdom on 15 January 2006 and lodged an asylum application the same day. This was rejected on 3 February 2006. His rights of appeal against that refusal were exhausted on 2 June 2006. On 1 April 2008, he applied for an EEA Residence Card as a member of the family of his wife, an EEA national. This application was refused on 28 April 2009. A new application was then submitted on 8 December 2009, and this was granted with effect until 8 December 2014.
On 5 August 2013 he was found guilty of the rape of a 17-year old girl on 28 September 2012, and sentenced to a term of five years imprisonment, with an order of indefinite registration on the sex offenders register. He was released from prison on 18 August 2015.
Under the Regulation 19(3)(b) of the Immigration (EEA) Regulations 2006 (‘The EEA Regulations’), the Secretary of State may deport a family member of an EEA national provided that the person’s removal is justified on grounds of public policy, public security or public health. By a decision dated 24 July 2015, the Secretary of State issued a deportation order on grounds that the respondent represented ‘a genuine, present and sufficiently serious threat to the public to justify … deportation on grounds of public policy.’
The appeal from that decision came before Tribunal Judge Astle in the First Tier Tribunal (‘FtT’) on 11 May 2016. She dismissed the appeal against the deportation order under articles 3 and 8 of the ECHR. She also upheld the certificate under s.72 of the Nationality, Immigration and Asylum Act 2002 on the basis that AM had been convicted of a ‘particularly serious crime and constituted a danger to the community.’ The effect of her conclusion was that AM was, and continues to be, excluded from the protection of the Refugee Convention and a grant of humanitarian protection.
AM appealed to the UT on grounds that the FtT, had (a) applied the incorrect standard of proof to the assessment of risk under articles 2 and 3, and (b) erred in law in its assessment of risk on return.
On 13 September 2016, the UT Judge allowed the appealand directed that the decision be re-made by the Upper Tribunal. That decision was re-made by the UT Judge and promulgated on 25January 2017. The hearing before us was an appeal from that decision.
Some of the factual findings of the FtT remained undisturbed. So far as material they were, in summary, as follows. (1) AM had left Iran illegally. (2) He represented a danger to the community and was therefore disentitled to humanitarian protection or protection under the Refugee Convention. (3) His purported conversion to Christianity was fabricated in order to establish a claim that he would be at risk upon return to Iran as a Christian convert.
The decision under appeal
The issue before the Upper Tribunal was whether to deport AM to Iran would violate his rights under article 3. The UT Judge concluded that it would.
AM had argued that the FtT’s findings that his conversion to Christianity was not genuine did not answer the issue of the degree of risk on return. As he had left Iran illegally, he would be subject to enhanced interest by the authorities. Their questions would include questions about his internet activity. The effect of his tweets was that he would be viewed as Christian. He could not be expected to lie; and would therefore have to admit that the Twitter account was his even if the authorities did not believe he was a true convert. He would nonetheless be regarded as having been involved in anti-Islamic conduct.
It was argued on behalf of the Secretary of State that, if AM returned to Iran, in the ‘unlikely event that he is asked about his Twitter account, he would be able to say what happened and he would be seen as an economic migrant.’ It was further submitted that AM had merely tweeted verses from the Bible and that there was no genuine anti-Islamic content.
At §23 of the decision, the UT Judge concluded that the authorities established that, on his return AM would be questioned both about his illegal exit from Iran and his asylum claim; and that he could not be expected to lie. AM could therefore be expected to explain details of his asylum claim to the Iranian authorities, that his Twitter postings were simply an attempt to gain status in the UK and that he was not a real Christian convert.
At §25, the UT Judge said:
It cannot realistically be supposed that, on [AM] admitting having posted Bible quotes on his Twitter account, the matter would not be further explored by the Iranian authorities.
He had considered the contents of the 850 Twitter posts and disagreed with the Secretary of State’s characterisation of them as ‘simply quotations from the Bible.’ There were quotations from the New Testament and religious images, and retweets which were likely to find disfavour with the Iranian authorities.
Paragraph 27 of the UT decision was in these terms:
It was not disputed on behalf of [the Secretary of State] that if [AM] was thought to be a Christian convert, then he would be at real risk of ill-treatment. That is also the effect of the CIG to which I was referred, and which is consistent with other background evidence. It seems to me that there is a reasonable likelihood that the authorities would view the appellant as a Christian convert, with all that this means in terms of risk (emphasis added).
It is this paragraph, with its references to (1) a concession on behalf of the Secretary of State, (2) the effect of the CIG (Country Information Guidance) and (3) the extent of risk to someone viewed as a Christian convert, that lies at the heart of the Secretary of State’s appeal that gives rise to one of the grounds of appeal.
The Judge continued:
28. Furthermore, there is also a reasonable likelihood that the appellant would be viewed as someone involved in anti-Islamic conduct, even if it is accepted by the authorities that his extensive Christian twitter postings were merely opportunistic. As explained in SB [(risk of return – illegal exit) Iran CG [2009] UKAI 0053] at [45], such presents as a significant risk factor.
29. In all the circumstances, I am satisfied that the appellant has established that there is a real risk that on his return he would be questioned about the details of his asylum claim and that that questioning would reveal that he has posted on Twitter. For the reasons explained above, that interrogation would involve a real risk of ill-treatment amounting to a breach of article 3.
The UT Judge remade the decision, allowing the appeal on the basis that article 3 provides for protection in absolute terms.
The Secretary of State’s appeal
The first ground
The first ground is a complaint that, when considering whether AM’s purported conversion to Christianity would place him at risk, the UT failed to consider the most recent applicable Country Guidance cases: FS and others (Iran - Christian converts) Iran CG[2004] UKIAT 00303 and SZ and JM (Christians - FS Confirmed) Iran CG[2008] UKIAT 00082.
Mr Waite submitted that the case of FSand others (2004) provided clear guidance as to the correct approach to be adopted in relation to the position of Christian converts in Iran. At 187, the Upper Tribunal had set out the position:
187. For the ordinary convert, who is neither a leader, lay or ordained, nor a Pastor, nor a proselytiser or evangelist, the actual degree of risk of persecution or treatment breaching Article 3 is not sufficient to warrant the protection of either Convention. The reality is that a social and economic life can be maintained; Christianity can be practised, if necessary, cautiously at times, by Church attendance, association with Christians and Bible study. There may well be monitoring of services and identity checks. They would be able to practise, however, as most Iranian converts do. It is realistic to expect that there may sometimes be questioning, disruption, orders not to attend Church, which may require the convert to stay away for a while. But there is no evidence of a real risk of ill-treatment during such questioning or of anything more than a short period of detention at worst. There is evidence of random or sporadic violence by the likes of the Basiji, but at too infrequent a level to constitute a real risk to the ordinary convert. The longer official questioning, detentions, and the greater risk of charges, trumped up or menacingly vague or simply threatened are not a real risk for the ordinary convert.
188. We would, on the present evidence, regard them as not at a real risk of persecution or treatment breaching Article 3. We allow in that assessment for some recent worsening in the current climate.
189. We would regard the more active convert, Pastor, church leader, proselytiser or evangelist as being at a real risk. Their higher profile and role would be more likely to attract the malevolence of the licensed zealot and the serious adverse attention of the theocratic state when it sought, as it will do on some occasions, to repress conversions from Islam which it sees as a menace and an affront to the state and God.
The subsequent case of SZ and JM (2008) confirmed this position. Part of the headnote reads:
Conditions for Christians in Iran have not deteriorated sufficiently to necessitate a change in the guidance in FS [and others (2004)] …
This part of the headnote reflected passages in the decision itself, including:
9. At paragraph 184 [of FS and others (2004)], the Tribunal accepted that there was no real risk on return for someone who has simply been an asylum seeker. It cautioned against drawing conclusions by reference to the position of those who return merely as failed asylum seekers, when considering what may happen to those returning if the fact of conversion becomes known before or at the point of return. The Tribunal concluded that the evidence did not show that by itself would lead to ill-treatment, but found it could lead to questioning, warnings and the possibility that local police or vigilante groups, family and associates may be told. The Tribunal found that if there was hostility from families that would need to be considered in each case, but generally did not create a risk of persecution, although it acknowledged that it could make life more difficult.
…
148. It remains our view that for the ordinary convert (within the meaning which we have slightly modified from FS and others) there is a risk, but not a real risk, of serious harm if returned to Iran.
Mr Waite submitted that the UT was required by Practice Direction 12 of the Immigration and Asylum Chamber to have regard to the Country Guidance determinations.
12.2 A reported determination of the Tribunal, the AIT or the IAT bearing the letters ‘CG’ shall be treated as an authoritative finding on the country guidance issue identified in the determination, based upon the evidence before the members of the Tribunal, the AIT or the IAT that determine the appeal. As a result, unless it has been expressly superseded or replaced by any later ‘CG’ determination, or is inconsistent with other authority that is binding on the Tribunal, such a country guidance case is authoritative in any subsequent appeal, so far as that appeal:
(a) relates to the country guidance issue in question; and
(b) depends upon the same or similar evidence.
12.3 A list of current CG cases will be maintained on the Tribunal’s website. Any representative of a party to an appeal concerning a particular country will be expected to be conversant with the current ‘CG’ determinations relating to that country.
12.4 Because of the principle that like cases should be treated in like manner, any failure to follow a clear, apparently applicable country guidance case or to show why it does not apply to the case in question is likely to be regarded as grounds for appeal on a point of law.
The contention that the UT failed to consider the applicable Country Guidance
Mr Waite submits that the UT Judge erred in law in failing to refer to the relevant CG cases: FSand others (2004) and SZ and JM (2008); and that he should have done so notwithstanding that they were not referred to or relied upon by the parties, as appears to have been the position here. We were told by Mr Waite that his instructions were that the Home Office Presenting Officer was aware of the Country Guidance cases. There was no information about whether AM’s counsel at the time was aware of them.
In general, one would expect the parties to refer to any relevant CG cases, although we would also expect specialist Tribunal Judges to be aware of the relevant CG cases, or at least where they are to be found. The Practice Direction at §12.4 assumes as much, see also DK (Serbia) and others v. Secretary of State for the Home Department[2008]1 WLR 1246 at [57] and SG (Iraq) and another v. Secretary of State for the Home Department[2013] 1 WLR 41 at [47]. In the present case, the UT Judge did not refer to either FSand others (2004) or SZ and JM (2008).
He did, however, refer to three other cases dealing with the risks of return to Iran: SB (risk on return - illegal exit) Iran CG[2009] UKAIT 0053, SSH and HR (illegal exit: failed asylum seeker) IranCG [2016] UKUT 00308 and a further decision AB and others (internet activity - state of the evidence) Iran[2015] UKUT 257 (IAC).
SB (risk on return - illegal exit) (2009) was a CG case concerning the political changes following the June 2009 presidential election in Iran. It indicated that those who face enforced return to Iran do not in general face a real risk of persecution or ill-treatment, but that being accused of anti-Islamic conduct constituted a significant risk factor. The Upper Tribunal accepted that those who face enforced return would be likely to be questioned about their asylum claims.
The headnote (b) of SSH and HR (illegal exit: failed asylum seeker) (2016) provides:
(b) An Iranian male in respect of whom no adverse interest has previously been manifested by the Iranian State does not face a real risk of persecution/breach of his Article 3 rights on return to Iran on account of having left Iran illegally and/or being a failed asylum seeker. No such risk exists at the time of questioning on return to Iran nor after the facts (i.e. of illegal exit and being a failed asylum seeker) have been established. In particular, there is not a real risk of prosecution leading to imprisonment.
The Upper Tribunal in that case accepted that those who were forcibly returned to Iran would be likely to face questions about their asylum claims.
AB and others (internet activity - state of the evidence) (2015) was referred to by UT Judge at paragraph 22 of the decision. However, it is not a CG decision and it is not clear why he referred to evidence given in that case: that people are asked about their social internet activity and particularly their Facebook password, neither of which were matters that arose in the present case.
The UT Judge added:
Although plainly AB and others is not country guidance, it has not been suggested on behalf of [the Secretary of State] before me that the evidence put before the Tribunal in that case cannot be relied on.
I would note, parenthetically, that it is unclear why the Judge thought that evidence given in what was not a CG case was to be given particular weight on the basis that the Secretary of State could not suggest why it could not be relied in the present case. CG cases are exceptions to a general rule that evidence in one case cannot be relied on in another case.
The UT placed itself in danger of proceeding impermissibly on the basis of what it perceived to be binding concessions.
The Judge had earlier referred, in paragraph 16, to the Home Office Country Information Guidance (‘CIG’) ‘Iran: Christians and Christian Converts’, dated December 2015. CIGs are published by the Independent Advisory Group on Country Information (‘IAGC’) which was set up by the Independent Chief Inspector of Borders and Immigration to make recommendations to him about country of origin information (‘COI’).
The preface of the CIG reads:
This document provides [COI] and guidance to Home Office decision makers on handling particular types of protection and human rights claims. This includes whether claims are likely to justify the granting of asylum, humanitarian protection or discretionary leave and whether – in the event of a claim being refused – it is likely to be certifiable as ‘clearly unfounded’ under s.94 of the Nationality, Immigration and Asylum Act 2002.
Decision makers must consider claims on an individual basis, taking into account the case specific facts and all relevant evidence, including: the guidance contained with this document; the available COI; any applicable caselaw; and the Home Office casework guidance in relation to relevant policies.
Country information
COI within this document has been compiled from a wide range of external information sources (usually) published in English. Consideration has been given to relevance, reliability, accuracy, objectivity, currency, transparency and traceability of the information used across independent sources, to ensure accuracy …
All sources cited have been referenced in footnotes …
The guidance itself included:
Christians converts
Christians who have converted from Islam are at risk of harm from the state authorities, as they are considered apostates - a criminal offence in Iran. Sharia law does not allow for conversion from Islam to another religion, and it is not possible for an individual person to change their religious affiliation on personal documentation. Christian converts face physical attacks, harassment, surveillance, arrest, detention as well as torture and ill-treatment in detention. The country guidance case of SZ and JM (Christians - FS confirmed) (2008) found that conditions for converts to sacrament-based churches may be such that they could not reasonably be expected to return to Iran. This remains the case. (emphasis added)
The first sentence in the above passage provides at least some support for paragraph 27 of the UT decision, as is the somewhat contradictory content of §3.1.4 of the CIG, and may explain the concession that was made, although not its breadth or the gloss ‘real risk of ill-treatment’. That was not consistent with the Country Guidance in FSand others (2004) and SZ and JM (2008) (above) at least for what was described as the ‘ordinary convert’, who, on the basis of paragraph 188 of FSand others (2004) and paragraph 148 of SZ and JM (2008), was not to be regarded as at real risk of persecution or treatment breaching article 3 on return.
However, the ‘risk of harm’ (see CIG) or ‘real risk ill-treatment’ (see UT decision) was rightly not treated by the UT as the end of the matter. It was for the UT to assess the extent of the risk as part of the decision. That called for a closely focussed assessment of AM’s particular position.
The concession
One difficulty in the Secretary of State’s argument on the appeal is the concession noted at §27 of the UT decision: that if AM were thought to be a Christian convert, he would be at ‘real risk of ill-treatment’. Recognising the difficulty that this concession presented on the appeal, Mr Waite applied to withdraw it. This was done informally and during the course of the hearing, although Mr Waite had submitted that it would not be in the interests of justice to hold the Secretary of State to the concession, and an application had been foreshadowed in the Grounds of Appeal dated 1 May 2017.
I would accept that the Court may, depending on the circumstances, permit a concession that was made in a tribunal hearing to be withdrawn. There are no all-embracing principles that will apply beyond those implicit in CPR Part 1.1.
In Secretary of State for theHome Department v. Davoodipanah[2004] EWCA Civ 106 a concession had been made before the Immigration Adjudicator. On an appeal to the Immigration Appeal Tribunal, the Secretary of State considered that the concession had been wrongly made; and revisited an issue that was implicitly covered by the concession. The appellant appealed against an adverse decision on the basis that the IAT could not go behind the concession made before the Immigration Adjudicator. Kennedy LJ, giving the leading judgment, considered this point:
22. It is clear from the authorities that where a concession has been made before an adjudicator by either party the Immigration Appeal Tribunal can allow the concession to be withdrawn if it considers that there is good reason in all the circumstances to take that course. (See, for example, Ivanauskieine v Secretary of State for the Home Department [2001] EWCA.Civ 1271, and Carrabuk v Secretary of State for the Home Department (a decision of the Immigration Appeal Tribunal presided over by Mr Justice Collins on 18 May 2000)). Obviously if there will be prejudice to one of the parties if the withdrawal is allowed that will be relevant and matters such as the nature of the concession and the timing may also be relevant, but it is not essential to demonstrate prejudice before an application to withdraw a concession can be refused. What the tribunal must do is to try to obtain a fair and just result. In the absence of prejudice, if a Presenting Officer has made a concession which appears in retrospect to be a concession which he or she should not have made, then probably justice will require that the Secretary of State be allowed to withdraw that concession before the Immigration Appeal Tribunal. But, as I have said, everything depends on the circumstances, and each case must be considered on its own merits.
In the event, the Court allowed the appeal and remitted the case to the IAT to consider whether it would allow the concession to be withdrawn.
In AK (Sierra Leone) v. Secretary of State for the Home Department[2016] EWCA Civ 999, concessions were made on behalf of the Secretary of State before a First-tier Tribunal that AK fell within Exception 1 of s.117C(3) of the Nationality, Immigration and Asylum Act 2002, as amended. The Secretary of State was permitted to withdraw that concession before the Upper Tribunal which then allowed the Secretary of State’s appeal. The Court of Appeal (Jackson and Black LJJ) allowed AK’s appeal and, in doing so, considered a number of cases where concessions were sought to be withdrawn, including Davoodipanah. Having considered the particular facts of the case, Jackson LJ concluded:
48. It follows that the concessions made by the Home Office Presenting Officer were such as to determine the entire appeal. The First-tier Tribunal Judge, as he was entitled to do, accepted those concessions. That was the end of the case.
49. I do not need to go so far as to say that in such circumstances the Secretary of State could never appeal to the Upper Tribunal, but on the facts of this particular appeal, it seems to me quite unjust that the Secretary of State, having conceded on all points, should be entitled to resurrect her case and withdraw the concessions which she had made. As [Counsel for the Secretary of State] rightly concedes, the Upper Tribunal gave no good reason for allowing the Secretary of State to take that course.
50. Against that background and some two years eight months after the Secretary of State made her concessions, I think it would be unjust to remit this case to the Upper Tribunal so that the Secretary of State can now embark upon another attempt to withdraw her concessions. In the result, therefore, if my Lady agrees, this appeal will be allowed, and the decision of the First-tier Tribunal will be reinstated.
In my view the Secretary of State’s application to withdraw the concession made before the UT cannot easily rely on principles of justice and fairness, particularly when it is sought to do so in a belated and informal way. One would expect those who seek to withdraw a concession to explain both promptly and frankly why the concession was made, why it was mistaken and why it is now just and fair that they be allowed to withdraw it. It is striking that when the application for permission to appeal to the UT from the UT decision was made, the Secretary of State’s newly instructed and experienced counsel (who was not the counsel instructed before this court) did not seek assert that there was a mistake or seek leave to withdraw the concession.
However, Mr Gill QC rightly accepted that a concession could be withdrawn if this were in the overall interest of justice; and before expressing any further views about the point, I turn to the other grounds of appeal.
Ground 2
This is a complaint that in reaching the conclusion that AM would be at risk on return to Iran by reason of his perceived conversion to Christianity and alleged anti-Islamic activity, the Tribunal failed to identify, by reference to FSand others (2004) and SZ and JM (2008), into which risk category, AM fell, failed to explain why it reached that conclusion and reached conclusions which were not open to it on the evidence.
I have already dealt, at least to some extent, with the UT’s approach to the two CG cases and the general risk to Christian converts; but in order to understand the UT’s conclusion, it is necessary to consider the issue of AM’s Twitter posting which is the subject of Ground 3.
Ground 3
Although the UT Judge considered that AM was at ‘real risk of ill-treatment’ as a purported Christian convert, the basis of his decision was that he differed from what might be described as a standard returning Christian convert by the extent and nature of his Twitter posts.
The Judge dealt with AM’s Twitter activity at paragraphs 23 to 28 of the UT decision. In summary he concluded that: (1) AM could be expected to tell the Iranian authorities that this Twitter postings were simply an attempt to gain status in the UK and that he was not a genuine Christian convert, because that was what the FtT found; however, (2) this might not be accepted by the Iranian authorities, although they would know that many Iranian asylum seekers were economic migrants; (3) it would not be ‘a leap too far’ to conclude that AM’s Twitter postings would be seen by the Iranian authorities, and that if he admitted posting Bible quotes, the matter would not be further explored by the authorities; (4) the Twitter posts went beyond ‘simply quotations from the Bible’; they included pictures of ‘Christian religious persons, at church or in other settings’; (5) one of the tweets read, ‘people in the Middle East are still finding Jesus despite it all’; (6) at one point, the appellant had 5,287 followers and ‘86,000 or so ‘likes’’; (7) there were 850 tweets.
The Judge had recorded at paragraph 17 of the decision:
Even if the authorities did not believe that he was a genuine convert, he would nevertheless be regarded as having been involved in anti-Islamic conduct, identified in SB (risk on return - illegal exit) Iran CG[2009] UKAIT 0053 as a risk factor. Pretending to be a Christian would be regarded as anti-Islamic conduct. At [472] of AB and others [(internet activity - state of evidence) Iran[2015] UKUT 257 (IAC) it was concluded that the authorities would not be concerned with a person’s motivation for their internet activity.
Paragraph 472 of ABand others (2015) is in the following terms:
The mere fact that a person, if extremely discreet, blogged in the United Kingdom would not mean they would necessarily come to the attention of the authorities in Iran. However, if there were a lapse of discretion they could face hostile interrogation on return which might expose them to risk. The more active a person had been on the internet the greater the risk. It is not relevant if a person had used the internet in an opportunistic way. The authorities are not concerned with a person’s motivation …
Mr Waite argued that the UT erred in failing to consider whether AM could have taken ‘the simple and obvious step of deleting his Twitter account’. He submitted that this was a point which the Tribunal ought to have considered of its own motion.
The Home Office presenting officer had submitted that there was no basis for a conclusion that the Iranian authorities would be aware of AM’s Twitter account such as to give rise to a risk on return, see §4 of the UT decision (cross referring to §29 of the UT’s error of law decision).
When seeking leave to appeal from the UT decision, counsel for the Secretary of State among other arguments submitted that it was relevant that there had been no finding that Iranian authorities had been monitoring AM’s Twitter feed while in this country; and that the UT had proceeded on the basis that they would look at his Twitter feed once he told them about it on questioning.
However, that conclusion is predicated on the assumption that it would still exist at that time and had not been deleted (as it clearly can be). There was no basis for such an assumption. On the contrary, it is highly unlikely that a person would not delete his cynically self-serving Twitter account if it was likely to create a risk of ill-treatment to him on his return …
Complaint was made that the UT had not considered this ‘obvious point’.
In refusing leave, the UT Judge dismissed the point shortly, observing that it did not appear to have been so obvious as to have featured in the Secretary of State’s argument until the appeal had been concluded; and that, in any event, no consideration had been given as to whether the Twitter posts, even if deleted, might still be available to view on an internet search or as to the status of re-tweets. While accepting that Twitter posts can be deleted, Mr Gill QC forcefully reiterated this point on AM’s behalf in the hearing before us.
Conclusion
Drawing these threads together I have reached the following conclusions:
(1) Although the Secretary of State was fully entitled to the view that AM’s presence in the country was not conducive to the public good in the light of his conviction for rape, in the light of the possible infraction of his rights under article 3, his removal to Iran called for a close focus on the risks of removal. It was a case requiring a particularly close analysis of the relevant issues.
(2) The implicit risks in his removal were that he would be regarded by the authorities as a Christian convert and as someone who would broadcast his Christian beliefs in Iran. Both of these possibilities had to be seen in the light of the finding that he was not in fact a Christian, and that he had deceitfully adopted the appearance of a Christian in his Twitter posts for the purposes of invoking international protection and avoiding removal to Iran.
(3) The starting point for the assessment of risk were the CG cases of FSand others (2004) and SZ and JM (2008). It is not said that these cases have been superseded and FS and others (2004) was specifically referred to in the December 2015 CIG. In R (SG (Iraq) v. Secretary of State for the Home Department [2013] (see above), Stanley Burnton LJ expressed the position thus:
46. The system of Country Guidance determinations enables appropriate resources, in terms of the representations of the parties to the Country Guidance appeal, expert and factual evidence and the personnel and time of the Tribunal, to be applied to the determination of conditions in, and therefore the risks of return for persons such as the appellants in the Country Guidance appeal to, the country in question. The procedure is aimed at arriving at a reliable (in the sense of accurate) determination.
47. It is for these reasons, as well as the desirability of consistency, that decision makers and tribunal judges are required to take Country Guidance determinations into account, and to follow them unless very strong grounds supported by cogent evidence, are adduced justifying their not doing so.
FSand others (2004) and SZ and JM (2008) may have not been the most up-to-date source of information, but they were to be regarded as the most reliable analysis of the risks faced by Christian converts in Iran: ‘For the ordinary convert, who is neither … a proselytiser or evangelist, the actual degree of risk of persecution or treatment breaching article 3 is not sufficient to warrant the protection of either Convention.’
(4) If the observation in [27] of the UT decision was to be understood as an observation that the fact that AM was thought to be a Christian convert rendered him liable to a risk of article 3 ill-treatment, it was unjustified. It was contrary to the CG guidance in FSand others (2004) and SZ and JM (2008); and if the CIG is to be read as a general observation that all returning Christian converts are at risk of article 3 harm, it overstated the position. It is troubling that the point appeared to have been conceded.
(5) However, the concession plainly did not ‘determine the entire appeal’, to adopt the phrase of Jackson LJ in AK (Sierra Leone). The UT regarded the crucial issue which bore on the particular risk to AM on his return was not his apparent (but false and deceitful) Christian beliefs; but the expression of such beliefs in his Twitter posts. The UT Judge was entitled to his view of the facts, which I have summarised in [49] above, so far as they went. However, he relied on the decision in AB and others (2015) which was not a case dealing with Twitter posts, and did not consider the questions whether the posts could be deleted and what the effect of deleting them would be? When giving leave to appeal, the single Lord Justice considered that the possibility of deletion was ‘a common-sense consideration’ and that the UT’s omission to consider these questions was one of the factors that satisfied the second appeal test, the other being the failure to have regard to the two CG cases FSand others (2004) and SZ and JM (2008). I accept that this point should have been raised on behalf of the Secretary of State, but in my view the matter should plainly have been investigated.
(6) In these circumstances, I would allow the appeal; and remit the case to the Upper Tribunal for AM’s appeal to be considered in the light of this judgment. I would also add that directions should be sought as to the admission of any evidence and further specific submissions on the Twitter issue. Without in any way seeking to discourage properly made concessions being made before tribunals, I would regard it as being in the overall interest of justice that the Secretary of State be permitted to clarify the nature and extent of the concession that he wishes to make in relation to the return of Christian converts to Iran which, for the reasons I have indicated, was unclear.
Postscript
After the judgment was distributed to the parties in draft, we received further lengthy and unsolicited supplementary submissions from Mr Gill.
The first submission was that the Court was wrong to have allowed the concession referred to in [15] above to be withdrawn. Mr Gill contended that the Court had not ruled during the hearing that it would allow the application to withdraw the concession and that, if the matter had been argued out, he would have (1) deployed further argument as to why the Court should not allow the concession to be withdrawn, and (2) applied to adduce evidence of unreported cases where the Secretary of State had made similar concessions.
The Court approached the application to withdraw the concession de bene esse, thereby conveying that any consideration of the underlying merits was without prejudice to AM’s argument that the Court should not consider it at all, in view of the way in which the Secretary of State had sought to withdraw the concession.
So far point (1) is concerned, Mr Gill’s skeleton argument at trial (§§35-40) specifically addressed the law in relation to applications to withdraw concessions, see [39]-[44] above. We are satisfied that Mr Gill had an opportunity to argue the point, and that the new submissions are simply an attempt to re-argue it. So far as point (2) is concerned, we are very doubtful whether examples of other cases where a particular concession may have been made would assist AM, unless he would have been in a position to show that there was an invariable practice which was, in some way, binding on the Secretary of State in the present case. Unsurprisingly, Mr Gill’s supplementary submissions did no go that far.
The second submission was that the Court had no jurisdiction to entertain the ground of appeal based on the UT’s failure to consider the possibility that AM’s Twitter account could have been. It is said that the Court failed to address the proper ambit of the Robinson principle, see R v. IAT ex. p Robinson [1998] QB 929. As to this point, the judgment does not allow the appeal on this ground. However, in remitting the case to the UT on the main ground of appeal, the Court indicated that the tribunal should not ignore common-sense in its reconsideration.
Lady Justice Thirlwall:
I agree and would allow this appeal. We received no explanation for the concession made before the FtT. The skeleton argument prepared for the hearing before us asserted that the officer was unaware of the guidance. Mr Waite explained that this was wrong, and the officer was aware of the Country Guidance. It follows that this was a considered concession, made in the light of the Country Guidance. I was attracted by Mr Gill’s argument that where an experienced presenting officer knowingly makes such a concession it should not be open to the Secretary of State at the second appeal stage to seek to withdraw it with no explanation for its having been made. Finality of litigation requires the appellant to be fixed with its concession. However, as Simon LJ has demonstrated the concession is inconsistent with the Country Guidance which we have found the tribunal was required to apply. It may be that the presenting officer considered the Country Guidance to have been superseded by the CIG. We do not know. Whatever the reason, the concession was contrary to the authorities and I agree that on the facts of this case it is in the interests of justice that the appellant be permitted to withdraw it.
Lady Justice Sharp:
I agree.