Safe to Return: Asylum and Unlawful Exit from Iran

SSH and HR (illegal exit: failed asylum seeker) (CG) [2016] UKUT 308 (IAC) (29 June 2016)

With former home secretary Theresa May at the helm as prime minister, these days the British are preoccupied with hammering out a good Brexit deal with Europe. This intriguing case involved exiting Iran by illegal means. The invasion of Iraq in 2003 was a moment of huge disempowerment for secular Sunni Arabs. As the Chilcot Report has confirmed, military action was premature if not entirely misconceived and unjustified. Diplomatic options, which remained underutilised, were a far superior way of dealing with Saddam Hussein. Apart from successes for the historically betrayed Kurds who finally have some autonomy, a resurgent Iran has greatly benefitted from the lawlessness prevalent in the new Iraq and these days the commander of the Iranian army’s elite Quds force – which specialises in clandestine operations and foreign wars – Major General Qasem Soleimani seems to be calling the shots in hotspots like Fallujah and Aleppo. The spillover from the invasion also ignited the Syrian civil war, which may have led to as many as 470,000 deaths by some estimates. A similar death toll has also been reported for Iraq. One thing is for sure. Like much of the Middle East, Iraq has been transformed from an orderly dictatorship into a mixture of unruly militia territories interspersed with ISIS controlled zones.

Another consequence of Iraq has been the west’s paralysis over intervening in Syria, a failure cleverly milked by president Putin. After having suffered heavy losses during the Iran-Iraq War (1980-1988) revenge must be extremely sweet for the Iranians who are now in control in Iraq. They are also no longer directly at loggerheads with western powers because of last summer’s JCPOA. The two appellants in this case, SSH and HR, were both of Kurdish ethnicity. SSH claimed membership of Party for a Free Life in Kurdistan (PJAK) and said he stored arms in his house but his account was entirely disbelieved as a fabrication. HR claimed to have conducted political activities such as distributing pro-Kurdish leaflets/books to other like-minded Kurds and said his activities led him to fear for his safety when Iranian authorities apprehended a friend who was similarly active in politics.

Context

HR’s general political views were accepted as valid but his rank and file membership of any particular political party was found to evidentially lacking. His claim was adjudged as incredible and it was held he was most unlikely to be identified by reference to his activity/presence on the internet. Dr Kakhki assisted the Upper Tribunal as an expert. He had also given evidence in SB (risk on return – illegal exit) Iran CG [2009] UKAIT 00053 and said that distinctions existed in respect of those who left Iran lawfully in comparison to those who left unlawfully. Yet it was also the case that persons who came to be undocumented during their stay in the UK would have to participate in the same process. A national’s entry into Iran must be by way of a passport or by travel document or a “barge obour” (or a laissez passer), a temporary embassy issued travel document with a 20-day validity period for only one entry.

A laissez passer can be acquired by completing an application form proving identity photographically in the form of an original Iranian birth certificate and/or a national identity card. A ticket or a booking confirmation and a home office letter of status in the UK are also required which in effect means that, because Iranian nationals cannot be expected to lie, an applicant must divulge to the embassy whether they are a failed asylum seeker and not just someone without leave.

Dr Kakhki was of the view, in light of the information provided by embassy officials, that anyone who can prove they are Iranian is entitled to a laissez passer and hence his stance was different from the one taken by a 2008 report of the Danish Refugee Council. Presumably, those without a passport would have to prove whether or not they left Iran legally. But the Iranian system’s ability to detect whether a person left the country illegally but later claimed to have lost their passport was not really a live point in the appeal, which proceeded on the basis that Iranian law enforcement would or would be made aware of the illegal exit from Iran by both SSH and HR.

Dr Kakhki also said that when someone applies for a laissez passer their activities while outside of Iran are screened by way of security checks and any discoveries and connected information are transmitted to the security infrastructure at home. In the present cases, the tribunal was of the opinion there would be no reason why an application for a laissez passer would not be granted to an undocumented Iranian, who had left Iran illegally and was a failed asylum seeker.

Return

Those returning to Iran on a laissez passer are questioned. It was said that upon return to Iran, SSH and HR would be exposed to lengthy and intense interrogation and the techniques employed during the period of questioning would violate article 3 ECHR. According to Dr Kakhki, the pair also ran the risk of being included on a “wanted list” for arrivals but he was unable to confirm the point because as a confidential document the list is publicly inaccessible. It was thus evidentially unclear that a person returned on a laissez-passer would automatically be on a wanted list.

SB (risk on return – illegal exit) contemplated, at para 63, indefinite detention while a returnee’s case was investigated further. But context governed the point, which was only in play where someone confessed his lies to the military court judge and had jumped existing bail – subsequently failing to surrender to the authorities. Though no evidence was heard to lead to the conclusion that merely having exited Iran illegally might cause a person to be subjected to persecution, BA (demonstrators in Iran – risk on return) Iran CG [2011] UKUT 36 (IAC) shows that immigration history, including the mode of exit from Iran, impacted whether official action on return would be triggered.

AB & Others (internet activity – state of evidence) Iran [2015] UKUT 257 (IAC), see here, records the creation of a “pinch point” when the act of returning someone to Iran occurs. The result is to bring returnees into direct contact with the Iranian authorities; who have both the time and inclination to interrogate them. The case shows someone who left Iran illegally but returns there after a reasonably short period of time on an ordinary passport would almost certainly not attract any particular attention at all. Yet the tribunal also said those without any form of leave returning on a special passport would generate enhanced interest and the authorities’ interest in persecuting them would be a function of the degree of activism they manifested. For the present tribunal, the finding, which was not evidence based, amounted to “comment”. It was limited to the context of evaluating risk on account of blogging activities and the finding on activism was inapplicable to a person with no relevant profile.

The January 2016 Iran: Illegal Exit guidance given by the home office highlights that as far as the International Organisation for Migration (IOM) is aware nobody is arrested when voluntarily returning to Iran on a laissez passer. Though the IOM has no knowledge of the situation of deportees, it says official questioning of someone returned on a laissez passer might take a few hours but it was unclear whether this was true for those exiting illegally. Of course, things are different for people involved in criminal activities abroad with their name on the Interpol list. The guidance notes the Director General of Consular Affairs at Iran’s Ministry of Foreign Affairs has been quoted as saying that a person who has left Iran illegally and who was not registered on the list of people who cannot leave Iran (presumably Tehran’s equivalent of an Islamabad-style “exit control list”) will not face problems with the authorities upon return though they may be fined.

It was unclear what happened to those unable to pay the fine, which apparently ranges from US$200-300. Discretionary “taaziri” punishment – as opposed to fixed punishment – whose severity lies with the judge is inflicted. Although no examples of persons actually being imprisonment are provided, the guidance mentions Dr Kakhki’s view that deterrent sentences for exiting illegally range from one to three years’ imprisonment. Other western sources hinted that returnees might face questioning for three to five hours by the Iranian Revolutionary Guards Corps (IRGC) and knew of two such cases. Yet, despite the possibility of fines for illegal exit, it was uncertain whether any further consequences resulted from such interrogations.

Much less uncertainty surrounded the human rights violations flowing from arbitrarily lengthy pre-trial detention, torture and poor prison conditions in Iran but an overall consensus suggested those who exited illegally would be fined and questioned. But the evidence did not indicate that the type of questioning or where it took place gave rise to ill-treatment. Nothing suggested that the questioning amounted to pre-trial detention and the evidence did not establish that it would be conducted in a prison.

Risk

However, none of this says anything about the extra risk incurred by someone who first exits illegally and then becomes a failed asylum seeker. Such persons may possibly be confronted with the dilemma presented by the fact that in the process of claiming asylum they may have potentially partaken in propaganda against the Iranian state, in breach of article 500 of the Islamic Penal Code, and are thus exposed to potential criminal liability entailing a period of imprisonment from three months to one year. Article 500 is the brutal regime’s tool to truncate peaceful exercise of the rights to freedom of expression, association and assembly. The provision’s interpretation is entirely left to the discretion of judges.

As seen in the Country Origin Information Service Report (January 2013), which draws on the work of Amnesty International and the Swiss Refugee Agency, judicial figures in Iran do not deny that asylum seekers are interrogated on return irrespective of whether they have been political activists in Iran or abroad. In the event they have tried to conduct propaganda against Iran they are culpable and are detained until an appropriate judicial sentence is passed. But whether a failed asylum seeker will definitely face exposure to the offence of propaganda against the state remained shrouded in uncertainty.

Amnesty International’s Flawed Reforms: Iran’s new Code of Criminal Procedure (2016) report did not categorise failed asylum seekers as persons who fell within the scope of article 500. However, Australian guidance cross-referenced in Irish publications concluded as to a lack of clarity about whether the ill-treatment concerned is connected to political beliefs imputed by authorities because of asylum claims made while abroad. Though returnees do not always remain free of actions such as simple monitoring and ill-treatment during detention or interrogation, the full details of the cases involving ill-treatment and whether they concerned failed asylum seekers were unknown.

Other information from Landinfo pointed out that UNHCR was unaware of cases where Iranian asylum seekers returning to Iran from Turkey were being subjected to imprisonment or torture and little was known of the overall treatment of returned asylum seekers as a whole.

Interest and Questioning

But interest in asylum seekers is in the ascendant and Judge Mallahzadeh, quondam justice of the Supreme Court of Iran, explained in 2011 that Iranians who have attempted to obtain a grant of asylum by fabricating false stories risk prosecution and allegations of spreading propaganda against the regime. Despite whatever shortfalls are attributable to the Iranian authorities’ capacity to track such cases and the courts’ ability to process them, the Landinfo report regarded the speech by the judge as a clear warning. The overall conclusion was that Iran’s masters are becoming increasingly fixated with dissenters’ political activity abroad, whether conducted by exiles or asylum seekers and perceive it as provocative and disrespectful. So, the regime’s tactics arguably signal a new heads on sticks strategy.

Yet mere statements alone, without any examples of such cases in the subsequent period, made by a judge in 2011 were insufficient to establish a real risk of prosecution under article 500. The issue of risk during the time of questioning on return – under discussion by the tribunal – also remained unaddressed. A handful of cases of returnees (three men and a woman) from Norway entailed serious ill-treatment but their circumstances were far from clear. One case was distinguishable as a man had been returned on an identity card – and not a laissez passer the grant of which is based on a positive identity check – which Iran’s authorities claimed was false.

A February 2016 letter written by an official named Mr Griffiths, the assistant director of immigration enforcement, emphasised that with 39 enforced returns and 228 voluntary departures a total of 267 failed asylum seekers have been returned to Iran since 2013. All the individuals involved were in possession of valid travel documents or expressed, to their embassy, a wish to return to Iran. Mr Griffiths aligned his tactics with the FCO’s Chargé d’Affaires in Tehran who informed him that the director of the Ministry of Foreign Affairs Social Department’s advice was that Iranian nationals entering Iran on a laissez passer generally face minimal formalities at the airport. They only need to fill out a form, which takes 10 minutes, and can then go free unless they had been involved in or suspected of having been involved in a crime when abroad.

Presumably because the answer was implicitly provided, no express answers were provided in response to questions eliciting details of lengthy investigations upon return, bail, imprisonment, the mode of investigation or the existence of a court at Tehran Airport especially designed to handle undocumented returnees. From SSH and HR’s perspective the exchange was inadequate. It failed to provide detailed analysis and was utterly incorrect in asserting that those exiting illegally were not questioned upon arrival in Iran. The tribunal saw force in the argument that questioning was routine because – echoing Judge Mallahzadeh – Austrian and Swiss sources suggested that prior to being released returned asylum seekers were detained for several days while police vetted their credentials to verify they had not participated in any political activities. The tribunal saw no reason to doubt Dr Kakhki’s evidence that there is a special court at or near the airport for considering the cases of returnees.

However, overall the evidence did not demonstrate that the consequence of attending the special court would necessarily entail a real risk of ill-treatment in breach of article 3 ECHR amounting to persecution. If anything, the evidence showed no more than questioning upon return and if something negative in a person’s history really stood out then there would be a risk of further questioning, detention and potential ill-treatment. As Dr Kakhki explained, the treatment received depended on each individual case. Those who cooperated and admitted they exited illegally and claimed asylum would not be ill-treated for such behaviour alone, and the questioning, if any, would be fairly brief. The upshot for the tribunal at para 23 was that someone with no history other than that of being a failed asylum seeker who had exited illegally and who could be expected to tell the truth when questioned would not face a real risk of ill-treatment during the period of questioning at the airport.

Propaganda Against the State?

Once the facts had been established a person became exposed to punishment pursuant to the crime of committing propaganda against the state, i.e. the offence under article 500 of the Islamic Penal Code. Dr Kakhki’s expert view was that even though ill-treatment violating article 3 ECHR may not occur during the questioning itself it did occur in cases where persons were sent to prison for propaganda. The tribunal accepted, and it was common ground as conceded in paragraph 3.17.13 of the Iran Operational Guidance Note (OGN), that the evidence clearly showed the existence of a real risk of persecution/ill-treatment in breach of article 3 for those who are imprisoned in Iran. Dr Kakhki agreed that activists or protestors could be distinguished from SSH and HR, who had no history, but he attested to the existence of a separate crime of illegal exit attracting a distinct punishment. For example, Rostami – one of the three men mentioned above – was punished despite being only 16 years old upon exit. The home office insisted his activism was an aggravating factor in his case but the tribunal was not sure of the exact circumstances in the matter.

Dr Kakhki found a correlation between leaving the country illegally (in breach of the exit rules) and seeking asylum abroad (in breach of article 500) with the consequence that accusations of both exacerbated the intensity of punishment inflicted on an individual on return to Iran. “Propaganda” and “security” remained undefined and covered wide-ranging conduct and the mere allegation of ascribing persecutory tendencies to the regime equated with anti-state propaganda risking exposure to the retribution discussed by Judge Mallahzadeh.

The four cases relied upon lacked sufficient information about all the facts and there was a significant lack of examples subsequent to that. In making examples of miscreants, it would be desirable for the state to advertise punishing those who insulted Iran and show it meant business in order to deter others from doing the same. Dr Kakhki said he updated himself by interacting with Iranian lawyers and the tribunal found it unlikely that stories about failed asylum seekers’ prosecutions, pursuant to article 500 for insulting the state, would not find their way into the news. Official views held by Iran’s Prosecutor General about the prosecution of anyone who undermined national security – a broadly defined term in the OGN – did not match up with the actual metrics on the subject available in the public domain.

Against that, nothing indicated that either the state or the legal profession were active in suppressing the emergence of the details – whose public disclosure was an asset in view of a deterrent policy – of such cases. Properly understood, the Iranian Prosecutor General’s viewpoint was probably indicative of the policy towards persons collaborating with America (Great Satan) and Israel (Little Satan) against Iranian interests. (Little Satan may also refer to the UK.) It would thus be easy for Iranian authorities to distinguish between cases of actual anti-state activities and cases where in the interests of advancing their economic circumstances Iranian citizens made up stories in order to secure economic betterment in a wealthier country. The tribunal said Dr Kakhki’s suggestion that width of the phrase “national security” captures the activities of failed asylum seekers was untenable because it was excessively speculative and the lacked an evidential foundation.

In ventilating other examples of persons tried for departing Iran illegally and other offences, the tribunal found that the sample of cases demonstrated the Iranians’ propensity to prosecute and imprison individuals for the distinct offence of illegal exit. Yet such examples remained clearly distinguishable from cases “where there is no history and where the person is no more than a failed asylum seeker who exited Iran illegally.” Even though cases involving corrupt businessmen (Mr Jazari) and the spreading of disinformation (Ms Bayazidi) were clearly in the domain of political dissidence, those concerned were imprisoned because of “specific activity” rather than “a simple imputation”. So it was an unrealistic to insist that a failed asylum claimant would be considered a failed political dissident because of their unsuccessful claim. The tribunal therefore held:

31. … The examples given show that people found guilty of another offence may in addition receive a prison sentence for illegal exit, but they do not show that people are sentenced to imprisonment for illegal exit per se. Indeed, the evidence suggests that there is no appetite to prosecute for illegal exit alone, but if there is another offence, illegal exit will be added on.

Dr Kakhki supplied emphasis to the material differences since SB (risk on return – illegal exit) Iran – in particular Judge Mallahzadeh’s remarks and Rostami’s case – but these were held as being insignificant. The purported differences fell well short of showing any changes, as did the key arguments mounted on the basis of the Landinfo report. As persons with no history other than being failed asylum seekers, SSH and HR failed to show that there is a real risk to them because they exited Iran illegally and would face a real risk of persecution. Far too much ambiguity surrounded individual cases’ full circumstances. Scant information made it impossible to state with confidence whether adverse interest in a returnee was triggered by illegal exit or by his failed asylum claim, taken either alone or together.

Kurdish ethnicity is clearly relevant to how the authorities treat returnees. But it was not argued that risk on return arose for reason of being Kurdish alone. The OGN concedes at paragraph 3.12.14 that like other minority groups Kurds are highly susceptible to arbitrary arrest, prolonged detention and physical abuse. The tribunal conceded that minority status “might be an exacerbating factor for a returnee otherwise of interest.” But in the absence of clear evidence based examples of ill-treatment, it remained unconvinced that returnees with no relevant adverse interest factors other than their Kurdish ethnicity were at risk of ill-treatment.

Therefore, SSH and HR failed to demonstrate a real risk on return to Iran because of questioning at the airport or being convicted of the offence of illegal exit. In any event, illegal exits are not routinely prosecuted and when charges are brought the punishment is a fine. The tribunal was unconvinced about the existence of a real risk of prosecution under article 500 for propaganda against the state on the basis of having made an asylum claim which was found to be false.

Country Guidance

  • An Iranian male whom it is sought to return to Iran, who does not possess a passport, will be returnable on a laissez passer, which he can obtain from the Iranian Embassy on proof of identity and nationality.
  • 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.

Comment

De-Ba’athification in Iraq resulted in disenfranchised secular Sunnis turning to jihadism. President Obama, who vowed to end his country’s foreign wars in the Muslim world, has recently sent 560 troops to help with recapturing Mosul – Iraq’s second largest city, home to Christians and Yazidis, which has been in ISIS hands since mid-2014. The deployment bolsters US troops in Iraq to a total of 4,647 and Obama says a force of 8,400 troops will also remain in Afghanistan when he finally leaves the White House in January 2017.

Other extremist Sunnis in Saudi Arabia, perhaps America’s greatest ever ally, were naturally strengthened by a weak and destabilised Iraq. Saddam’s scud attacks are probably still fresh in the minds of Saudis. The Iranians consider his bloody war against their country nothing short of Karbala, where Muhammad’s family was mercilessly slaughtered in 680 AD. Ultimately, despite the west’s designs, whatever happens in the neighbourhood depends on the actions of both these rival regional superpowers.

Interestingly, Turki al-Faisal, the former Saudi ambassador to the UK and US who was also the kingdom’s intelligence chief, recently addressed a meeting of the once proscribed Islamist-Marxist group Mojahedin-e-Khalq (MeK) (for which he had expressed past support despite the group’s obscure status in Iran, where it is still proscribed). MeK’s leader Maryam Rajavi – see here – was excluded personally by Theresa May (in her capacity as home secretary) from coming to the UK to address Parliament and the decision was upheld by the Supreme Court in December 2014.

Mohammad Javad Zarif accused Riyadh of mingling with terrorists. In a stinging rebuke, the Iranian foreign minister called prince Turki “the creator of al Qaida and the Taliban” and concluded that like Saddam the Saudis “are tying their fate to that of terrorists.” Equally, IRGC’s Brigadier General Ramezan Sharif said on behalf of Iranian security forces that the meeting exposes Riyadh’s “old ties” with “terrorists”. Relations reached a new low point earlier this year in January when Riyadh severed diplomatic ties with Tehran because of the ransacking of the Saudi embassy after the Saudis executed Sheikh Nimr al-Nimr on terrorism charges. Notably, the US Congress has also just released a 9/11 document potentially showing Saudi links to al Qaida.

Tehran regards Bashar al-Assad as “the glue that holds much of Syria together” but that may be less problematical in the future given that even Turkey (where a coup has just been thwarted) is now softening its stance on Syria, perhaps because the resilient Syrian dictator quite literally is the “last man standing”. After last Thursday’s attack in Nice which left at least 84 people dead, Moscow and Washington have united in their concern that Syria is the principal global “incubator” for terrorism. In the existing status quo, Iran’s murky involvement in Syria’s battlefields and its support of extremist groups such as Hezbollah in the Lebanon may soon become an asset for the west which is too afraid – or paralysed – to put boots on the ground to stop the Salafi jihadists. Of course, the idea of military alliances between Iran and the free world are a source of overwhelming concern for people like Israeli prime minister Benjamin Netahyahu whose entire political career has been constructed on the fear of the “terrorist” Persian bogeyman.

In his August 2015 visit to Iran former foreign secretary Philip Hammond (now chancellor) eschewed the popular western caricature of Iran as a theocratic and backward place and said:

But what I’ve seen is a perfectly normal, bustling dynamic, entrepreneurial, thrusting, middle-income developing country that clearly has enormous potential, not a regimented, disciplined society under the thumb of the authority.

Clearly, the UK and Iran are close to becoming friends again. The two quarrelling nations reached a milestone when Hammond reopened the British embassy in Tehran on 21 August 2015 almost four years after it was trashed by a Basiji mob of Iranian students who burned the Union Jack and vandalised diplomatic premises.

Even Ayatollah Ali Khamenei conceded that the attack was “not right” but he only did so with the caveat that “the [general] sentiments of the youth” vis-à-vis the “evil embassy” had been correct. “History is history,” Hammond stoically said as the Iranians simultaneously reopened their mission in London. Tour operators are keen promote Iran and the country is “expecting a ‘tsunami’ of tourists in the post-sanction era.” The global banks have their eyes on the country’s vast markets. Huge business opportunities exist in Iran and when the great thaw in relations is finally complete it will become even harder for failed asylum seekers to argue that they will be ill-treated on return. Hopefully, as Iran becomes fully reconnected with the world’s economy and things there begin to boom, failed asylum seekers will no longer dread returning home.

About mkp

Advocate High Courts of Pakistan
This entry was posted in Article 3, Asylum, Blogging, Brexit, ECHR, FCO, Iran, Iraq, Politics, Refugee Convention, Syria, Terrorism, Tribunals and tagged , , , , , , , . Bookmark the permalink.

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