Finding themselves trapped as minorities in countries such as Iran, Iraq, Syria and Turkey, the Kurds are dubbed “a people without a country” and comprise “the world’s largest stateless nation”. While answering the question whether a failed asylum seeker of Kurdish ethnicity will be at risk of persecution on return to Iran, the Upper Tribunal found in this country guidance decision that 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. The appellant, HB, was of Kurdish ethnicity and he was a citizen of Iran. Born in 1988 in Betoosh, Sardasht, Iran, he was an only child whose parents (a shepherd and a housewife) disappeared in 1994 because of involvement in Kurdish nationalism. HB suffered burns injuries during a fire at his family home at the same time and his uncle took him to Iraq where he grew up undocumented. In Iraq, he was bullied and harassed by villagers because of a disability in his legs and his Iranian origins. Upon reaching adulthood he returned to Iran. With his uncle’s help, he raised money to pay for his journey abroad by selling his family land. He illegally exited Iran in September 2015 and arrived in the UK in early July 2016. He claimed that he was unable to live in Iraq undocumented and face discrimination without citizenship and residence rights.
Equally, he was unable to return to Iran to live because of his family’s claimed involvement with Kurdish separatists. HB’s protection claim was refused in December 2016. The FTTJ Nicholls dismissed his appeal in January 2017 but then UTJ Storey set the decision aside for it to be remade in the Upper Tribunal. Hitherto there had been 19 country guidance cases on Iran (from 2002 to 2016) and the present case became the twentieth case of this nature. In determining the appeal, the Upper Tribunal considered expert evidence from two expert witnesses, Ms Anna Enayat and Professor Emile Joffé. In imparting guidance, the Iranian regime’s poor record on human rights remained the tribunal’s point of departure. The Report of the UN Special Rapporteur on the situation of human rights in Iran to the Human Rights Council (17 March 2017) is very clear that the theocratic regime in Iran habitually abuses human rights and torture and other forms of cruel, inhuman and degrading treatment are prevalent. But the regime rejected all of the 20 recommendations on these issues made during the 2014 universal periodic review.
Kurds in Iran
Iran is a country of more than 81 million people of which at least 8 million are Kurdish making it the second largest Kurdish population outside Turkey and larger than the combined Kurdish population of Iraq and Syria. Iran reportedly executed 750 people in 2016 many of who were of Kurdish ethnicity. The Special Rapporteur observed that Kurdish political prisoners represent almost half of the total number of political prisoners in the country and executions are carried out for the crime of moharebeh (waging war against god and the state) and membership of a Kurdish political party. Speaking the Kurdish language is not banned in Iran. But the state prohibits schools from teaching it and anyone who campaigns for greater Kurdish autonomy is likely to get into trouble because the state uses security, media and other types of laws to arrest and prosecute Kurds for exercising their rights to freedom of expression and association.
Most at risk are the Kurdish kulbaran (back carriers) who are faced with blind and indiscriminate use of lethal force. They are seen as smugglers by the regime and in 2016 Iranian border security forces reportedly killed 51 kulbaran and injured 71 others, twice the casualties in 2015. Poor prospects of employment in Iran’s Kurdish regions mean that the kulbaran can only survive by taking goods across the border. They are also known as kolber, a term referring to workers who either on their own back or on horseback transport foreign goods to and from Iran by making journeys in and out of Iran’s border territories to the border areas of neighbouring Kurdish regions in Iraq and Turkey. Their plight has been widely documented. For example, in addition to the Special Rapporteur’s report, the Kurdistan Human Rights Network (KHRN) published a report which states that the Iranian state applies a shoot-to-kill policy to the kulbaran or kolber who are classified as “smugglers”.
Unsurprisingly, in Iran’s Kurdish community there is widespread resentment at the soaring number of executions of Kurds and the endemic use of torture and related techniques by the Iranian regime.
Opposition to government policies has lead to the complete banning of Kurdish-language newspapers, journals, books, publishers, journalists and writers. Kurdish NGOs are routinely oppressed and the government does not allow Kurds to register most Kurdish names for their children in official registries. The expression of dissenting views and political activism are not capital offences in Iran but the case of Shahram Ahmadi demonstrates that a person can be sentenced to death for being a Kurd and a Sunni. Executions aside, life imprisonment is the norm for anyone who is suspected of Kurdish nationalism or political activism or dissent.
The country guidance in SSH and HR (illegal exit: failed asylum seeker) Iran CG  UKUT 308 (IAC), concerned Kurdish Iranians. The Upper Tribunal made two important observations in that case. First, an Iranian male whose return to Iran is sought but who does not possess an passport will be returnable on a laissez passer, which can be obtained by him from the Iranian Embassy on proof of identity and nationality. Second, an Iranian male in whom the Iranian state shows no adverse interest 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 it has been established that the returnee exited illegally and is a failed asylum seeker. In particular, there is not a real risk of prosecution leading to imprisonment. SSH and HR is discussed at length here.
In the present case, the Upper Tribunal noted that there was a contradiction in SSH and HR because it was not suggested that a person would be exposed to the risk of persecution solely for being Kurdish, but that being Kurdish might be an exacerbating factor for a returnee otherwise of interest. There was agreement on the point that being Kurdish was relevant to how a returnee would be treated by the authorities. The Home Office submitted that that SSH and HR should be the “starting point” for the consideration of the country guidance issue in the instant case. Reliance placed in MY (Country Guidance cases, no fresh evidence) Eritrea  UKAIT 00158 was rejected by the Upper Tribunal because in SSH and HR the same country guidance issue arising in the instant case was not considered and the present appeal did not depend on the same or similar evidence. Overall, SSH and HR could not be taken as the point of departure because building upon it as a foundation would entail the implication that the “decision is authority on the issue of risk to Kurdish returnees as a distinct group, which it is not and does not purport to be.”
Both Anna Enayat and Professor Joffé were knowledgeable and experienced in Iranian and Middle Eastern matters and their vast expertise was recognised by courts and tribunals on numerous occasions in the past. But their views were non-binding on the tribunal. Anna Enayat opined that the Home Office Country Information and Guidance on Iran Kurds and Kurdish political groups version 2.0, July 2016 (CIG) only provides a “brief snapshot” of the situation in the Kurdish areas of Iran from 2012 and early 2016. She said that things have changed since then and Kurds removed to Iran are subjected to heightened suspicion and scrutiny. Her view was that the long war in Syria aroused a sense of national consciousness amongst Kurds. The result was that there was a resurgence of armed resistance by Iranian Kurdish groups affiliated to the PKK (Kurdistan Workers’ Party) in Turkey and Iraq.
This represented a major shift from the 1990s and the trend was supplemented by the mobilisation of the population in Iran’s Kurdish cities by the Iraqi Kurds in the abortive independence referendum in the Kurdistan Region of Iraq (KRI). Matters were made worse in July 2017 when Islamist Kurds attacked the Iranian parliament in Tehran and the Iranian security services conducted an operation in the Kurdish areas and increased security measures. However, Anna Enayat did not claim that Kurdish ethnicity automatically creates a risk of persecution or that all failed asylum seekers of Kurdish ethnicity were at such risk. Her oral evidence to the tribunal was that a Kurd who was not perceived in some way to be politically active would not necessarily be arrested. She also confirmed that her written report was clear that the targeting of civilians in Iran was not purely on the basis of Kurdish ethnicity.
Yet she was also suspicious of the adage that the Kurds are only at risk if they participate in political activity. She concurred with para 2.3.4 of the CIG that a range of activists or perceived activists, including cultural activists could be at risk by even expressing peaceful dissent or so much as speaking about Kurdish rights. Her views coincided with the observation in para 2.3.4 of the CIG that if a perceived sympathiser carries out an activity perceived to be against the regime then arbitrary arrest, detention and possible ill-treatment are likely for him and his family members. Perceived is an emphasised term because the Kurds are at particular risk of imputed political opinion if they somehow come to the adverse attention of the authorities.
On the other hand, despite sharing some of Anna Enayat’s views, Professor Joffé thought that the fact of Kurdish ethnicity creates a risk of persecution simply on the basis of membership of an ethnic group, quite apart from any specific threats created by illegal exit from Iran or the pendency of specific charges there. In his view, the discrimination against Iranian Kurds “is so severe that it amounts to persecution”. He said in his oral evidence that a real risk of persecution exists for an individual simply on the basis of being Kurdish. He said that was his inference from the evidence that he had seen and he asserted that Kurdish ethnicity alone would amount to a risk category as the term is propounded in TK (Tamils – LP updated) Sri Lanka CG  UKAIT 00049. HB sought to distance himself from the automatic nature of Professor Joffé’s expert view. But the Upper Tribunal did not agree with the diluted version of Professor Joffé’s evidence presented in HB’s skeleton argument which proposed that Kurdish ethnicity does not create a risk of persecution per se.
The Upper Tribunal rejected Professor Joffé’s evidence. It also rejected his view that he agreed with the outcome of SSH and HR was correct save that it did not generally address Iran’s present situation because of (i) the worsening security situation in parts of the country occupied predominantly by one of the many ethnic or religious minorities, and (ii) increased domestic tensions. The failure meant that the Upper Tribunal “has under-estimated the potential difficulties connected with the acquisition of laissez-passer documentation.” He also said that there is intensified repression of Kurds and that any suspicion of behaviour against the regime while abroad or prior to leaving Iran significantly diminishes a Kurdish returnee’s prospects of avoiding persecution upon return. Thus SSH and HR paid insufficient attention to these issues which became intensified by Iranian Kurdish reaction to the independence referendum in Iraqi Kurdistan.
Professor Joffé also said that the latest edition of the COI neglected such issues but the Upper Tribunal rejected the idea that SSH and HR is wrong in terms of its country guidance. First, it did not consider that his reasons provide a sufficient basis to reconsider the guidance in SSH and HR. Second, the present appellant had not argued such a point and it was not the basis upon which either party had advanced the appeal.
HB submitted that official figures show that asylum claims by Iranians in the UK dramatically increased from 3,242 claims in 2015 to 4,192 in 2016. However, the Upper Tribunal rejected the idea that a rise in asylum claims by Iranians was a corollary of more Iranians needing international protection. The spike in claims was a function of economic circumstances in Iran, or a change in destination of choice, or unknown factors in terms of the actions of people smugglers.
The numbers did not tell the story HB contended for because asylum claims by Iranians were not recorded by distributing them along the lines of ethnicity and so “little, if anything, of relevance can be deduced from the numbers in that context.” The idea that figures on voluntary returns to Iran assisted HB’s case was rejected because the Country Policy and Information note for Iran, version 4.0, December 2017 pointed out that poor economic conditions, soaring inflation and widespread unemployment deterred people from returning to Iran rather than persecution. The Upper Tribunal was quick to reject the submission that the Home Office deliberately concealed information by not providing a break up of Iranian asylum claims by ethnicity to hide the true number of claims made by Kurds rather than other Iranians. There was no bad faith by the Home Office in that regard and the government was simply trying to save the disproportionate costs of providing a full analysis of Iranian asylum claims by ethnicity. However, the overall effect of the methods employed to record information was such that nothing of evidential value could be deduced from the information regarding the numbers of asylum claimants from Iran or returnees.
Country guidance and conclusions
The Upper Tribunal refused to give any guidance on the risk of persecution where an individual is involved – online on social media networks whether in Iran itself or elsewhere – in the making, publicising or distributing critical, insulting satirical views about Islam, religious figures, the Qur’an, Iranian policies or the theocratic regime. Sizing up the situation against all the relevant issues in play, the Upper Tribunal imparted the following country guidance:
(1) SSH and HR (illegal exit: failed asylum seeker) Iran CG  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.
The Upper Tribunal allowed HB’s appeal on asylum and human rights grounds with reference to Article 3 of the ECHR. It made some important observations about FTTJ Nicholls’s decision where the judge had accepted the core account of HB’s case as credible but had nevertheless dismissed the appeal because of other reasons. FTTJ Nicholls accepted that he was never involved in political activities despite being a supporter of Kurdish rights. Any dispute over how HB’s parents’ house was burnt down was resolved in his favour. The tribunal preferred the view that, rather than a Kurdish group, the Iranian authorities set the house on fire because of HB’s parents’ support for Kurdish peshmerga fighters to whom they had probably offered food and hospitality.
The Upper Tribunal also considered evidence in the form of HB’s social media profile, evidence that had not been put to FTTJ Nicholls. On Facebook he shared posts by the Democratic Party of Iranian Kurdistan (PDKI), Scotland and other Kurdish self-determination activists in Denmark. These shares were graphic in their depiction of Ayatollah Khomeini (who was shown as a dog, or with genitalia superimposed on him or being similarly demeaned) and made reference to the glory of Kurdish martyrs. Other content was such that it referred to the Iranian regime as a terrorist entity and celebrated the death of the former president of Iran Ali Akbar Rafsanjani. It was clear from AB and Others (internet activity – state of evidence)  UKUT 257 (IAC) that the Iranian authorities routinely look into returnees’ social media profiles and that they would be interrogated about their Facebook and email accounts, which would be checked upon return.
The Upper Tribunal opined that the important decision in RT (Zimbabwe)  UKSC 38 “requires no clarification” since a claim for asylum should not be defeated on the ground that an individual who had no political views, and who therefore did not support the persecutory regime in his home country, would lie and feign loyalty to that regime in order to avoid the persecutory ill-treatment to which he would otherwise be subjected. Applying RT (Zimbabwe) it could not be expected of HB that he should lie about his political beliefs in support of Kurdish rights, matters about which he is reasonably likely to be directly questioned given his particular circumstances.
Trump’s unilateral withdrawal from the JCPOA and his extreme demonisation of Iran in particular, and Islam in general, will only harden the attitudes of Tehran’s mullahs against dissent. The ending of sanctions and the accompanying boost to economic development would have been game-changing events because after decades of isolation Iran would finally open up to the western world and become fully reconnected to the global economy. Rising economic hardship resulted in huge protests all over Iran last year and it is clear that Iranians are fed up with being oppressed by mullahs in the name of Islam. The regime has also expanded its campaign to detain dual nationals to exert leverage over Western countries. Dozens of dual nationals have been detained since 2017 and the predicament of the Iranian-British mother Nazanin Zaghari‑Ratcliffe is at the apex of the terrible ongoing suffering in that regard. She has been held as a political pawn by Iran since her arrest on 3 April 2016 and is separated from her husband Richard and their little daughter Gabriella who is living with her grandparents in Tehran while her mother is imprisoned in the notorious Evin prison.
Iran is also reviled for its instrumental support of Bashar al-Assad in Syria’s war and for arming and training Houthi rebels in Yemen against the western backed Saudi coalition. Terrible as Iran’s regime might be, overall there can be no reliefs for its minorities such as the Kurds and innocent imprisoned dual nationals such as Nazanin Zaghari unless the hand of friendship is extended to Tehran.
Apart from Kurds, who are overwhelmingly Muslim in their religious beliefs and are disliked on the basis of their ethnicity, the Iranian state habitually persecutes Ahwazis, Christians, Jews and Baha’is. Ultimately it is a cruel irony of history that Saladin, the legendary Sultan of Egypt and Syria who reconquered Jerusalem from the crusaders in 1187, was a Kurd but that colonialism cheated the Kurdish people out of their right to self-determination and statehood, leaving tens of millions of them scattered all across the Middle East.