New country guidance case on Iranian Kurds

Legal Updates

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There is a new country guidance case on the situation of Kurds from Iran, called HB (Kurds) Iran CG [2018] UKUT 430 (IAC).  You can read the case judgment here.

Here’s the name of the case explained:

HB.  This is the initials of the person seeking asylum.  In this case, an “anonymity direction” has been made, meaning the judge has agreed to hide the details of the person involved in the case.

(Kurds) Iran.  This is what the case is about.

CG.  This stands for “country guidance”.  Country guidance cases are asylum appeals chosen by the immigration/asylum tribunal to give legal guidance for a particular country, or a particular group of people in a particular country. The decisions in these cases are assumed to be based on the best possible evidence about that country at that time. Until there are significant changes in that country, a country guidance decision sets out the law for other asylum-seekers from that country.

2018.  When the case was “promulgated” (made known, when the judgment was released).  

UKUT 430 (IAC).  This stands for UK Upper Tribunal (where the case was heard), case number 430.  IAC stands for Immigration and Asylum Chamber (there are different types of cases, such as family or employment law cases heard at the tribunal in different chambers).  

Many tribunal judgments have “headnotes” where the findings of the judge are summarised.  Here’s the headnote of this new case, with the language explained:

(1) SSH and HR (illegal exit: failed asylum seeker) Iran CG [2016] 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.

This refers to a previous, broader country guidance case which you can read here.  The headnote summary of that case said: 

a) 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. 

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.

This is the position for Iranians facing return generally – if the person seeking asylum is a Kurd, then this new country guidance case must also be considered.

(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.

If someone is discriminated against because of their race, religion, nationality, political opinion or membership of a particular social group, they will not be entitled to protection under the Refugee Convention unless that discrimination is considered to amount to persecution (or other protection if the discrimination amounts to Article 3 ill-treatment).  Read more about the difference between discrimination and persecution in our blog post here.

(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.

Being Kurdish in itself will not be enough to show you are at risk of persecution in Iran, but it is a risk factor which might create a risk of persecution when combined with the other factors listed 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.

The KRI is the Kurdistan Region of Iraq.  Again, having lived in the KRI may not be enough in itself to prove a risk of persecution and the other factors listed above will be considered. 

(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.


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