GN (Iran) v Secretary of State for the Home Department

In assessing risk on return under Article 3, past persecution or mistreatment is relevant but does not automatically establish future risk. The tribunal must examine why the claimant was targeted and may find that adverse treatment was directed at stopping an activity rather than pursuing the claimant personally, provided the inference is supported by evidence and explained. A challenge succeeds only where the risk assessment contains a material error of law or an unsustainable finding. Illegal departure and return as a failed asylum seeker do not, without more, establish an Article 3 risk. Evidence is required that the authorities at the point of return act on relevant historical information and subject returnees to treatment reaching the Article 3 threshold. Prosecution for illegal departure may still occur where its consequences fall short of that threshold.

The appellant, an Iranian citizen, claimed asylum after leaving Iran following detention, torture and repeated harassment by the religious police in connection with his gym. The Secretary of State refused the claim. An immigration judge dismissed the appeal on 3 August 2005, and the AIT’s second-stage reconsideration determination, promulgated on 27 April 2007, was also adverse to the appellant.

The AIT accepted the appellant’s account of his past treatment but concluded that the authorities had sought to close the gym rather than pursue him personally. The appeal concerned whether that assessment was legally unsustainable and whether the AIT had failed to assess risks arising from illegal departure and return as a failed asylum seeker. The central issue was whether return would create a real risk of treatment contrary to Article 3.

Maurice Kay LJ gave the judgment of the court. Lawrence Collins LJ and Sir Paul Kennedy agreed. The appeal was dismissed.

1. Past treatment. It was permissible, and necessary, for the AIT to examine why the appellant had previously been targeted when assessing future risk on return. The AIT accepted the appellant’s evidence of detention and torture, treating it as relevant but not necessarily determinative. That approach accorded with the legal principle identified in Nenni v SSHD [2004] EWCA Civ 1077 at paragraph 21.
2. Purpose of the authorities’ conduct. The AIT was entitled to infer from the evidence that the religious authorities were seeking to close the gym in the form in which it was operated, rather than pursue the appellant personally for adultery. Its reasoning, particularly in paragraph 51 of the determination, was clear and contained no material error of law. The finding was not unsupported by the evidence or perverse. The gym had since closed, further reducing the basis for future interest by the religious authorities.
3. Illegal departure and failed asylum claim. The appellant had not placed before the AIT material showing that civilian authorities at Tehran airport would act on historical information from the religious authorities and subject him to treatment reaching the Refugee Convention or Article 3 threshold. The objective material also showed that illegal departure and return as a failed asylum seeker, without more, did not create a risk of Article 3 ill-treatment. Illegal departure might lead to prosecution, but the identified consequences fell short of Article 3.
4. Disposition. The appellant could not identify a material error of law in the AIT’s determination. The formal order was: appeal dismissed.

1. Court of Appeal (Civil Division) — In [2008] EWCA Civ 112, the appeal from the AIT was dismissed.
2. Asylum and Immigration Tribunal — The second-stage reconsideration determination, promulgated on 27 April 2007, upheld the adverse outcome.
3. Immigration judge — The appellant’s asylum appeal was dismissed on 3 August 2005.