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

In an Article 3 deportation appeal, the fact that a returnee may be perceived as a Christian convert does not by itself establish a real risk of ill-treatment. The tribunal must apply relevant country guidance, or explain any justified departure from it, and assess the individual risk closely. Where risk arises from online religious activity, the tribunal must examine the nature and extent of the activity, including whether posts or accounts can be deleted and whether deleted material remains accessible. A concession may be withdrawn where the overall interests of justice require it, having regard to matters including timing, prejudice and the nature of the concession. The appeal was allowed and remitted.

AM, an Iranian national convicted of rape, was subject to deportation under regulation 19(3)(b) of the Immigration (EEA) Regulations 2006. The First-tier Tribunal dismissed his appeal under Articles 3 and 8 and upheld a certificate under section 72 of the Nationality, Immigration and Asylum Act 2002.

The Upper Tribunal allowed AM’s appeal and remade the decision, finding that removal would breach Article 3. It considered that Iranian authorities might discover extensive Twitter activity presenting AM as a Christian and involving anti-Islamic conduct. The Secretary of State appealed, alleging failure to apply relevant country guidance, inadequate assessment of risk and failure to consider deletion of the Twitter account. The central issue was whether the Upper Tribunal had lawfully assessed the real risk on return.

The appeal was allowed and the case was remitted to the Upper Tribunal for reconsideration. Lady Justice Thirlwall and Lady Justice Sharp agreed with the judgment of Lord Justice Simon.

1. Country guidance. Specialist immigration tribunals are expected to identify and apply relevant country-guidance determinations. Such guidance is authoritative where the later case concerns the same country-guidance issue and depends on the same or similar evidence. It should be followed unless superseded, replaced, inconsistent with binding authority, or displaced by very strong grounds supported by cogent evidence. Failure to follow it, or to explain why it does not apply, may constitute an error of law. The relevant guidance in FS and others and SZ and JM remained the appropriate starting point. An ordinary Christian convert was not automatically at real risk of Article 3 ill-treatment, although a more active convert might be.
2. Individual assessment. Article 3 protection is absolute. The public-policy basis for deportation did not reduce the need for a particularly close analysis of the risks on return. The finding that AM was not a genuine Christian did not conclude the risk assessment. His perceived conversion, alleged anti-Islamic conduct and extensive online activity had to be assessed together.
3. Twitter activity. The Upper Tribunal was entitled to make the factual findings it made about the posts. However, its reliance on AB and others was insufficient because that case did not concern Twitter posts and did not address whether the account or posts could be deleted. The tribunal should investigate whether deleted material might remain available through searches or re-tweets. The omission required remittal.
4. Withdrawal of the concession. There are no inflexible rules governing withdrawal of a tribunal concession. The court must seek a fair and just result under the overriding objective in Part 1.1 of the Civil Procedure Rules 1998, considering matters such as prejudice, the nature of the concession and timing. A belated and informal application should ordinarily be supported by a prompt and frank explanation. Unlike the circumstances in AK (Sierra Leone), the concession did not determine the entire appeal because the Twitter issue remained decisive. In the interests of justice, the Secretary of State was permitted to clarify and withdraw the unclear concession. Directions were to be sought concerning further evidence and submissions on Twitter activity.

The Court stated in the postscript that it had not allowed the appeal on the separate ground concerning the Robinson principle, but the Upper Tribunal should take common-sense considerations into account on remittal.

1. Court of Appeal (Civil Division): On 6 December 2018, allowed the Secretary of State’s appeal and remitted AM’s appeal to the Upper Tribunal for reconsideration: [2018] EWCA Civ 2706.
2. Upper Tribunal (IAC): On 13 September 2016, allowed AM’s appeal against the First-tier Tribunal’s decision on error-of-law grounds and directed that the decision be remade. On 25 January 2017, the Upper Tribunal remade the decision and allowed AM’s appeal, finding that removal would breach Article 3.
3. First-tier Tribunal: On 11 May 2016, dismissed AM’s appeal against the deportation order under Articles 3 and 8 and upheld the certificate under section 72 of the Nationality, Immigration and Asylum Act 2002.