An Iranian national deemed by MI5 to have “an Islamist extremist mindset” has won an appeal against his refugee status being revoked.
The man, referred to as “D8”, was granted refugee status in 2017 after being smuggled into the UK in a lorry.
He claimed asylum, telling immigration officers he was forced to flee his farm in Iran after helping wounded Peshmerga fighters who had been fighting against the Iranian authorities.
After being granted leave to remain in the UK, D8—who is of Kurdish ethnicity—made a trip to visit his family in the Kurdish region of Iraq.
The court heard that during this trip, it was alleged that he made entry to Iran, where he “re-availed himself of the protection of that country.”
A decision was then taken by the Secretary of Statute to exclude him from Britain on non-conducive grounds in that he posed a threat to national security.
The SIAC heard the man supported the jihadi terror group ISIS, held an “extremist mindset” and therefore was considered a security threat.
Returned on Small Boat
Mr Justice Lay, alongside two other senior judges, heard how, after his second illegal return to the UK, the man once again insisted that he could not return to Iran due to his public criticism of the regime.This included attending around a dozen anti-Iran protests in London, where he was pictured holding a Kurdish flag and a number of pro-Kurdish public Facebook posts.
He contended that if he was deported to Iran he would face persecution which could include physical and mental torture.
Lawyers for the Home Office contested this, saying the man had safely entered and left Iran after receiving refugee status in the UK.
They also said that it was their belief his Facebook posts and attendance at rallies were to enhance his chances of receiving asylum in the UK.
D8 denied entering Iran during his trip to Iraq, which happened during the pandemic, stating that the borders had been closed and he did hold an Iranian passport.
Judges were also presented with a MI5 national security assessment of the Iranian national, which stated that “D8 holds an Islamist extremist mindset and is supportive of ISIL.”
It added: “Media coverage of ISIL, its intentions and extremist activities, and its commitment to perpetrating violence against those who it views as enemies of Islam, including Western countries, has been extensive and long-running. We assess that [D8] maintains an Islamist extremist mindset and is supportive of ISIL and, is a threat to national security.”
Persecution
Due to the national security element in the case, the SIAC heard part of the Home Office’s evidence against the man in private.Witnesses supporting the man’s case were called to the open hearing with a forensic psychologist stating that in his opinion, the man “risks being detained and interrogated on his return to Iran, the level of that risk being dependent on the length of time he has been outside the country and whether there are any problems with his documentation.”
Dr Rebah Fatah also told the court how the Iranian authorities monitor the activities of Iranian nationals abroad, including their activities online.
“Were they to become aware of D8’s social media posts, it is possible that he may be at risk of persecution on his return,” he said.
The SIAC concluded that D8 continues to have a well-founded fear of persecution in Iran. In a lengthy judgement of the complex case, the judges said that “no one can predict what suspicions the Iranians would or might have about D8”.
Adopting their “hair-trigger” approach, they “might just focus on what might be called the Kurdish aspects; they might focus on why D8 was in HMP Belmarsh and the assessment of the British government (discovered during the course of interrogation) that he poses a danger to national security; or they might focus on both,” the judges said.
“Frankly, it matters not for present purposes. There are reasonable grounds for concluding that D8 faces a well-founded fear of persecution in Iran for a Convention reason, namely his perceived pro-Kurdish political activities.”
Flawed
The presiding judges were unwilling to decide whether D8 had an extremist mindset and supported ISIS, stating that the threat assessment is “evaluative and subjective” and is not a matter SIAC can determine for itself.The court held that a “strict approach” must be taken to the national security exception and that it is a measure of “last resort”.
They said that D8’s return to Iran must only be contemplated as a last resort where no other measures are suitable.
The level of danger to national security is not balanced against the level of danger to D8 if he is returned to Iran, as this is prohibited by primary legislation under the Anti-Terrorism, Crime and Security Act 2001.
However, the judges said the home secretary “must balance the degree of danger to national security … against the cost, practicability and feasibility of any measures that may be taken to ameliorate the risk; and must demonstrate that she has regarded the Article 33(2) exclusion as a measure of last resort.”
In the particular circumstances of D8’s case, after hearing evidence and submissions on the national security assessment in a closed hearing, SIAC held that the Home Office’s approach was flawed with no balancing exercise carried out.
His appeal against revocation of his refugee status was therefore allowed.
