Case No: C5/2013/3297
Neutral Citation Number: [2015] EWCA Civ 491
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge Martin
AA/09151/2012
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday 20th March 2015
Before :

LORD JUSTICE RICHARDS
and
LADY JUSTICE SHARP
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Between :

	BM (Iran)	Appellant	
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	Secretary of State for the Home Department	Respondent	

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(Transcript of the Handed Down Judgment of
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Raza Halim (instructed by Kesar & Co. Solicitors) for the Appellant
David Blundell (instructed by The Government Legal Service) for the Respondent

Hearing date : 12 May 2015
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Judgment
Lord Justice Richards : 
1.	The appellant is a national of Iran who entered the United Kingdom illegally on 26 July 2012 and made an unsuccessful claim for asylum.  His appeal to the First-tier Tribunal (“FTT”) on asylum, humanitarian protection and human rights grounds was dismissed by First-tier Tribunal Judge Vaudin d’Imecourt in a determination dated 11 December 2012.  On further appeal to the Upper Tribunal (“UT”), Upper Tribunal Judge Martin held in a determination dated 25 September 2013 that there was no material error of law in the FTT’s determination.  An appeal is now brought to this court against the UT’s determination.  Permission to appeal was refused on the papers by Sir Stephen Sedley but was granted by Kitchin LJ on an oral renewal.
2.	There are two grounds of appeal.  In summary, they are:  (1) that the FTT erred in failing to take into account, in the proportionality assessment under article 8 ECHR, the Secretary of State’s policy whereby removals to Iran were suspended for the foreseeable future; and (2) that the FTT erred in taking into account the contents of a local authority’s age assessment report when reaching adverse credibility findings in respect of the appellant.
3.	As to the second issue, I should explain that on his arrival in this country the appellant claimed that his date of birth was 18 February 1997, making him 15 years old on arrival.  But in an age assessment carried out by a social worker at Kent County Council (“the council”) on 14 August 2012 in accordance with the principles in R (B) v Merton LBC [2003] EWHC 1689 (Admin), [2003] 4 All ER 280, he was assessed as having a birth date of 18 February 1995, which meant that he was aged 17 years 5 months on arrival, almost 18 at the date of the FTT’s determination and over 18 at the date of the UT’s determination.
The FTT’s determination 
4.	The appellant claimed to have lived all his life in Iran in a small village in the district of Sardasht, where he worked as a shepherd with his father.  He said that he had not attended school, that he was illiterate and that he spoke only Kurdish Sorani.  The basis of his asylum claim was that he had assisted two members of the PJAK (the Iranian branch of the Turkey-based Kurdistan Workers Party) by providing them with food and taking them to his house; that the Iranian Revolutionary Guards had then visited his village looking for him; and that he feared that if returned to Iran he would face mistreatment due to his imputed political opinion.
5.	The FTT judge found that the appellant was around 18 years of age.  He was satisfied that the council’s age assessment was correct.  Referring to the assessment report, he said:
“29. … A perusal of the same clearly shows that it was a carefully crafted report which is Merton compliant.  No submissions to the contrary was [sic] made on the appellant’s behalf by Ms Dassa [counsel for the appellant], who also did not seek to address me on matters disclosed therein which directly affect the appellant[’s] credibility generally ….”
6.	At para 30 he gave a detailed description of the contents of the report.  That he then took the contents into account, together with other factors, in reaching his adverse findings on credibility is illustrated by the following passages from the determination:
“39.  I also find that the appellant did not tell the truth when he said that he was uneducated.  This is clearly endorsed by the fact that he was observed by social workers and he had given every appearance of somebody who had received an education, he had some clear understanding of English before he came to the centre, and although he claimed to have learnt some when in Greece, this cannot explain how he was able to make himself understood at the very early stages by staff members at the centre.  Nor does it explain how he was able to type, was able to write, and was able to do mathematic calculations.  I also bear in mind that the appellant has claimed that he was a shepherd in his home village.  He was asked by myself how long was the gestation period in sheep.  I had made quite sure that he understood the question by carefully having it explained to him by the interpreter.  The appellant, who claims that he had been a shepherd since the age of 6 and claims that he is 15 and therefore been a shepherd for nine years, said that the gestation period was 25 to 30 days.  I find that however illiterate the appellant might be, as a shepherd of long standing he would at least know the answer to that question and would have been able to give the correct answer.  I indicated to his Counsel that I have [bred] sheep myself and knew the gestation period.  The gestation period in sheep is usually counted as five months less five days or approximately 146 days and certainly not 25 to 30 days.  I find therefore that the appellant as someone who has claimed that he had been a shepherd for nine years could not possibly have given the answer he gave if he had genuinely been a shepherd.  This leads me to find that the appellant was not and has never been a shepherd.
40.  Having considered the whole of the evidence in this case in the round, including the answers and behaviour of the appellant when assessed by the social workers, I find that the appellant was never a shepherd and was simply making up that account.  The core claim of the appellant was that as a young shepherd caring for his father’s sheep he came across men from PJAK.  I find that the appellant clearly was never a shepherd and as a result also find that the appellant has never come across any men from PJAK.  In addition, I find that his claim that two unarmed alleged terrorists would admit to his father, a complete stranger that they are fleeing from the Iranian security services and that they are members of PJAK carrying important documents, beggars belief ….  In addition, I also find that the appellant’s account that his father had made arrangements for the departure of only the appellant in the circumstances … again beggars belief …. ”
7.	For those and other reasons he rejected the core features of the appellant’s account.  He summarised the position as follows:
“42.  Therefore, looking at the evidence in the round, I accept that the appellant is from the Kordestan area of Iran.  I do not find that the appellant was telling the truth when he says he was a shepherd and that he was illiterate.  I do not accept that the appellant was telling the truth when he said that he fled Iran because he was seen in the company of two men from PJAK.  I find that the appellant has made up his account in order to make a false claim for asylum and I find that there is no truth at all in his claim to be in need of international protection ….”
8.	That led to the dismissal of the claims for asylum and humanitarian protection and the claim under articles 2 and 3 ECHR.
9.	It is also necessary to consider how the judge dealt with the claim under article 8 ECHR.  He had noted at paragraph 27 that “Ms Dassa specifically said that she was not relying on Article 8”.  In his conclusions on the issue, he effectively endorsed that concession:
“48.  The appellant had initially raised a claim under Article 8.  At the hearing it appears quite clearly that Ms Dassa has taken a pragmatic view of this case.  The appellant arrived in the United Kingdom on 26 July 2012.  This is barely six months.  The appellant has clearly no family life in the United Kingdom and set down no roots in the United Kingdom.  Applying the step-by-step approach adumbrated in the case of Razgar I find that the appellant’s claim must fail at the second question.
49.  The appellant’s claim cannot possibly succeed under the Immigration Rules Article 8 [sic] either.  He has only been in the United Kingdom for under six months.”
The UT’s determination
10.	There are only two points in the UT’s determination to which I need refer.  One concerns the argument that, although the conclusion of the council’s age assessment was accepted, the FTT should not have relied on the observations in the report.  The UT judge dismissed the argument in these terms:
“14. … With respect to Mr Halim it is a nonsense in my view to state that the only part of a Merton compliant age assessment report that can have any evidential value is its conclusion.  Its conclusion is based on the report itself; the enquiries and observations of the experts who are undertaking the task.  Where they record things that have been said by the Appellant, if the Appellant says they are inaccurate it is for him to say so.  In this case he did not.  What is clear is that he said things to those experts which he later resiled from.  In my view an age assessment report which is Merton compliant, as in this case, has the same weight as an expert’s report and the Judge was entitled to take its contents into account along with all the other evidence in the case.”
11.	The other point concerns the argument before the UT that, in view of the Secretary of State’s policy not to enforce escorted returns to Iran, the FTT ought to have found that “the impossibility of removing the Appellant to Iran meant that he would remain in the UK indefinitely and it cannot be in the best interests of a child to remain [in] the UK in a permanent state of limbo” (para 5 of the determination).  The argument is similar to the first ground of appeal to this court, though it was raised in the context of section 55 of the Borders, Citizenship and Immigration Act 2009, not by reference to article 8 ECHR.  The UT dismissed it in these terms:
“ 30.  So far as Mr Halim’s final point about the Secretary of State’s policy to suspend enforced returns, it has long been established that the Tribunal is not concerned with whether or not there is a policy of actual return; rather it has to consider the appeal on the basis that an Appellant will be returned.  That is the same principle that requires a Judge to assess risk on return as at the date of hearing for a minor who has claimed asylum even though he has discretionary leave and so will not actually be returned until he is an adult.  It is also the same principle that required Zimbabwean cases to be determined on the basis of risk on return at the date of hearing even though there were no returns to Zimbabwe.  That is what the Judge has done in this case and that is correct in law.”
The second ground of appeal:  reliance on the council’s age assessment report
12.	It is convenient to deal with this issue first because it is a simple re-run of the argument rejected by the UT in the passage quoted at [10] above.  Mr Halim accepted that section 85(4) of the Nationality, Immigration and Asylum Act 2002 confers a power on the FTT to consider a wide range of evidence (on an appeal of this kind, it “may consider evidence about any matter which it thinks relevant to the substance of the decision”), but he submitted that the FTT nevertheless erred in law in placing reliance on the contents of the age assessment report in reaching adverse credibility findings.  Although the assessment complied with the requirements in the Merton case, it was not an exercise to determine the credibility of the appellant’s asylum claim and it was not subject to the safeguards of an asylum interview.  There was no contemporaneous record of the interview.  It was not conducted by a specially trained immigration officer.  The interviewer was not bound to record the appellant’s answers with the same anxiety as an immigration officer conducting an asylum interview, or to give an opportunity for answers to be corrected or amplified.  The appellant had not been advised by the interviewer that his answers would form part of the assessment of his asylum claim.  As to the special training of immigration officers carrying out asylum interviews, and the procedural requirements for such interviews, Mr Halim referred to R (Dirshe) v Secretary of State for the Home Department [2005] EWCA Civ 421, [2005] 1 WLR 2685, at [4].  He also referred to the general comment in R (M) v Islington Borough Council [2004] EWCA Civ 235, [2005] 1 WLR 884, at [20], that the distinction between immigration policy, which is the concern of the Secretary of State, and welfare provision, which is in the main the concern of local authorities, reflects not only the constitutional roles of the two parties but also the relative skills that they have at their disposal.
13.	Mr Halim’s objection to the FTT’s reliance on the contents of the age assessment report might have had some substance to it if there had been any suggestion that the matters set out in the report were not an accurate account of what was said and observed in the course of the assessment.  There was, however, no such suggestion.  As Mr Blundell pointed out in the course of argument, the report must have been produced to the FTT by the appellant himself, since there was no appearance on behalf of the Secretary of State before the FTT.  The appellant was therefore well aware of the report and was able to raise, through his counsel, any concerns he might have had about it.   It is clear from paragraph 29 of the FTT’s determination, quoted at [5] above, that his counsel raised no such concerns and did not seek to argue that its contents could not safely be relied on in relation to the issue of credibility.  In those circumstances I can see no sensible objection to the way the FTT relied on it.  If the UT judge’s observation that an age assessment “has the same weight as an expert’s report” (see [10] above) was intended as a general statement of principle, I would not agree with it; but the observation was unnecessary for the purposes of the case and nothing therefore turns on the point.  I agree with the UT judge that the FTT was entitled to take the contents of the report into account, along with all the other evidence in the case, in relation to the issue of credibility.  The FTT’s “clear and devastating adverse credibility findings”, as they were described at paragraph 29 of the UT’s determination, had a rock-solid evidential basis.   
The first ground of appeal:  relevance of the policy on removal to Iran
14.	It is helpful to see how the issue raised by the first ground of appeal is formulated in Mr Halim’s skeleton argument:
“Whether a Tribunal of the Immigration and Asylum Chamber is compelled to enter into the Article 8 ECHR proportionality assessment, the fact of a policy suspending removals to the country of proposed return for the foreseeable future.  Further, does such a factor particularly obtain in the case of a ‘young person’ who has recently reached the age of maturity and whose growth or personal development is impeded as a consequence of remaining without leave and without entitlement to work or access to services and other benefits?”
15.	In developing his case, Mr Halim submitted that the appellant could not be removed from the United Kingdom for the foreseeable future, because of the Secretary of State’s policy whereby removals to Iran were suspended indefinitely.  If the appellant were not granted discretionary leave to remain here, he would be left in a state of limbo, with his future entirely dependent on the vicissitudes of diplomatic relations between the United Kingdom and Iran.  He would lose access to education, would cease to be a “former relevant child” to whom the local authority owed duties under section 23C of the Children Act 1989, would not be entitled to work and would have access to the bare minimum of support under the regime applicable to failed asylum seekers.  His development as a young adult would be impeded.  Mr Halim submitted that the FTT erred in law in failing to have regard to these considerations in its assessment under article 8.
16.	I would reject those submissions.  My reasons for doing so, which to a large extent adopt those advanced by Mr Blundell in his submissions on behalf of the Secretary of State, are as follows.
17.	First, this point was not raised before the FTT in any shape or form and I cannot see how the tribunal can be said to have erred in law by failing to have regard to it.  It was not an “obvious” point of the kind referred to in R v Secretary of State for the Home Department, ex p. Robinson [1998] QB 929, 945G-946D.  There was nothing in the case-law to alert the tribunal to it, let alone to support it.  No evidential foundation had been laid down for it.  The material before the tribunal did not even include the policy (examined below) on which the point is based.  Mr Halim sought to rely in his favour on the fact that neither the Secretary of State nor the appellant’s representatives drew the attention of the tribunal to the existence of the policy:  he said that this resulted in a decision with a very substantial lacuna which must be capable of being remedied on appeal.  But that begs the question whether the tribunal fell into legal error by failing in the circumstances to have regard to the point.  What makes the appellant’s position weaker still is that the point was not even raised on appeal to the UT in the way in which it is now advanced.  As appears from [11] above, the argument in the UT concerning the state of limbo arising out of the policy suspending enforced removals to Iran was not raised by reference to article 8.  
18.	Secondly, the issue as formulated in Mr Halim’s skeleton argument is expressed in terms of a failure to have regard to the point when making a proportionality assessment under article 8.  The FTT’s findings in relation to article 8 meant, however, that the tribunal did not get as far as a proportionality assessment and did not need to do so.  As noted at [9] above, it found that the appellant’s claim under article 8 must fail at the second of the five questions posed in R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27, [2004] 2 AC 368.  Those questions, as set out in the speech of Lord Bingham of Cornhill at [17], are: “(1) Will the proposed removal be an interference by a public authority with the exercise of the applicant’s right to respect for his private life or (as the case may be) family life? (2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8? (3) If so, is such interference in accordance with the law? (4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others? (5) If so, is such interference proportionate to the legitimate public end sought to be achieved?”  Given its finding that the appellant had no family life in the United Kingdom and given the limited period the appellant had had to establish a private life in the United Kingdom, the tribunal might well have found that he failed at the first question; but in any event it was plainly correct to find, in answer to the second question, that any interference with his private or family life would not have consequences of such gravity as potentially to engage the operation of article 8.  Accordingly, proportionality did not arise for consideration and the tribunal cannot have erred in law by failing to have regard to the consideration now contended for in the proportionality assessment.
19.	Mr Halim appeared to accept that at the time of the FTT’s determination the appellant had not established a sufficient family life or private life in the United Kingdom to engage article 8 and that the FTT’s findings on that were correct as far as they went.  He argued, however, that the state of limbo in which the appellant would otherwise be left was a relevant consideration in determining whether the appellant was entitled to leave to remain pursuant to article 8.  This looks to me like an unduly ambitious attempt to establish a positive obligation under article 8 to promote the appellant’s private life in the United Kingdom.  In any event, however, none of the authorities cited by Mr Halim supports the view that article 8 has the effect for which he contended.  There might come a time when a continuing state of limbo would give rise to issues under article 8, but that is a matter for the future and is not a basis upon which the FTT could sensibly have decided in the appellant’s favour in this case.
20.	The most directly relevant authority is that of Abdullah v Secretary of State for the Home Department [2013] EWCA Civ 42.  The appellant in that case had been in the United Kingdom since 2005.  It was held that he had been born in Saudi Arabia but was of Palestinian origin and, as such, could not be returned to Saudi Arabia.  It was argued that article 8 was engaged and required him to be granted leave to remain, at least pending any further attempts to obtain Saudi agreement to his return there, since he would otherwise be in a state of limbo.  Sir Stanley Burnton, with whom the other members of the court agreed, rejected the argument:
“19.  I reject the submission that because the Secretary of State was at the date of the decision of the Upper Tribunal unable to enforce the return of the Appellant to Saudi Arabia, article 8 required her to grant him leave to remain.  Article 8 does not confer a right to reside in the country of one’s choice.  The Appellant chooses to reside in this country, but was not compelled to come here by any threat of persecution.  Mr Jacobs accepted that if the Appellant could be returned, he could have no article 8 claim to remain here.  That is doubtless because there was no evidence before the Upper Tribunal that he had established any personal or family life here.”
Sir Stanley went on to refer to the observation of Lady Hale in R (Khadir) v Secretary of State for the Home Department [2005] UKHL 39, [2006] 1 AC 207, at [4], that “There may come a time when the prospects of the person ever being able safely to return, whether voluntarily or compulsorily, are so remote that it would be irrational to deny him the status which would enable him to make a proper contribution to the community here …”.  But he held that as at the date of the tribunal’s decision, article 8 did not require the grant of leave to remain while the Secretary of State was seeking to secure the appellant’s return to Saudi Arabia.
21.	Beatson LJ added some observations of his own on the issue:
“27.  Mr Jacobs argued that the appellant’s statelessness meant that, at the time of the Upper Tribunal’s decision, there was no prospect of removing him and that consequently Article 8 was engaged and entitled him to limited leave.  He maintained that Article 8 gave the appellant the right to have a private life ‘somewhere’, which, because, as at the date of the decision there was no prospect of removing him to Saudi Arabia, had to be this country.  He argued that leaving the appellant without status and consequently with limited access to healthcare, no right to work and no right to social security benefits deprived him of the ability to have a private life and left him in a sort of ‘limbo’.
28.  There may at some stage come a time when the ‘limbo’ argument becomes a live question, but I consider it simply unarguable that it had done so at the time of the Tribunal’s decision in this case.  Given the limited information provided by the Appellant and the inconsistencies in the accounts he has given, the Secretary of State was entitled to further time to make inquiries.
29.  My second observation concerns the length of time for such inquiries before the ‘limbo’ argument could conceivably come into play.  I consider that, in this context, some assistance can be gained from the decisions concerning the legality of the detention of persons the Secretary of State seeks to deport while efforts are made to establish their nationality or to obtain the requisite documentation of their nationality.  One of the factors which has been held to affect the period of detention which is lawful is whether the detained person has co-operated with attempts to obtain documentation ….  Similarly, the time after which the ‘limbo’ argument can come into play may depend on the attitude of the individual concerned to efforts to establish his or her nationality or to obtain documentation.”
22.	A limbo argument, though not put in terms of article 8, was also roundly rejected in SH (Iran) v Secretary of State for the Home Department [2014] EWCA Civ 1469.  Davis LJ, with whom the other members of the court agreed, said this:
“38.  Fourth, there is no room for argument that these applicants and this appellant are to be treated as entitled to a grant of leave to remain simply because they otherwise (so it is said) will be left in a state of indefinite limbo.  True it may be that there have been times when (for example) it has not proved possible for undocumented Iranians to be removed to Iran.  But it does not follow that will always remain the case; and, as found as a fact by Simler J, there at no stage has been in existence a policy that those whose removal from the United Kingdom cannot be enforced should for that reason alone be granted leave ….”
23.	That brings me conveniently to the actual terms and effect of the Secretary of State’s policy on removals for Iran. Consideration of those matters provides no basis for distinguishing the reasoning in Abdullah and SH (Iran). On the contrary, it adds to my reasons for rejecting the appellant’s case.  
24.	At the date of the FTT’s determination, the UK Border Agency’s relevant Interim Operational Instruction, dated 10 August 2012, was headed “Iran:  Suspension of enforced escorted returns” (original emphasis).  The “Background” section explained that recent Foreign and Commonwealth Office travel advice for British citizens was against travel to Iran and that this advice “affects our escorts who are British citizens”.  The document continued:
“Voluntary and enforced unescorted returns
This suspension does not apply to Iranian nationals who are returning voluntarily or those cases where removal is enforced without escorts.
Documentation required for returns to Iran
We continue to be able to remove to Iran where the subject holds a valid document, either a valid Iranian passport or previously issued emergency travel document (ETD).
…
Documents to support voluntary returns
The Omani Embassy in London should now be the first point of contact for enquiries regarding documentation for Iranian cases who wish to return.  It is likely that only well documented cases who want to return could benefit from assistance from the Omani Embassy.  This development is untested but may provide a possible avenue for assistance within the UK.”
25.	We were told by Mr Blundell that the version of the Instruction in force from 28 April 2014 records that although the Iranian Embassy was closed in November 2011, officials operating from the Iranian Consulate in London have been providing consular services since February 2014 and will consider applications for emergency travel documents from individuals who wish to return to Iran voluntarily, but not for enforced, non-voluntary returns.  It further confirms that Iranian nationals can be removed if they hold a valid passport or emergency travel document and that unescorted removals can take place with valid travel documents.  Prior to February 2014, Iranians could, as well as using the services of the Omani Embassy, contact other local Iranian diplomatic missions, officials in Tehran or friends and family in Iran to assist in obtaining travel documentation.  We were also told that the position set out in the Instruction remains the policy, though the Instruction itself has now expired.
26.	It follows that at no stage were returns to Iran impossible; the one thing that was impossible was an enforced escorted return.  Mr Blundell made the point that the appellant had been found to have no claim to international protection and that the Secretary of State was entitled to expect him to return voluntarily rather than having to expend public resources on an enforced removal.  Mr Halim submitted that the appellant could not return voluntarily because he has no passport or other travel documentation.  That, however, is not a satisfactory answer, since there were channels through which it was open to the appellant to seek to obtain an emergency travel document for return to Iran. They included the possibility of assistance from his family in Iran, since the FTT found as a fact (at paragraph 50 of its determination) that the appellant had family remaining in the family home in Iran and that he was able to contact them if he chose to do so.  In the absence of evidence of genuine and unsuccessful attempts to obtain such documentation, the premise to the limbo argument lacks any solid foundation.  It must also be borne in mind that the policy itself was subject to the possibility of change at any time in the light of changes in international relations with Iran.
27.	It was common ground before us, on the basis of cases such as Ravichandran v Secretary of State for the Home Department [1996] Imm AR 97 and MS (Ivory Coast) v Secretary of State for the Home Department [2007] EWCA Civ 133, [2007] Imm AR 538, that asylum and human rights appeals, including appeals under article 8, are to be determined on the basis of the facts as they are at the time when the appeal is heard and that it is not appropriate for the tribunal to speculate about the future.  What I have said about the Secretary of State’s policy on removals to Iran means that, even if the argument now advanced by Mr Halim had been advanced before the FTT, there would have been no proper basis for a finding that the refusal of leave would put the appellant into a state of limbo.  Consideration of whether he would or would not be in a state of limbo would have drawn the FTT into impermissible speculation about the future.  That is a further reason for rejecting the argument.  This is much the same kind of point as the UT judge had in mind when dismissing the limbo argument in the form in which it was presented on the appeal to the UT (see [11] above).
28.	For all those reasons, I am satisfied that the appellant’s case on this ground of appeal, like that on the ground already considered, is without foundation.
Conclusion
29.	I would dismiss the appeal.
Lady Justice Sharp : 
30.	I agree.