England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE No QBCOF 97/0553/D

Royal Courts of Justice

Strand

London WC2

Wednesday, 12th November 1997

B e f o r e:

LORD JUSTICE SIMON BROWN

LORD JUSTICE WARD

LORD JUSTICE JUDGE

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R E G I N A

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SECRETARY OF STATE FOR THE HOME DEPARTMENT

Ex parte JAFAR DANAEI

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(Handed down judgment prepared by

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 831 3183

Official Shorthand Writers to the Court)

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MR N PLEMING QC and MR S KOVATS (Instructed by Treasury Solicitor) appeared on behalf of the Appellant

MR N BLAKE QC and MISS S HARRISON (Instructed by Winstanley Burgess of London) appeared on behalf of the Respondent

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J U D G M E N T

(As Approved by the Court )

(Crown Copyright)

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LORD JUSTICE SIMON BROWN: The Secretary of State has power to grant exceptional leave to enter or remain outside the Immigration Rules. Whether that power arises under s.3(1)(b) of the Immigration Act 1971 (the Act), as the respondent contends, or as an exercise of the prerogative preserved by s.33(5), as the appellants submit, matters not: it is generally accepted to involve a wide discretion - see, for example, Asiedu v Home Secretary [1988] IAR 186. The critical question raised by this appeal is the extent to which, in exercising that power, the Secretary of State is in practice bound to accept findings of fact made in the immigrant's favour by a special adjudicator on a related although failed asylum appeal. The appeal is brought by the Secretary of State against the Order of Collins J on 20th March 1997 quashing a refusal of exceptional leave to enter and remitting the matter for the Secretary of State's reconsideration.

With that briefest of introductions let me at once turn to summarise the relevant facts. I shall not set them out as fully as the Judge below: fortunately his decision is now reported at 1997 IAR 366 and thus is available to any interested person.

The respondent is a 29 year old Iranian. He came to this country on 7th August 1993 seeking political asylum. In a sentence he claimed to have been discovered in an adulterous relationship and to be at risk at flogging or worse by the Iranian authorities. On 8th February 1994, after the respondent had twice been interviewed, the Home Secretary refused his application and on 7th March 1994 refused him leave to enter. He regarded the whole story of adultery as a fabrication invented simply to substantiate a bogus asylum application. The respondent appealed to the special adjudicator under s.8 of the Asylum and Immigration Appeals Act 1993. That appeal was dismissed on 16th January 1995, precisely why it is unnecessary to relate. Importantly for present purposes, however, the adjudicator's written determination included these passages:

"... I note that when interviewed, the appellant immediately said that the basis of his claim was that he had met this woman and that a relationship had developed. He also said that in his house were drinks and pornographic films. He said that he had been in trouble with the authorities on previous occasions, because he had been caught with alcohol, a few times. He said he had been drinking and flirting with ladies. On one occasion he said he received 120 lashes because he had been drinking alcohol in the month of Ramadan. In view of the way in which he conducted his life, therefore, I am prepared to accept that this woman did in fact spend two nights a week with him and that they regularly had sexual intercourse.

With regard to the appellant's statement that on occasions the 8 year old daughter of the woman also came to his house, I find it difficult to explain why he should invent such a story if it were not true. He did tell me that when the daughter was in his house, he and the woman did not indulge in sexual intercourse. I am prepared to accept that when the husband of the woman found out what had been going on, he was enraged,and went to the appellant's house together with other people, and that the appellant's life was then in danger from the enraged husband. I am prepared to accept that he then tried to escape by jumping onto a roof and that might very well have injured his heel. There are various degrees of fractures, and it was possible that in his case, the fracture was not severe, and that he was in fact able to make good his escape.

I accept that the woman in question might have been afraid of jumping from a three storey building onto a one storey building, and that she did not make good her escape."

And then a little later:

"Therefore I accept that the appellant left Iran because he feared that his life was in danger as a consequence of him having carried on an affair with a married woman."

And finally:

"... The appellant said that if he went back to Iran his life would be in danger. He said that this was mainly because the authorities were after him because he had a relationship with a married woman. He went on to say that it was also because the authorities had found leaflets in his house and they therefore suspected him of political involvement. I do not accept that the authorities in Iran suspected him of political involvement. I conclude that the appellant fled Iran simply because he was being pursued by an angry husband whose wife had had an affair with the appellant."

In short, the adjudicator accepted the respondent's account of having committed adultery with a married woman and of fleeing Iran because his life was in danger from an outraged husband, but rejected a good deal else of what he had said and refused to accept that any harm he faced would amount to persecution for a Convention reason.

The respondent sought to appeal against that conclusion but was refused leave by the Immigration Appeal Tribunal on 31st January 1995, and that part of his case then gradually fell away. It is not now asserted that he is entitled to refugee status under the 1951 Convention.

The respondent's solicitors thereafter concentrated instead on seeking to persuade the Secretary of State to grant him an exceptional leave to enter on the ground that to remove him would involve the United Kingdom in contraventions of Articles 2 and/ or 3 of the European Convention on Human Rights: it was said that his life would be in danger from the husband and that the Iranian authorities would not protect him against that risk, and furthermore that he would in any event be at risk of flogging as an official punishment for adultery (or indeed for mere fornication).

Whether or not, were the Secretary of State to accept the adjudicator's finding of fact, he would accept too the respondent's arguments for the grant of exceptional leave to enter we simply do not know. He might decide that the risk to the respondent were he to be returned to Iran was not in any event such as to involve the United Kingdom in any violation of the Convention, or he might decide to remove the respondent irrespective of whether the Convention would thereby be breached. Mr Blake QC suggests that neither of these conclusions would be likely given the Secretary of State's public policy statement that:

"We use exceptional leave to remain to respond to cases that are outside the (Refugee) Convention but within the terms of our other obligations, including the European Convention on Human Rights",

and decisions of the Strasbourg Court such as Soering v United Kingdom [1989] 11 EHRR 439 and Chahal v United Kingdom [1997] 23 EHRR 413. None of these questions, however, has yet been addressed in the present case. They have not needed to be: the Secretary of State remains steadfastly of the view that this whole story of adultery is a complete fabrication so that the respondent could return to Iran in perfect safety. Hardly surprisingly in these circumstances he has refused to grant exceptional leave to enter and it is this decision, communicated by letter dated 14th March 1996, which is under challenge in these proceedings. The decision letter includes this:

"... as was made clear by our original refusal letter of 8 February 1994 (paragraph 3) we considered and continue to consider the episode of the relationship and the raid on the house is implausible and consider the relationship had been fabricated to substantiate the asylum application. In sum we do not believe the claim. In this connection the Adjudicator at page 5 of the determination does not accept Mr Danaei as a credible witness.

It follows from this that we do not accept that Mr Danaei would fall into the ´social group' you suggest as an adulterer, as we do not accept this part of his claim. Arguments surrounding possible punishments similarly fall down if the events, for which they would be delivered, are in fact a fabrication."

It is the respondent's central argument that such an approach was not open to the Secretary of State: he was not entitled simply to disagree with the adjudicator's finding of fact on the basic question as to whether the respondent had been caught out in an adulterous relationship. That argument succeeded before the Judge below. The Secretary of State now appeals.

Before turning to the Judge's reasons for his decision, it is convenient to set out, as he did, parts of the appellant's affidavit evidence put in to provide a fuller explanation of the Secretary of State's reasoning:

"3. The Respondent [the Secretary of State was, of course, the Respondent below] maintains that the Applicant's account of an adulterous affair, his pursuit by the woman's husband and the Iranian authorities and the finding of alcohol and pornographic films in his apartment is a fabrication. The Respondent relies on the following matters.

4. The Applicant said that the woman spent about two nights a week at his house for about two months and that most of the time she brought her eight year old daughter with her. As stated in the refusal letter of 8 March 1994 (p.55), the Respondent considers it extremely improbable that this would have been the position as the child would have been able to tell her father about the Applicant. The Special Adjudicator noted the Applicant's evidence that, when the child was in the Applicant's house, he and the woman did not indulge in sexual intercourse. But, with respect,this does not meet the point that the child would have been able to tell her father that her mother was regularly staying overnight at the house of a strange man. The Secretary of State does not consider it credible that the woman would have taken such a risk. I am informed by the Foreign and Commonwealth Office ("FCO") and believe, that in Iran, regardless of any intent to commit adultery, the very fact that a woman may be identified as being in the company of a man to whom she was not related, without a chaperone, would be likely to cause great stigma and adverse attention.

5. The Respondent notes that the Special Adjudicator found it plausible that the woman was too frightened to jump the height of two storeys from the Applicant's roof and that the severity of the Applicant's ankle injury might not have precluded him from escaping from his pursuers on foot or motorcycle. The Respondent accepts that these two matters are neutral in relation to the credibility of the Applicant's story." [Previously, I should make clear, the Secretary of State had expressed the view (a) that if the Respondent had genuinely broken his heel he would have been caught by his pursuers, and (b) and that it was implausible to suppose that the woman would not have attempted to escape with him.]

Paragraph 6 of the affidavit explained why, on the basis of other enquiries he had made following the adjudicator's determination, he thought it unlikely that the woman had been stoned and continued:

"The Respondent acknowledges that the Applicant did not claim to have first hand knowledge that the woman was stoned, merely that this was what he was told. But the Respondent considers that the absence of any report of the public stoning of the woman identified by the Applicant casts further doubt on his story.

7. The Special Adjudicator found other aspects of the Applicant's story not to be credible, namely his explanations for his delay in claiming asylum and the account of the political activities of the woman. The Respondent agrees with these findings." [There were, I may add, other parts too of the Respondent's evidence which the adjudicator had rejected, not least that he was a Christian convert and should be granted asylum on that additional ground.]

8. The Respondent notes that the Applicant has consistently given the adultery story to the authorities in this country but attaches little weight to this. It is easy to concoct such a story."

I need read no more but instead turn directly to the determinative passages in the judgment below:

"It is apparent, therefore, that the Secretary of State has approached this case on the basis that he does not accept the adjudicator's findings of fact. He gives reasons for rejecting them, but the reasons are essentially the same as the reasons given in his original letter of March 1994."

"As it seems to me ... in effect, the Secretary of State has no additional material to rely upon and is simply repeating his objections to the account given by the applicant. His reasons were not sufficient to persuade the adjudicator. The adjudicator, of course, did hear and see the applicant give evidence. One must not make too much of that." [p.375]

"In this case, the findings relate to the credibility of a particular individual in relation to what has happened to him ... In my view, the Secretary of State is not entitled to reject those findings unless he has additional material or can show that some matter was not put before the adjudicator or that the adjudicator was deceived into reaching the decision that he did reach. None of that material exists in this case.

Mr Kovats submits that as a matter of law all that I can do is to consider whether the reasons given by the Secretary of State are irrational. In my judgment, they are where he has not given the proper weight to the decision of the adjudicator. In the context of this case, having regard to the absence of any extra material, the weight that he ought to have given to those findings was predominant because he should have accepted the findings that were made." [p.378]

Essentially, therefore, the judge found that it was Wednesbury unreasonable for the Secretary of State to have maintained his own original view of the facts in the face of the adjudicator's contrary views formed upon the respondent's related unsuccessful asylum appeal given that there was no material additional evidence on which the Secretary of State could rely.

Before turning to consider the rival submissions as to the correctness or otherwise of such an approach it is convenient first to notice certain basic features of the relevant legislation:

1. By s.19(2) of the Act "the adjudicator may review any determination of a question of fact on which the decision or action [here of the Secretary of State] was based"; it is not suggested, however, that any principle of res judicata or issue estoppel arises here to make the adjudicator's findings binding as such on the Secretary of State. Nor is this a case like R v Home Secretary ex parte Momin Ali [1984] 1 WLR 660, which held that the Secretary of State, to justify removing a successful appellant for entry clearance as an illegal entrant, must satisfy the court that a fraud had been practised on the adjudicator.

2. Given that the respondent's appeal was dismissed, it is common ground that the Secretary of State could not appeal against the adjudicator's findings of fact. That said, the IAT would be unlikely in any event to grant leave to a party to appeal against an adjudicator's decision on the facts.

3. Under ss.19(3) and 20(2) and (3) the appellate authorities can give "directions" to the Secretary of State only where the Secretary of State's decision is overturned. "Recommendations", however, can be made in any event, extra-statutorily if the Secretary of State's decision is upheld.

4. By s.21 of the Act the Secretary of State can in any case "at any time refer for consideration ... any matter relating to the case which was not before the adjudicator or Tribunal", in which event "the adjudicator or Tribunal shall consider the matter which is the subject of the reference and report to the Secretary of State the opinion of the adjudicator or Tribunal thereon."

In support of the appeal, Mr Pleming QC advances these main submissions. The decision here whether to grant an exceptional leave was one for the Secretary of State and for no one else. As the judge below accepted, it was a decision which could only be challenged on Wednesbury grounds. The Secretary of State could not appeal against the adjudicator's findings and, indeed, did not need to. Provided only that he took those findings into account (as he did) and explained why he disagreed with them (as by affidavit he did), he was entitled to come to a different conclusion providing only and always that it was a rational one. No one would suggest that the decision here was irrational on any basis other than that it disagreed with the adjudicator's finding. To suggest that that was ipso facto irrational, however, begs the very question here at issue. There was room here for two views of the facts, neither of which could be stigmatised as irrational. The Secretary of State was in just as good a position to reach a factual conclusion as the adjudicator. True, the adjudicator had heard the respondent give his evidence orally and be cross-examined. In reality, however, he came to his findings not by reference to any assessment of the respondent's credibility or reliability but rather upon his perception of the inherent probabilities of the case. Although Collins J suggests at page 375 that the adjudicator must inevitably have been influenced in his decision by the evidence given by the respondent, that seems unlikely: he had rejected the respondent as a credible witness and, indeed, had expressly disbelieved him on a number of matters. For good measure, Mr Pleming points out, the Secretary of State had through his officials seen the respondent recount his story both during his asylum interviews and on appeal.

In support of this approach Mr Pleming draws our attention to two recent authorities - R v Home Secretary ex parte Alakesan (1997) IAR 315 and R v Home Secretary ex parte Elhasoglu (1997) IAR 380. He relies in particular upon the second in which the Court of Appeal approved and applied Brooke J's decision in the first. Both concerned asylum seekers whose appeals failed, but who the special adjudicator in each case nevertheless recommended should be granted exceptional leave to remain having regard to the adjudicator's findings as to the situation existing respectively for Tamils in Colombo and for Kurds in Turkey. In each case the Secretary of State had disagreed with the adjudicator's assessment of the domestic situation in the foreign country and had refused to grant an exceptional leave. It was held that an applicant had no legitimate expectation that the Secretary of State would accept an adjudicator's recommendation, only that such a recommendation would be given very serious consideration. In Elhasoglu, refusing the applicant's renewed application for leave to move for judicial review, Henry LJ said this:

"[The applicant's counsel] sought to distinguish this case from [ Alkesan] on the grounds that there had been a change of the overall situation in Sri Lanka between the special adjudicator's decision and the Minister's recommendation, while that was not the case here. I believe that to be a distinction without a difference. Whether or not such a factual distinction existed, it would make no difference in law whatsoever. The Minister, presumably through the prerogative, is the custodian of the discretion to exercise these extra-statutory powers. The special adjudicator has not been entrusted with those powers, although whenever the special adjudicator thinks it right to express a view on their exercise, the Secretary of State takes that into account (as set out above) as he is entitled (and chooses) to do. But it remains the Minister's discretion and his discretion alone. There is no room in that situation for any application of the principles of res judicata or issue estoppel in any form whatsoever."

Collins J distinguished Alakesan on the basis that the special adjudicator's findings in relation to the situation in Colombo "may involve questions of forecasting what is going to happen in relation to a particular country" and added:

"Those are issues upon which the Secretary of State is always likely to have extra material which might not have been before a particular adjudicator, and more importantly, the situation in relation to the state of affairs in the country is something which is fluid and may change from time to time." [p.378]

Elhasoglu was not decided until the day after Collins J's decision. Mr Pleming submits that there is no sound basis for distinguishing either of these cases, and certainly not Elhasoglu. It was not suggested there that the situation in Turkey had changed materially since the adjudicator's decision, only that the Secretary of State was entitled to reach his own independent decision on that situation. So too here, submits Mr Pleming, the Secretary of State was entitled to disagree with the special adjudicator on the issue of primary fact as to whether or not the respondent had committed adultery. Mr Pleming submits, indeed, that the present case is a fortiori to Elhasoglu: if the Secretary of State is not bound to follow an adjudicator's recommendation, still less is he bound to accept his findings of fact.

I for my part acknowledge that these submissions in combination present a formidable case on appeal. Should it, however, succeed?

That the Secretary of State's decision was a separate and discrete decision to be taken by him alone cannot be doubted. It is equally clear that it can only be challenged here on Wednesbury grounds. Both sides agree that the Secretary of State was required to have regard to the adjudicator's findings of fact as a material consideration. Was he, however, in the circumstances of this case, then entitled to disagree with them? That is the critical question.

Mr Blake submits that the Secretary of State can only reach a different factual conclusion from the adjudicator if he has good reason to do so. In considering whether good reason exists, two particular matters must be borne in mind. First, that the adjudicator has what is generally regarded as the unique advantage of seeing and hearing the witnesses as they give their evidence orally in the course of an adversarial process. Second, that the adjudicator is an independent appellate authority, deciding issues of fact impartially as between the rival parties, here the Secretary of State and the respondent. The adjudicator's independent role in the scheme of the legislation is exemplified not merely by his power to review the Secretary of State's decisions on questions of fact and to allow appeals, but also by his power to make recommendations (both under s.19(3) and extra-statutorily) and, if asked, to report to the Secretary of State under s.21. True, such recommendations and reports are not binding upon the Secretary of State; but they must be recognised as coming from an independent tribunal.

These two considerations taken together seem to me of great importance in this case. I am not, I hope, influenced excessively in this view by this Court's recent decision in R v Warwickshire County Council ex parte Powergen plc (unreported, transcript dated 31st July 1997) when we rejected a highway authority's contention that, after a planning appeal in which their highway objection had been fully considered and rejected, they nevertheless remained "entitled to adhere to and act upon their original view that the public would not benefit from this development because of the highway dangers it would create." As I said there:

"I believe on the contrary that the inspector's conclusion on that issue, because of its independence and because of the process by which it is arrived at, necessarily becomes the only properly tenable view on the issue of road safety and thus is determinative of the public benefit."

I recognise at once that that was a very different case from the present, not least in that a powerful argument arose there that if the highway authority were entitled to maintain their original objection, they could effectively defeat the whole planning process. By contrast, even if the Secretary of State has carte blanche here to redecide the facts as he maintains, there would be no question of that frustrating the overall scheme of the legislation. That difference is, of course, reflected in the different result arrived at in Elhasoglu, a result to my mind entirely consistent with Powergen. But I would certainly regard Elhasoglu as distinguishable on the facts from the present case too. Although, unlike the position in Alakesan, there may well have been no material change in the situation for Kurds in Turkey between the adjudicator's recommendation and the Secretary of State's decision, that situation, as Collins J observed, would be an issue upon which the Secretary of State would always be likely to have extra material, and, indeed, as one notes from Henry LJ's judgment, the Secretary of State in his eventual written decision:

"considered internal conditions in Turkey, together with the activities of the PKK there, in some considerable detail over several pages ..."

Although Mr Blake puts the question mark over the decision in Elhasoglu which, as merely the refusal of a renewed application for leave, dicta in R v Secretary of State for the Home Department ex parte Robinson [1997] 4 All ER 210 at 222f allow him to put, I for my part do not think he needs to question it. And that perhaps is just as well since I regard Elhasoglu as correctly decided: in a case like that the Secretary of State is bound to have additional material available to him and the adjudicator will have enjoyed no special advantage from having heard oral evidence.

In the present case, however, the primary fact in question is not the general situation in a foreign country but rather whether or not the respondent was an adulterer. On an issue such as this it does not seem to me reasonable for the Secretary of State to disagree with the independent adjudicator who has heard all the evidence unless only:

1. the adjudicator's factual conclusion was itself demonstrably flawed, as irrational or for failing to have regard to material considerations or for having regard to immaterial ones - none of which is suggested here;

2. fresh material has since become available to the Secretary of State such as could have realistically have affected the adjudicator's finding - this too was a matter we considered in Powergen;

3. arguably, if the adjudicator has decided the appeal purely on the documents, or if, despite having heard oral evidence, his findings of fact owe nothing whatever to any assessment of the witnesses.

This third scenario seems unlikely and I express no concluded view as to whether in this event the Secretary of State could properly ignore the fact that the adjudicator is an independent tribunal whereas he is not. I observe only that in Chahal the ECHR recently underlined the importance of "independent scrutiny" as a requirement of an "effective remedy" in Article 3 cases:

"... given the irreversible nature of the harm that might occur if the risk of ill-treatment materialised and the importance the court attaches to Article 3, the notion of an effective remedy under Article 13 requires independent scrutiny of the claim that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3."

Often, of course, the Secretary of State will not have the benefit of the adjudicator's findings in Article 3 cases, and this court alone will then have the role of exercising "independent scrutiny" of the claim. When, however, as here, the adjudicator has made findings, then, even if he has enjoyed no particular advantage over the Secretary of State in reaching his conclusions, the ECHR may perhaps be expected to take exception to a Secretary of State's decision which merely disagrees. I should perhaps make plain at this stage that it was common ground before us that both the adjudicator and the Secretary of State approached the question on the same basis, namely as to whether there was or was not a real risk (or serious possibility) of the adultery story being true.

I understood Mr Pleming to make two basic submissions on the appeal. First, that the Secretary of State is free to come to a different factual conclusion to the adjudicator irrespective of the advantages enjoyed by the latter through having heard oral evidence on the appeal and irrespective of whether or not fresh evidence has come to light. Second (his fall-back position), that the Secretary of State was, in the circumstances of this case, entitled to disagree with the adjudicator given (a) that the adjudicator reached his conclusion solely by reference to the inherent probabilities rather than by any assessment of the witnesses, and (b) that subsequent enquiries had indeed produced material further evidence.

The first submission I have no hesitation in rejecting for the reasons already given. The second, however, I confess to having found more difficult. There can be no doubt that the adjudicator's conclusion was indeed reached principally by reference to the inherent probabilities as he perceived them to be and that he rejected more or less everything said by the respondent save insofar as he thought it inherently likely to be true. But in finding the respondent, as plainly he did, an inveterate lecher, he is likely to have had some regard to the evidence he gave and to his demeanour in giving it, and in the last analysis I find it difficult to disagree with Collins J's comment that:

"He [the adjudicator] does not, in terms, spell it out, but it is impossible to conclude other than that he was inevitably influenced by it [ the respondent's evidence]."

As for the suggested fresh evidence, this I have come to regard as hopelessly insubstantial. Two points are relied upon. First, that the respondent and the woman would have been at risk merely by staying overnight together and so are unlikely to have done so whilst the woman's daughter was in the house. As, however, Collins J observed, people do take enormous risks to commit adultery and perhaps these two people's nights together would have been impossible unless the daughter came too. The second point relied upon is that the Secretary of State's further enquiries had suggested that, there having been no published report of it, the woman was unlikely to have been stoned, an unlikelihood which made it in turn less likely that the respondent had been told (as he claimed) that she had. Perhaps not surprisingly, Collins J failed even to mention this second additional piece of evidence.

In these circumstances, I have come to regard Mr Pleming's alternative submission too as unsustainable, and in the result I would dismiss this appeal.

LORD JUSTICE WARD: I agree

LORD JUSTICE JUDGE: I agree with Simon Brown LJ’s conclusion and the reasons for it.

His judgment demonstrates the essential independence of the special adjudicator within the statutory scheme governing applications for asylum without undermining the ultimate responsibility of the Secretary of State for deciding whether to grant an asylum seeker exceptional leave to remain. The desirable objective of an independent scrutiny of decisions in this field would be negated if the Secretary of State were entitled to act merely on his own assertions and reassertions about relevant facts contrary to express findings made at an oral hearing by a special adjudicator who had seen and heard the relevant witnesses. That would approach uncomfortably close to decision making by executive or administrative diktat. If therefore the Secretary of State is to set aside or ignore a finding on a factual issue which has been considered and evaluated at an oral hearing by the special adjudicator he should explain why he has done so, and he should not do so unless the relevant factual conclusion could itself be impugned on Wednesbury principles, or has been reconsidered in the light of further evidence, or is of limited or negligible significance to the ultimate decision for which he is responsible.

Order: Appeal dismissed with costs. Leave to appeal was refused