England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
[AIT No. [AS/15095/2004]

		Royal Courts of Justice Strand London, WC2
		4 December 2006

1. LORD JUSTICE PILL: This is an appeal by AM against a decision of the Immigration Appeal Tribunal dated 18 July 2005. The tribunal dismissed an appeal by AM from a decision of an adjudicator promulgated on 7 December 2004 following a hearing which took place on 3 November 2004. AM has permission to appeal to this court on one ground: that is the question whether the tribunal should have declined to admit fresh evidence which the appellant wished to present to it. He is an applicant for permission to appeal on a substantive ground, which is that the adjudicator's decision was wrong in law.
2. Ms Plimmer, who appeals on his behalf, has suggested, and the court has agreed, that all her submissions on both grounds are presented at this stage. If permission is granted on the substantive ground she will rely on the submissions already made on the application.
3. The appellant was born in Iran on 20 June 1976. He is now 30 years old. He is a citizen of Iran. He arrived in this country on 26 April 2004 and claimed asylum upon arrival. On 15 July 2004 the Secretary of State refused the application for asylum and made removal directions, and it was from those decisions that the appeal to the adjudicator was made.
4. There was an entry interview on 27 April 2004 and what is known as a screening interview on the following day, 28 April. The full asylum interview took place on 2 June 2004. The appellant gave evidence orally before the adjudicator. He said that he travelled from Iran to the United Kingdom with the assistance of an agent who had been paid by his father. He brought €220 with him.
5. In the interview he said, we will refer to this in more detail, that via the intelligent service, that in Iran he was not a member of any political group. He had worked for 18 months for a warehouse company and was in a responsible position in charge of warehouses and of the constructional material kept there. He was arrested on 3 April 2004 because of an alleged theft from the warehouse. He was accused of stealing. He was detained for five days and then released. He said that while he was insulted and, he thought, badly treated during that time, he was not physically hurt. On his release he was met by his brother-in-law and they went to the brother-in-law's house. His mother phoned from the house where he lived with his father and mother. She was crying and distressed and said that the security forces had come to the house and searched it, and that they had said that her son was a "mortad" (that is, a religious defector) as they had searched his room and found some books and photographs there.
6. The appellant had kept two books in his room. These were Salman Rushdie's "The Satanic Verses" in English. He also had four films from Professor Mirzaie, who was opposed to Islam. He had obtained the books from one of his friends. The books were banned in Iran and the punishment for possession was execution. He did not know what was in the book because he could not understand English but his friend was due to come to the house and translate it for him. Having had that message from his mother, he did not return home but went by car to Tehran and left Iran, in the way he described, on 12 April.
7. Since arriving in the United Kingdom he had not contacted anyone in Iran. He believed that if he was returned he would be executed. It was the uproar that the book the Satanic Verses had caused that had made him interested in them. He had to flee, he said, because he feared being caught by the authorities on account of the books and videos in his possession. He had not been asked about the books while he was detained. His mother had also told him that after his room had been searched the men from the intelligence service came out shouting and arrested his father and took him away. It was the problem with the book and the video which was the only reason why he could not return to Iran.
8. I have considered the circumstances of departure in some detail because it was an important part of the adjudicator's determination that the appellant was not a credible applicant for asylum; that at the entry interview, the first of the interviews, and at the screening interview, no mention had been made of The Satanic Verses. They were only raised at the full asylum interview five weeks later and raised at a point well into the interview. It is clear that the adjudicator attached considerable importance to that failure to mention it earlier -- I refer to the summary of the appellant's evidence which the adjudicator made. The adjudicator also set out in some detail the submissions made on behalf of the applicant by the solicitor then appearing for him and made by the Secretary of State's representative.
9. The adjudicator's conclusions are brief and I set them out in full:

"52. I find that what the appellant said on entry to the Immigration Officer was the truth when he said: 'I have come here to save my life from the intelligence service of Iran. In the place I was working an incident happened and a person from Iranian intelligence wanted to blame me for the incident and kill me… I was a responsible person. A loss of supplies got stolen. This was a conspiracy from people who used to do job.'

There was no mention of The Satanic Verses either at that time or, the following day, in his screening interview.

"53. The first mention of The Satanic Verses is during the course of the appellant's asylum interview on 2nd June and even then it was not mentioned until question 40. The questions prior to that all deal with the nature of his work as a store-man and his arrest.

"54. That issue was raised as a matter of credibility in the refusal letter and nothing that the appellant has said since then has persuaded me that the incident when the Secret Service allegedly raided his house did indeed occur.

"55. I find that to be an invention designed to enhance the appellant's claim for asylum and I note, from his evidence, that this is the only matter on which he relies.

"56. Having found that the incident set out by the appellant did not occur I find that there is no reasonable risk that this appellant will be persecuted on return.

"57. It is in these circumstances that I find that this appellant does not have a well founded fear of persecution and that the United Kingdom would not be in breach of its obligations under either the Refugee Convention or the Human Rights Convention were the appellant to be returned to Iran."

10. Ms Plimmer's submissions on behalf of the applicant are, first, that the adverse finding of credibility was based simply on the failure to mention The Satanic Verses earlier and that was an inadequate basis for the finding made. Secondly, the finding was insufficiently reasoned. The adjudicator has not set out why this matter was crucial in the determination; while he referred in the course of evidence and submissions to other matters which would be expected to be relevant to credibility, reliance was placed on the finding in relation to The Satanic Verses alone.
11. Ms Plimmer refers to the decision of this court in Queen Refugee Legal Centre v Secretary of State for the Home Department [2005] 1 WLR 2219 and to the statement of Sedley LJ at paragraph 15 when considering the test to be applied as to the fairness of interviews of applicants for asylum on arrival:

"Secondly, and perhaps more important, consequences of the risk which most concerns the RLC may very well not be susceptible of appeal if the record of interview which goes before the adjudicator has been obtained in unacceptably stressful or distressing circumstances so that it contains omissions and inconsistencies compared with what the applicant later tells the adjudicator the damage may not be curable."

12. Ms Plimmer submits that the notebook interview was conducted, in several respects, in breach of the interviewing protocol approved by the Secretary of State in October 2002 and headed "Protocol Governing the Conduct of Substantive Interviews, the Role of Interviewing Officers, Representatives and their Interpreters". It is submitted that the notebook interview, the entry interview, was in breach of that protocol: first, in that there is no record of those who were participating in the interview; secondly, that there is no record of an assurance having been given about the confidentiality of answers; thirdly, there was a failure to warn the appellant in certain respects to which we will refer; and fourthly, there was no indication on the record that the interview was by an immigration officer. The interview was recorded manually, entirely legibly, and the expression "notebook interview" has been used because it is clear that a record was kept in a document which might be compared to a police officer's notebook.
13. In relation to the entry interview, or notebook interview as it has been called, Ms Plimmer relies on the absence of any record that warning was given about the importance and relevance of the interview and that the appellant was not told that answers would be kept confidential. Great reliance should not have been placed on it. Ms  Plimmer refers to paragraph 198 of the UNHCR handbook:

"A person who, because of his experiences, was in fear of the authorities in his own country may still feel apprehensive vis a vis any authority. He may therefore be afraid to speak freely and give a full and accurate account of his case."

14. There is little information before the court as to the circumstances which led to the interview. It is clear that it took place shortly after arrival and Mr Dhillon is minded to accept that this was a case where, on arrival, the appellant revealed himself rather than being discovered. There is no doubt that he claimed asylum very promptly. It is entirely understandable that the authorities wish to interview promptly arrivals of this kind. They are at one end of what has been described in other cases as "an evil trade" and one which the authorities wish to eliminate if possible, but certainly to monitor as closely as they can. That, of course, does not bear upon the merits of an asylum claim which may be properly made, even if the arrival is in the most suspicious circumstances.
15. The interview was conducted with the aid of an interpreter. The first point I would make is that there is no evidence before the court that the formalities were not complied with. This was a submission which, if to be made at all, should have been made before the adjudicator, the fact-finding tribunal. If it was to be suggested that weight should not be given to its contents or, even more strongly, that the evidence should not be admitted, that should have been ventilated before the fact-finding tribunal.
16. Mr Dhillon wishes to keep open the question of whether the protocol applies at all to entry interviews of this kind. We need not resolve that issue at the present hearing.
17. The second point is that the absence of the notifications, which were given when subsequent interviews were conducted, does not appear to me to have affected the course of the interview. The appellant did point out that he was in "the last lorry for four to five days." He also stated that he was not happy with the way the interview was conducted because he was "very tired", but he did give clear answers to questions which were put to him. He agreed that he understood the interpreter. He agreed that he had understood the questions and he said that there was nothing further he wished to add following the questions put to him. The answers that he did give must be considered in that context and, this is the third point, he gave a detailed account of why he had left Iran. This was not a case where he was silent and it was only later that the facts on which he sought to rely for an asylum claim emerged. This is a case where he gave a detailed account in answer to several questions as to why he was here. The answer to the question, "any reason why I can't remove you?", was:

"I have come here to save my life from the Intelligence Service of Iran. In the place I was working an incident happened and a person from Iranian Intelligence wanted to blame me for the incident and kill me."

18. He was asked further about it and he said he was "arrested for the incident mentioned one-and-a-half years ago." He further volunteered in answer to the question whether he had been arrested or convicted:

"I was a responsible person, a lot of supplies got stolen, this was a conspiracy from people who used to do jobs."

Thus a comprehensive account was given of the circumstances as to why he should not be removed and as to why he had made this arduous and perilous journey overland from Iran. It was an entirely different explanation from the one which he gave five weeks later when the full asylum interview was conducted.

19. In my judgment there was no error of law in the adjudicator admitting this evidence. There was no application to exclude it and it was evidence on which the adjudicator was entitled to place weight; the weight to be attached to it was, within limits of rationality, for him to consider. He was in my judgment entitled to attach considerable weight to the fact that, a detailed account having been given on arrival, a detailed account to quite a contrary effect was given five weeks later.
20. The adjudicator did also rely on the fact that it was only at question 38 of the full interview that the full account which the appellant now relies on emerged. I see the force of Ms Plimmer's submissions that, if one looks at the earlier questions, they did require direct answers and they related, and understandably related, to the warehouse incident and no more general question was put until a later stage. It does not mean that the adjudicator was not entitled to attach weight to the fact that the explanation to be put forward, and which was claimed to be a life-threatening explanation, was not one which was mentioned earlier, even in that full interview.
21. As to the point that the appellant may not have wished to divulge information which may get to Iranian intelligence, he did in terms state at the entry interview that it was "Iranian intelligence wanted to blame me for the incident and kill me." That showed no reluctance on his part either to mention the intelligence services of Iran or to state the seriousness of how he considered they would view the warehouse incident.
22. I turn to the central question which is whether the finding of fact was one which can withstand the scrutiny of this court. I do not doubt that the adjudicator had in mind the many other matters which had been canvassed in the course of evidence and submissions as well as the change of explanation and introduction of The Satanic Verses; he refers in terms to what "the appellant has said since then." Undoubtedly other matters, relevant matters had been canvassed; the "oddness", as the Home Office representative put it, of the search of the home not taking place until after the release and the curiosity arising from the fact that the father is claimed to have been arrested, and yet at the screening interview it was said that it was the father who had paid the sum, no doubt a substantial sum, to obtain the travelling facilities to the United Kingdom. The lack of any subsequent contact with Iran may be explicable but in the present context it is equally a matter which a fact-finding tribunal would be entitled to take into account.
23. I have no doubt that the adjudicator was entitled to make the finding of fact he did. It was a comprehensive finding on credibility and it was accompanied by a finding that the search of the house did not occur. In my judgment, not only was the adjudicator entitled to make those findings but, in the circumstances, no error of law is revealed in his failure to set out more fully in his conclusions the factors which had led to his comprehensive finding adverse to the appellant. I cannot accept the submission that he would not have had those other matters in mind; they are fully canvassed in his determination.
24. Reference has been made to the case of Karimi v SSHD [2006] EWCA Civ 263. Giving the leading judgment Maurice Kay LJ stated at paragraph 18:

"In my judgment the insuperable difficulty faced by the appellant on this appeal is that the interview record, which the immigration judge was entitled to find to have been substantially accurate, amounted to a detailed account of events at the time of student demonstrations in July 1999 and was not in terms an account of the very different demonstration, not of students but of regime-encouraged hardliners, on 1 February 2000. The immigration judge was entitled to find that the discrepancy between the interview account and the evidence given to him could not be satisfactorily explained and that that deeply undermined the credibility of the appellant. It was upon that finding that the appellant's case before the immigration judge ran aground."

Although the factual circumstances are different in the present case, the reasoning, in my judgment, equally applies.

25. Ms Plimmer also referred to the case of R (Q) v Secretary of State [2003] 3WLR 263. Lord Phillips of Worth Matravers MR, giving the judgment of the court, stated at paragraph 95:

"All will of course depend on the claimant's individual circumstances. There is a considerable difference between a person who has recently arrived and a person who has been subsisting in this country for an appreciable period (and has for example claimed asylum after being caught working illegally). Thus the number and extent of the questions which it will be appropriate to ask will depend upon the circumstances of the particular case. It will be a matter for the interviewer in each case to decide."

The fact-sensitivity of the exercise to be performed is amply recognised in that determination.

26. In those circumstances, I would refer only briefly to the determination of the Immigration Appeal Tribunal. They dealt with this issue briefly. It is accepted by Ms Plimmer that if there is no error of law in the adjudication, difficulty in understanding or approving of the tribunal's approach does not entitle her client to relief. The tribunal found at paragraph 18:

"The adjudicator was entitled to reject the appellant's credibility on the evidence for the reasons given in his paragraph 52 and his concise determination does not reveal any error of law."

I respectfully agree. The tribunal went on to say:

"His further reasons, given in his paragraphs 53 and 54, even if open to criticism, were entirely subsidiary."

27. Mr Dhillon puts it the other way round. He relies, and in my judgment correctly relies, on the reference to the other matters considered in the later paragraphs as being an important part of the adjudicator's finding. I find the expression "entirely subsidiary", with respect, difficult to understand, but that difficulty does not affect the lawfulness of the decision of the adjudicator.
28. In the circumstances I would refuse permission to appeal on that ground.
29. The second point which arises, and it is the one on which permission to appeal has been given, is whether there is an error of law in the tribunal's decision not to admit further evidence. The evidence which it was sought to admit consisted of two statements by an asylum seeker whose claim for asylum had been successful, Mr BH. By an adjudication of 21 May 2004 an adjudicator, reversing the decision of the Secretary of State allowed an appeal both under the Human Rights Convention and the Refugee Convention. What AM seeks to rely on is, first, a statement by BH given prior to his hearing that Professor Mirzaie films had been given to him "by a friend, AM". In a more recent statement, which post-dates the determination in his case and post-dates the finding of the adjudicator, BH states: "I further confirm that AM passed me videos of Professor Mirzaie while I was in Iran".
30. The submission is that had the adjudicator known that, his view about the credibility of the appellant may have been a different one. If BH's evidence was accepted that the appellant was aware of The Satanic Verses and had handled the film of Professor Mirzaie, that would have given plausibility, it is submitted, to the fears expressed by the appellant in relation to the search of his premises and to the presence there of incriminating, in Iranian terms, literature.
31. In submitting that an error of law occurred, Ms Plimmer relies on the decision of this court in E and R [2004] QB 1044. She accepts that a tribunal should start from Ladd v Marshall principles, but she refers to the flexibility which has been introduced into the Ladd v Marshall test in cases such as this following the decision in E and R. I refer to the facts before looking at the principle stated in that case. The tribunal found that, in considering the applicant's fresh evidence, they should have regard to Ladd v Marshall principles. They went on to say: "It was clear to us [paragraph 15] that it must have been a deliberate and considered decision". That was the decision of the appellant's solicitors not to place BH's statement before the present adjudicator. They were the same solicitors as had acted for BH. The tribunal added:

"There was, for example, no suggestion that the witness statement was submitted in advance of the hearing as part of the appellant's case as the standard directions require."

At paragraph 16:

"Furthermore, we could not agree that the failure to produce the evidence showed that the appellant's case was not properly presented. It would not have been unreasonable to consider that an adjudicator might well doubt the credibility of an appellant's story which so closely followed what was said to have happened to his friend, and disbelieved one or both of them. In any event, the fact that the appellant had given Mr H a copy of The Satanic Verses did not prove that he had two more copies at his home sometime later."

32. The principle arising from E and R is stated at paragraph 88, Carnwath LJ giving the judgment of the court:

"One can perhaps draw three lessons from that decision (that is the earlier decision in Khan [2003] EWCA Civ 530).

"i) Not all (or even most) Court of Appeal Decisions in this area should be seen as laying down propositions of law; the decisions in this area are unusually fact-sensitive;

"ii) It provides another good example of the need for a residual ground of review for unfairness arising from a simple mistake of fact;

"iii) It illustrates the intrinsic difficulty in many asylum cases of obtaining reliable evidence of the facts giving rise to the fear of persecution and the need for some flexibility in the application of Ladd v Marshall principles."

To follow the second of those propositions one needs also to refer to paragraph 66 of the judgment:

"In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in the statutory contexts where the parties share an interest in co-operating to achieve the correct result. Asylum law is undoubtedly such an area. Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of the Criminal Injuries Compensation Board case. First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter, secondly the fact or evidence must have been "established," in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant, (or his advisers) must not have been responsible for the mistake. Fourthly, the mistake must have played a material, (not necessarily decisive), part in the tribunal's reasoning."

The court commented that the principles established in Ex Parte Al-Mehdawi [1990] 1 AC 876 had not been generally departed from (paragraph 83)

33. Thus, while flexibility is introduced, the court has stated in E and R in plain terms that flexibility will not arise, at any rate normally, when the alleged mistake has been the responsibility of the appellant or his legal advisers. We are still totally without any explanation as to why material which plainly was available to those acting for the appellant before the adjudicator was not put in evidence at that stage, if it was thought to be helpful evidence.
34. Mr Dhillon understandably submits that the errors do not amount to a case that the tribunal made an error of law. Of course, I accept the proposition that this court's jurisdiction arises from errors of law by the tribunal, but it appears to me that the principle stated at paragraph 88 of E and R does open the door to flexibility in determining what an error of law is. However, on the facts of this case, in my judgment it is far from established that the tribunal have made an error of law. They were entitled not to admit the proposed fresh evidence.
35. A further factor is that stated in the reasons and it could and should, in my view, be taken a stage further. From the handing over of incriminating material to BH in circumstances about which very little detail is known, it does not follow that such material would have been present in the house of the appellant. Moreover, the finding of the adjudicator was that there had been no raid on that house. The handing over at some other time of material to BH provides no help at all in establishing that a raid was conducted at the home. The appellant accepts that there had been no mention during his several days of detention, no allegations, in relation to incriminating Rushdie or other religious or anti-religious material. It is remote from the central finding of fact which the adjudicator made as to the alleged raid.
36. The court can be expected to consider the additional flexibility available to it. Laws LJ in granting permission said that he felt unease about the admission of the evidence. Further scrutiny which, with the help of counsel, we have conducted today, leaves me in a position where I have no unease about this issue. I am far from persuaded that the tribunal made an error of law in declining to admit the evidence; I am far from persuaded that this court should intervene in order to provide a fresh hearing of the facts before the tribunal.
37. For those reasons I would dismiss the application on the first ground and the appeal on the second.
38. LADY JUSTICE ARDEN: I agree. I would like to add some additional observations on the question whether the fresh evidence, if admitted, would meet the tests in E and R. It is important, in my judgment, not to take an imprecise approach to evidence as to a mistake of facts which can qualify as giving rise to a mistake of law. The evidence has to meet the tests laid down in E and R, and I particularly refer to paragraph 66 of the judgment of Carnwath LJ which my Lord, Lord Justice Pill, has set out.
39. The evidence has to be as to material fact and the evidence in the present case goes no further than to show that Mr BH had received a film made by Professor Mirzaie, and no doubt a film of an anti-regime nature, and that Mr BH's claim for refugee status was accepted by the adjudicator. However, Mr BH gives no date as to when Mr AM gave the film to him and it does not follow that Mr AM had in his house further copies of those films when his house was, on his account, searched by the security forces.
40. This must have taken place in about March or April 2004, whereas the incident referred to by Mr BH in his evidence must have been before November 2003, when he left Iran. Nor does the evidence of Mr BH show that Mr AM had copies of The Satanic Verses, still less that they were tucked inside the covers of the Koran. Unless they were so held their position would not render him liable to the death penalty in Iran; mere possession of The Satanic Verses does not, apparently, give rise to an offence of that severity but if they are held in the manner which Mr A M describes they would render him liable to the death penalty, as it is evidence that a person is an unbeliever; indeed, I understand it to give rise to liability to the death penalty even without trial.
41. For the reasons which I have given, the fresh evidence did not, in my judgment, show that he had films or copies of The Satanic Verses at his home at the time of the raid. It provided some circumstantial evidence of this, but while I would not go so far as to say that circumstantial evidence could not give rise to a mistake of fact, the evidence in this case was too remote to give rise to unfairness as the separate head of challenge in an appeal on a mistake of law.
42. Accordingly, for these reasons and for the reasons already given by my Lord, Lord Justice Pill, I would make the same order.
43. SIR MARTIN NOURSE: I agree that the application for permission to appeal should be refused and that the appeal against the AIT's refusal to admit the fresh evidence should be dismissed.

Order: Appeal dismissed.