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 AND IMMIGRATION TRIBUNAL
[HX/39429/2003]

		Royal Courts of Justice Strand London, WC2
		30th January 2006

1. LORD JUSTICE MAURICE KAY: This is an appeal from the Asylum and Immigration Tribunal, in particular from a decision of an immigration judge who dismissed the appellant's appeal against the refusal of the Secretary of State to accord her refugee status. A related human rights appeal was also dismissed.
2. The appellant is 31 years of age. She came to this country from Iran on 15 March 2000 and sought international protection upon her arrival. She is from a notable family and her parents and a brother, who had arrived in this country some months earlier, have indeed been granted asylum. Her sister, a well-known actress in Iran, still lives in that country. Much of the dispute about the appellant's application for asylum relates to an interview which took place at Heathrow an hour or so after the appellant's arrival from Iran. On that occasion she was no doubt in a tired and anxious state following a long flight. She was interviewed in Farsi, although she is proficient in English.
3. The first substantial question asked in the interview was in these terms: "What particular event caused you to leave your own country?" It attracted a long answer, part of which reads as follows:

"The day that students demonstrated I was teaching – because I am a teacher professionally. Some of these groups who were against the demonstrators came to the school and said we should shut the school and that we should demonstrate against the student protestors. We didn't take this seriously. We said that we cannot shut the school as it was not arranged with the mothers to pick up the children.

"The afternoon of the same day some university students were supposed to come to our school and explain to us the reason for these student demonstrations. These students came and we were in the process of listening to what they had to say. When the talk ended we came out, some of these people belonging to Ansar Hezbullah came on their motorbikes. Whilst on their motorbikes they were beating people with their batons. They hit me with a motorbike and I was thrown to the ground and injured. I had to have four stitches in my right leg."

4. There is then interposed the words, "Date of events?", whereupon the account continues:

"Our month June/July of 1999.

"As these students, who came to give the talk, were pro-Khatami. The people on the motorbike realised who we were – that we have not participated in a demonstration against the student protestors and that we were listening to what the students had to say about Khatami. Two or three of the teachers who were pro Hezbullah gave my telephone number to Ansar Hezbullah."

5. There were numerous questions which followed seeking elucidation of that account and other matters. The Secretary of State refused the asylum application in a letter dated 20 November 2000; the letter makes it plain that the credibility of the appellant's account was seriously in issue.
6. On 2 May 2003 the Secretary of State published supplementary reasons, on that occasion dealing with the human rights aspect of the case.
7. The appellant appealed to an adjudicator and her appeal was supported by a witness statement dated 17 November 2003. In that she referred to the events of July 1999 in different terms. She said that on that occasion she had been arrested following her father's arrest, as the authorities wanted to force her to confess about her father's political activities. She said that it was not a formal arrest. She was taken away for questioning and soon released. She then dealt with the events of 1 February 2000, when she described an incident at the school at which she had been teaching. She explained that 1 February is a special date in Iran because it is considered to be the anniversary of the return of Ayatollah Khomeini to Iran. The witness statement proceeds:


"The regime had organized the march by people to show their support for the regime. They wanted to show that their march was greater in numbers than the July 1999 student demonstration. As a result they were going around school collecting people and forcing them to join the march. I refused to allow them to take the students. I telephoned my group friends and told them what had happened. They told me that they will come to school and we would go somewhere else to discuss our plan of action. After they came and we were coming out of the school when we saw Ansar-e-Hezbollah waiting for us. I immediately recognised two of them as they were the ones who took me away for questioning in July 1999. These two had also on a number of occasions harassed me on the streets. However on this occasion, I believe they had been informed that I was within a group of teachers who had refused to allow the children to join the demonstration in support of the regime.

"As we came out of the school they started to gather around the gate and asked us why we had a gathering. Although we denied having political meetings they started to attack us with battens and wooden bats. The situation immediately became tense and they started to intimidate us. I realized that soon there would be fights and they would start to arrest the people. Instinctively I started to run away and as I was doing so I heard one of my friends shouted to watch out and as I turned one of the Ansar-e-Hezbollah hit me with the bike and I fell on the floor."

8. She then described being taken by a friend to a private clinic for her injured leg to be sutured. Pausing there, it can seen that what was being described in relation to 1 February 2000 was very different from what had been described previously in respect of July 1999. On 17 December 2003 an adjudicator dismissed the appellant's appeal. However, on 14 February 2005, the Immigration Appeal Tribunal allowed her appeal and remitted the matter for a rehearing. This took place just after the coming into force of the new procedural arrangements that came into being on establishment of the Asylum and Immigration Tribunal in April last year. The immigration judge who heard the remitted appeal considered it de novo. However, on 22 April 2005 he too dismissed the appellants appeal. It is necessary to refer to some of his findings. As to the circumstances of the interview at Heathrow Airport, he noted that in 2005 procedures had changed in relation to the interviews, there now being a two-stage process in the form of a brief interview followed by a later in-depth interview. He added in paragraph 10:

"I must however consider the conduct of the interview when the appellant was interviewed on 15 March 2000 and taking also into account the appellant's background. She acknowledges to be proficient in English. She has a degree in English from Tehran University. She has been an English teacher for some five years. She has also acted as a reporter for two newspapers. She produced a letter from one, which confirms her engagement by the newspaper. She also taught English at a private school for some five years and had been head of the English Department."

9. The appellant had maintained that she had not realised the potential importance of the interview at Heathrow Airport at the time when she had been asked the question, the answer to which I have set out at some length. The immigration judge disbelieved her when she said that she did not realise that potential importance. He added that when she had placed her signature on each page of the interview record, she was accepting that she was satisfied as to the accuracy of that record.
10. The credibility of the appellant was and remained the central issue. The immigration judge stated at paragraph 16:


"I find the appellant has attempted to boost her weak asylum claim with false embellishments. I find the record of interview is accurate. While every spoken word may not have been translated, it is an accurate summary of the appellant's answers."

11. He then referred to the obvious mismatch between the first account of events in July 1999 given at Heathrow Airport and the second account of the very different demonstration on 1 February 2000, which appeared in the witness statement of 17 November 2003. Plainly the appellant had been cross-examined as to that discrepancy. She had given an explanation, namely that having started chronologically in 1999 she had then been interrupted and prompted by the interviewer to concentrate on more recent matters, whereupon she had described the events of February 2000, but that these had been misattributed by the interviewer to the time in July 1999. The immigration judge rejected that explanation. He said he was rejecting it and:


"Taking into account her proficiency in English, her background, I find that she clearly understood the question and what was expected of her and described the events surrounding the demonstration of June/July 1999."

12. Both of the events described by the appellant undoubtedly happened. It is well known and widely recorded that there were student demonstrations on a wide scale in Iran in July 1999, and it is equally well known that there was a counter demonstration of a very different kind organised by the regime at the beginning of February 2000. At one point Mr Blum on behalf of the appellant was minded to submit that the immigration judge made no finding as to whether or not there had indeed been such a counter demonstration in February 2000, but it is plain from the language he uses in paragraph 20, "I find the events surrounding the demonstration of February 2000 …", that he was accepting that there had been such a demonstration. Indeed there was uncontroverted expert evidence to that effect and there had never been an issue as to the existence of such a counter demonstration at that time.
13. What the determination of the immigration judge amounts to is an unequivocal finding that the appellant was not to be believed when she described what had happened to her on 1 February or after that date, the subsequent events being matters of harassment. The fundamental reason was that that account was so strikingly different from what she had said in interview on arrival. As I have said, she had given an explanation for the difference but the immigration judge rejected her explanation. He clearly took the view that she had succumbed to the temptation to include in her account to him "false embellishments".
14. He referred to other matters which supported his conclusion, but it is apparent that the discrepancy between the airport interview and the evidence to the immigration judge was the fundamental reason for his adverse credibility finding. In addition he observed that "She came across to me as someone narrating a prepared script when giving evidence." Against those findings, it is unsurprising that he concluded that she had not discharged the low burden of proof that if she were to return to Iran she would be persecuted for her political opinion.
15. The present appeal to this court lies under section 103 Nationality, Immigration and Asylum Act 2002. Accordingly, in order to succeed the appellant must establish a material error of law on the part of the immigration judge, as explained by this court in R [Iran] and the Secretary of State for the Home Department, [2005] EWCA Civ 982. In Mr Blum's primary submissions he is deeply critical of the interview and the form which it took at the airport, with no legal representative present on behalf of the appellant, no tape recording and probably no reading back of the record at the conclusion. I say "probably no reading back" because of the words of the document itself, which on its final page dealing with the declaration of the appellant bears her signature under these words:

"I have also had the opportunity to have the interview notes read to me/and I have declined this offer and I am satisfied that this is an accurate record of the interview."

16. That, it seems to me, is consistent with the notes not having been read back in fact, which is what the appellant proffers as her recollection, although it is consistent also with her having been offered a reading back but having declined.
17. Mr Blum is also critical of the quality of interpreters in general. He seeks to support that submission by reference to material which has emanated from the Immigration Law Practioners' Association. It is true that in more recent times this court has expressed concern about procedural safeguards in interviews where there is no legal representative present and has referred to the desirability of tape recording; see for example The Queen on the Application of Dirshe v Secretary of State for the Home Department [2005] EWCA Civ 421, but the events with which we are concerned took place in 2000 and the interview was undoubtedly in accordance with the procedural requirements which were considered appropriate at that time. It is also significant, and the immigration judge treated it as so being, that the appellant is an intelligent, well-qualified woman who is proficient in English. In such circumstances the possibility of any operative unfairness is greatly reduced.
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 the 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.
19. The immigration judge referred to other matters which he said supported his adverse credibility finding, at least one of which contained a factual error. As to that the immigration judge said:


"Had the events surrounding the demonstration of February 2000 been true, Ansar Hezbullah is unlikely to wait for nearly four months, when she could have been tracked down to the hospital bedside where she was apparently receiving treatment for injuries when she claims to have been deliberately knocked down by a Hezbullah cyclist."

20. There are two apparent errors in that sentence. The first is that at no stage was the appellant in a hospital bed for a period of time; she had her injuries seen to in a clinic briefly on the day. Moreover the reference to "nearly four months" is difficult to comprehend, in view of the fact that the appellant travelled to this country on 15 March of that year.
21. For my part I do not consider that that sort of error played a significant part in the immigration judge's conclusion. It cannot be said to give rise to any material legal error. As I see it, the airport interview provided the fundamental and freestanding reason why the immigration judge disbelieved the appellant as to the central feature of her case. I have no doubt that he was entitled to take that view of it. His determination was far from perfect and in no sense can it be said to have been a model of the genre, but the appellant has failed to identify any material error of law. Accordingly, I would dismiss the appeal.
22. LORD JUSTICE RIX: I agree. In a variety of ways Mr Blum has sought to present a large number of points as raising a question of law; however, those ways and those points boil down to the essential issue of whether the immigration judge was entitled to object to Miss Karimi's evidence as not being credible. In my judgment there was a considerable body of evidence which permitted the judge to come to that conclusion. I am satisfied that her interview on entry was fair. There is ultimately no question of law for the consideration of this court. The appeal must therefore be dismissed.
23. LORD JUSTICE BROOKE: I also agree. Nothing in this judgment should be taken to devalue in any way the central messages contained in the very important research conducted between November 1997 and June 1999 on behalf of the Immigration Law Practitioners' Association in their June 1999 report, entitled "Breaking down the barriers". This report revealed some serious deficiencies in the process of interviewing asylum seekers at the port of entry, including Heathrow. Judge David Pearl, who was at that time president of the Immigration Appeal Tribunal, not surprisingly commended the report as a blueprint for higher standards of decision-making. Reforms to the interview process followed its publication in due course, although they were not in place at the time this appellant was interviewed in March 2000.
24. The recent decision of this court in The Queen on the Application of Dirshe v Secretary of State for the Home Department [2005] EWCA Civ 421 underlies the importance of the interview in the context of the processing of an asylum claim. But in public law context is everything, and on the facts of the present case I too find it impossible to detect any error of law in the immigration judge's determination. He was entitled to disbelieve the appellant on the matters of material importance in this case to which Maurice Kay LJ has referred.

Order: Appeal is dismissed.