England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
[AIT No. AA/04285/2005]

		Royal Courts of Justice Strand, London, WC2A 2LL
		19 February 2007

Lord Justice Auld:

1. This is an appeal of MS by permission of Carnwath LJ against the decision of the a Senior Immigration Judge, Judge Eshun, against the determination of an Immigration Judge, Ms Holder, in turn upholding the decision of the Secretary of State refusing to vary his leave to remain in this country on asylum or human rights grounds.
2. MS, who is now aged 20, is a citizen of Iran. He has been resident in this country for over four years, having arrived here as an asylum seeker in October 2002 when he was aged 16. In December 2002 (that is, shortly after his arrival) the Secretary of State refused his asylum and human rights applications, but granted him exceptional leave to remain until March 2004 when he would be 18. The Secretary of State did that under a discretionary scheme for unaccompanied minors.
3. In mid-March 2004, just before MS's period of exceptional leave came to an end, he applied for its extension on human rights grounds, namely under Articles 2, 3 and 8. By a decision letter of 8 June 2005, the Secretary of State refused that application and also recorded his decision not to treat it as a fresh application for asylum, since to do so would have added nothing further to the human rights claim or the determination of it.
4. In outline, and so far as material to the grounds on which MS has leave to appeal, his asylum and human rights claims were based on the following account. In March or April 2002 he had, as a schoolboy aged 16 in Iran, begun to take an interest in satellite television programmes, focusing on alleged political murders in Iran. He taped the programmes and distributed them to school friends. His headmaster discovered what he was doing and he or someone else reported him to the police, because possession of and use of satellite dishes to receive broadcasts was illegal in Iran.
5. Continuing with his account in support of his claims, the police confiscated the satellite equipment, which was at his mother's and his home. He was fined and excluded from school for a week as a result. That was that, but then, two or three months later in the summer of 2002, he was involved in a large student demonstration outside Tehran University. His part in it, like that of many others, consisted in chanting in unison with a large number of students present at the demonstration. He left it when it finished without incident to him or caused by him. But about three days later police came to his house and arrested him. They confiscated satellite equipment that his mother had bought in replacement of the earlier confiscated equipment, and also some tapes.
6. The police took him into custody where, he maintained, they held and tortured him for 45 days; the torture consisting of serious brutality, kicks and blows and the use of batons on no less than 17 of the 45 days of his detention. They released him at the end of that period. On the very day of his release his mother arranged for his passage to this country, where he came to live with relatives who had been here for some time and with whom he has lived ever since.
7. At the turn of 2002 and 2003, shortly after the Secretary of State had rejected his asylum and human rights claims, he maintains that he received in this country, through the post from his mother, a typescript document seemingly with an official Iranian Revolutionary court stamp on it, summoning him to attend court in response to an accusation cryptically described on the document as "security of training and education".
8. On MS's appeal to the Immigration Judge in July 2005 against the Secretary of State's refusal to extend his leave to remain on human rights grounds, he gave evidence in confirmation of his account, which by now was to be found in three witness statements. He also put before the Immigration Judge the document purporting to be a summons to attend court and a report on it from an expert on Iran, Dr Ansari, a Reader in Modern History at the University of St Andrews. The thrust of Dr Ansari's report was that there was nothing about the document leading him to believe that it had been "forged", though such a forgery would have been easy. He added that the official stamp on the document "[made] it extremely unlikely that it was a forgery".
9. The Immigration Judge, in her determination of 30 July 2005, rejected as incredible in a number of material respects MS's account of all the events that he had maintained caused him to flee Iran and to fear persecution if he were to be returned there. The Immigration Judge also found that the document purporting to be a summons to attend court was, in her words, "unreliable," and she placed no weight on Dr Ansari's report as to its seeming authenticity.
10. In addition the Immigration Judge rejected a further matter not relevant to this appeal on which MS had relied before, namely his conversion to Christianity since his arrival in this country. The Immigration Judge did not accept that that conversion was bona fide or lasting and found that even if it were, MS was not at risk of persecution in Iran on account of it, since his conversion, such as it was, had taken place here. There was no evidence that the Iranian authorities were aware of it, and he had said that he would not proselytise.
11. The matter then became before a Senior Immigration Judge in June 2006, by way of reconsideration under rule 31 of the Asylum and Immigration Tribunal Procedure Rules 2005. Those Rules required the tribunal to decide whether the Immigration Judge had made a material error of law, and that if it so decided that there was no such error, it should order the Immigration Judge's determination of the appeal to stand. If it decided on the other hand that there had been a material error of law on the part of the Immigration Judge, Rule 31(3) required the Senior Immigration Judge to substitute a fresh decision to allow or dismiss the appeal and make up its own mind.
12. In the circumstances of this case, as will appear, the Senior Immigration Judge did not need to consider the second limb of Rule 31(3); its task, as it approached it and as it determined it, was to ask itself whether there had been a material error of law by the Immigration Judge in determining the matter against MS on the grounds of his incredibility. A "material error of law" for this purpose is defined in rule 31(5) as an error of law that would affect the Immigration Judge's decision upon the appeal.
13. MS's complaint before the Senior Immigration Judge was that the Immigration Judge's adverse credibility findings were such as to amount to a material error of law -- put in less formal terms, sufficient to render the whole determination unreliable. The Senior Immigration Judge, in a determination of 11 July 2006, expressed the view that the Immigration Judge's assessment of credibility, which spanned a number of issues, some 11 or 12, was in three respects unreasonable. But he found that they did not constitute material errors or a material error of law within the meaning of rule 31(5) requiring him to consider the matter again. The Senior Immigration Judge also upheld the Immigration Judge's approach to the document purporting to be a summons to court and Dr Ansari's evidence about it, namely that the Immigration Judge was entitled, in the way she reasoned the matter, to consider it unreliable.
14. MS's case as put by Ms Yinka Adedji to this Court on his behalf is, first, the unreasonableness of certain -- three -- of the Immigration Judge's individual findings of incredibility -- an unreasonableness identified and accepted by the Senior Immigration Judge -- rendered his whole determination on that issue unsafe; and secondly, that both the Immigration Judge and the Senior Immigration Judge erred in law in failing to give weight to the document purporting to be a summons to court and Dr Ansari's evidence about it.
15. As to the first of those issues, the impact of the errors made by the Immigration Judge in relation to three issues on her overall finding of incredibility, based on some eight other findings of incredibility, all left unscathed by the Senior Immigration Judge, the three unreasonable or otherwise erroneous findings of the Immigration Judge, according to the Senior Immigration Judge on which Ms Adedji relied, are conveniently summarised in paragraph 23 of the skeleton argument of Mr Keiren Beal on behalf of the Secretary of State. They are as follows:

(1) A finding by the Immigration Judge of inconsistency in the appellant's account of his recording of video tapes for his friends. In the Senior Immigration Judge's view, the Immigration Judge had been wrong to find that there was such inconsistency. However, he expressed the view that the error was not in the event material.

(2) A finding of inconsistency by the Immigration Judge in MS's account of how many people had attended the demonstration outside Tehran University. It was the Senior Immigration Judge's view that there was no material discrepancy in that account and that the Immigration Judge should not have relied upon it.

(3) The Immigration Judge's conclusion that it was MS's mother who should have been arrested and not him, in relation to the purchase of a replacement satellite system after the confiscation of the first. On the Senior Immigration Judge's view, that was an unreasonable finding and not properly reasoned.

16. In the account given by MS of the circumstances giving rise to his decision to flee Iran those three matters are, it seems to me, at best trivial when looked at in the context of MS's account to the Secretary of State and to the Immigration Judge, in respect of which there were other inconsistencies of far greater significance, all of which remained, as I have indicated, unscathed, and some of which were unchallenged in the proceedings before the Senior Immigration Judge.
17. The eight findings of incredibility by the Immigration Judge that the Senior Immigration Judge accepted as being reasonably open to her, are again helpfully summarised by Mr Beale in his skeleton argument, this time at paragraph 25:

(1) MS did not mention that the Islamic Secret Police had a role in the matter until the hearing of his appeal; an omission which the Immigration Judge considered undermined the credibility of his account. That was a finding of incredibility which was not challenged before the Senior Immigration Judge.

(2) A finding by the Immigration Judge that it was not credible that MS's mother would supply another satellite dish so soon after the first had been confiscated, a finding upheld by the Senior Immigration Judge as being reasonably open to him.

(3) A conclusion by the Immigration Judge that MS and his mother would have known that satellite dishes had been banned in Iran, at the very least after the first confiscation, a finding upheld by the Senior Immigration Judge as one reasonably open to the Immigration Judge, despite some contrary objective country material indicating that satellite dishes were easily obtainable in Iraq despite being banned.

(4) A finding by the Immigration Judge that it was not credible for MS to have recorded more tapes after his first brush with the authorities, having regard to the action taken by his headmaster and possibly the Iranian Secret Service in relation to the confiscation of the first lot of satellite equipment. That finding of incredibility by the Immigration Judge was not challenged on the reconsideration before the Senior Immigration Judge.

(5) A finding by the Immigration Judge that it was highly unlikely that MS would have been singled out by way of a photograph from a video still of the crowd chanting in the demonstration outside Tehran University, a finding upheld by the Senior Immigration Judge.

(6) A point made by the Immigration Judge against MS that he had not suggested he needed medical attention following his 45 days' detention and brutal treatment by the Iranian police, a matter that the Immigration Judge regarded as being inconsistent with his account of torture and brutality during that period. The Senior Immigration Judge upheld that finding, accepting that the absence of any suggestion of the need for medical attention undermined credibility of MS's claim.

(6) A finding by the Immigration Judge of a discrepancy in the account given by MS of the way in which he came to leave Iran. That finding against MS was not challenged by him on the reconsideration before the Senior Immigration Judge, and remained, in the Senior Immigration Judge's, view perfectly sustainable.

(8) In relation to the purported court summons and Dr Ansari's evidence, the Immigration Judge's view that there was no credible explanation as to how MS obtained that document from his mother and that he did not know where she was at the material time. The Senior Immigration Judge upheld that criticism by the Immigration Judge, regarding it as sound and certainly not one disclosing any error of law.

18. As Ms Adedji submitted, the finding of the Immigration Judge as to MS's incredibility was central to her determination. She maintained that, once the Senior Immigration Judge had taken the view that the Immigration Judge had erred in her finding of incredibility as to parts of MS's account, it vitiated -- or at least called into question -- the Immigration Judge's assessment of the incredibility of the remainder of it. She submitted, by reference of an observation of Schiemann LJ, as he then was, in Crown v Immigration Appeal Tribunal ex parte Judes [2001] EWCA Civ 825, that the test for the Senior Immigration Judge and this court is whether, even if the Immigration Judge had not erred as she did on issues of MS's credibility, she would have inevitably reached the same conclusion.
19. Such a question, added Ms Adedji, as did Schiemann LJ in ex parte Judes, requires "the most anxious scrutiny". So far as the first limb of Rule 31(3) of the Civil Procedure Rules is concerned, going to the identification of a material error of law, that observation, though, made in a judicial review context, may be equally applicable in this jurisdiction. But, in my view, in the circumstances of this case, it is not critical to its outcome.
20. Focusing on the Immigration Judge's findings on the issues of credibility, Ms Adedji submitted that there is a real risk that the Immigration Judge was influenced, consciously or not, by the negative view she had formed of MS's credibility when assessing the rest of his account. She took the court through the Immigration Judge's various findings on this issue, suggesting in effect that they indicated a rolling infection of her approach to the overall issue whether MS had told him the truth.
21. Ms Adedji's remarks suggested that just one error of that sort would be enough to put a question mark over the whole of an adverse conclusion as to credibility. But as she developed her arguments, it became apparent that she accepted that an overall analysis of materiality has to be made on the effect, if any, of such an error or errors on the remainder of adverse findings which were not challenged or rejected by the Senior Immigration Judge as erroneous.
22. Mr Beal submitted that an error or errors of fact or law by the Immigration Judge does not necessarily require a Senior Immigration Judge on reconsideration to overturn her decision, having regard to the terms of Rule 31. It all depends, he said, on the materiality of the error or errors and of what remains in the way of unchallenged or unscathed adverse findings of the Immigration Judge. He pointed to those that he had helpfully set out in paragraph 25 of his skeleton argument that I have summarised, eight of them as compared with the three errors upon which Ms Adedji relies. Mr Beal maintained that those were not only numerically greater, but, in the main, were of far more significance, much greater materiality, than the latter. He submitted that the three errors identified by the Senior Immigration Judge were comparatively trivial. Two of them he challenged, but for the purpose of his argument he was content to accept that they were there to be dealt with and considered by the court on the question before it.
23. It is unfortunate that the Senior Immigration Judge, in considering the first -- and what in the event was the only -- question for him under the Rule 31, namely "had the Immigration Judge made a material error of law?", did not stand back after his detailed attention to each one of the claimed errors, and did not articulate his conclusion on the issue of materiality in the round. He took each one of them, stopping at paragraph 16 of his determination with the last of his individual findings on credibility, before moving on at paragraph 17 of the determination to the second and complementary issue as to the weight to be given to the document purporting to be a summons to court, and Dr Ansari's evidence.
24. The nearest the Senior Immigration Judge got to any articulation of an overall assessment on the issue of credibility is in the last paragraph of his determination, paragraph 24, which reads:

"In conclusion, while I have accepted that some of the findings made by the Immigration Judge were unreasonable, they do not constitute material errors of law. Accordingly, the original decision dismissing the appellant's appeal shall stand."

However, it is plain from the subject matter of each of the Immigration Judge's findings, and as rehearsed seriatim by the Senior Immigration Judge, that the latter's somewhat cryptic conclusion in paragraph 24 that he was satisfied overall that so small was the materiality or significance of the three errors of the Immigration Judge when compared with the cogency of her other adverse findings of credibility, that he would have reached the same conclusion without them.

25. The findings of the Immigration Judge: at paragraphs 30(e), as to the lack of any suggestion of injury from the 45 days detention and brutality, at paragraph 30(f) as to MS's inconsistent accounts of his departure, and at paragraph 30(c) of the unlikelihood of him being singled out for persecution as one of many in a crowd, were of far greater significance than the other criticisms of the Immigration Judge, including the three made in error. They were, in my view, more than sufficient for him to take the view that, looked at overall, the Immigration Judge had made no material error of law in those respects or in her overall finding of MS's incredibility. For this Court to take a different view it would, it seems to me, require us to conclude that the Senior Immigration Judge was perverse in her conclusion as to materiality, which clearly in my view she was not.
26. As to the second issue in the appeal, going to the document purporting to be a summons to attend court, and Dr Ansari's evidence, it is important to note, as Mr Beal has emphasised, that the question for the Immigration Judge was not whether the summons was a forgery. There were two questions for him: Was it reliable as an indicator of some likely official action against MS if he had responded to it? Secondly, if so, what action would that be, one of which he could have had some well-founded fear of persecution or inhumane treatment, or simply of some court process?
27. First, the document as put before the court, if authentic, appears to have the character of a conventional court document. It sets out MS's name, his father's name, his occupation as student and his address. It describes, as I have said, the accusation as "security of training and education". It identifies what is seemingly an official place that he should attend, and notifies him that he should attend within three days after reading the document. It is signed and it contains the information that if he wishes to have a lawyer with him or a witness, he should make arrangements to do so. He is warned that if he does not attend he will be arrested and that a court of justice would issue a sentence subject to him providing some acceptable excuse to the court. That is the document MS put before the Immigration Judge, said to have been received by him once in this country by post from his mother.
28. The material part of Dr Ansari's evidence is to be found in paragraph 5 of his report which was also put before the Immigration Judge:

"With respect to the authenticity of the summons, there is nothing which would lead me to believe that it had been forged. It is entirely true as the British Embassy points out that forgeries would be generally easy to make and that individuals are available to type out the necessary forms. In this case, the form is typed rather than handwritten, which is different to other similar documents I have seen, although this cannot be taken as an indication of a forgery (it is just as, if not more likely that a handwritten form would be forged). The existence however of an official Revolutionary Court stamp on this warrant makes it extremely unlikely that this is a forgery."

29. The Immigration Judge dealt with these pieces of evidence at paragraph 31 of her determination in these terms:

"The Appellant submits a summons which he alleges was sent to him by his mother after her left Iran. I have considered this document in the light of both the evidence of Dr A. M. Ansari … and the case of Tanveer Ahmed [2002] UKIAT 00439. I do not find the summons to be a reliable document given:

a. the afore-mentioned credibility findings;

b. The fact that Dr. Ansari indicates … that the summons is in a form which is different to other similar documents that he has seen in that it is typed. Furthermore, he does not indicate what an authentic summons would look like. He also accepts that it is entirely true that forgeries would be generally easy to make. I do not find that it has been shown that the existence of a revolutionary court stamp on the summons makes it is [sic] extremely unlikely that it is a forgery given the afore-mentioned.

c. I also find that the Appellant was to say at the hearing that he does not know where his mother is. In which case, I find it highly unlikely that she would contact him by way of sending a summons and not indicating where she was.

d. It is of note that even if I had found that the summons was genuine, the determination [that refers to Tanveer] … indicates that there is nothing about the UN finding evidence of torture, let alone torture in ordinary prisons or treatment which breaches Article 3 to the ECHR."

30. The Senior Immigration Judge dealt with it similarly at paragraph 19 of his determination in these terms:

"It is not as suggested in the grounds that Dr Ansari looked at the general layout and other parts of the summons. It appears that having accepted that it is entirely true that forgeries would be generally easy to make, the only basis for saying that this document would not be a forgery was the Revolutionary Court stamp. Dr Ansari then confirms that the summons was typed rather than handwritten which was different from other similar documents that he had seen, but he does not as rightly stated by the Immigration Judge indicate what an authentic summons would [look] like. Accordingly, I do not find that the Immigration Judge misunderstood Dr Ansari's report. It is clear also from paragraph 31 that the Immigration Judge applied the principles in Tanveer Ahmed in his consideration of the report. He did not find the summons to be a reliable document and gave sound reasons for his finding. His conclusion discloses no error of law."

31. Mrs Adedji prefaced her submissions on this issue with the observation that, as is apparent from what I have just read, the Immigration Judge herself recorded at paragraph 31(a) that her adverse credibility findings had had some relevance to her giving little weight to Dr Ansari's evidence on the question whether the purported court summons was a forgery. She also complained that the Immigration Judge reached her findings of incredibility without also having had regard to Dr Ansari's evidence -- to put it another way, without waiting for her findings as to Dr Ansari's evidence.
32. In any analysis of this sort, where an overall conclusion is made up of a known number of constituent parts which, depending on how each falls, may lead to an overall conclusion one way or the other, the decision-maker has to start somewhere. As to the first point of Ms Adedji, why should the Immigration Judge not feed her general finding of incredibility into her finding with regard to the purported summons and Dr Ansari's evidence? Her overall finding of incredibility remains unscathed, so that the summons issue cannot on its own amount to a material error of law.
33. As to the second point of Ms Adedji, it is plain from paragraph 32 of the Immigration Judge's determination -- that is to say, after she had dealt with the summons and Dr Ansari's evidence as well as the individual findings of incredibility -- that she took an overall view on this matter in relation to both aspects of the case. It reads:

"Therefore, I do not find that the Appellant was involved in videoing satellite television in March or April 2002. Even if he had, I conclude that I do not find that the Appellant's initial alleged involvement with videoing television programs resulted in him being persecuted or ill-treated. He was fined and excluded from school for a short period and warned about his behaviour. I do not find he was involved in any videoing thereafter. I do not find that he was involved in a demonstration. I do not find that he was subsequently detained for forty-five days and ill-treated."

34. Mr Beal submitted that the Immigration Judge and the Senior Immigration Judge properly applied the case of Tanveer Ahmed, which I have mentioned (reported in [2002] UKIAT 439; [2002] IAR, 318), an appeal to the tribunal presided over by Collins J, where, at paragraphs 30 and 31, he emphasised that the important point for a tribunal in the case of a document the authenticity of which is in doubt, is its unreliability for the purpose of which a claimant is putting it forward. Unless an allegation is made by the Secretary of State that such a document is a forgery, it is not for him to prove that. Any onus of proof is on the claimant. It is not for the Secretary of State to show, for example, that the document is not authentic. It is rather for the claimant to prove on a reasonable likelihood test that it is authentic. So here, submitted Mr Beal, the critical issue for the Immigration Judge and the Senior Immigration Judge was the unreliability of this evidence for the purpose of which MS was advancing it. At its highest, he submitted, it was a summons to attend a Revolutionary Court, and even if authentic, it was not apparent for what purpose relevant to his claim of asylum or inhumane treatment it could possibly have any relevance. The ruling of Collins J in Tanveer Ahmed was approved by this court in Mungo v The Secretary of State, which, I think, is unreported, a decision dated 20 February 2003 at paragraph 18.
35. In my view, there is no more in this part of the appeal than there was in the first. The Immigration Judge in paragraph 31 of her determination read as a whole, had already concluded that the document purporting to be a court summons, and Dr Ansari's evidence about it, to be of little or no weight in support of MS's claim. That was how the Senior Immigration Judge understood it in paragraph 19 of his determination. To be left in that state of mind, the Immigration Judge did not have to and did not make any finding one way or another as to whether the summons was a forgery or indeed as to its authenticity otherwise.
36. As to the authorities to which I have just referred, Tanveer Ahmed and Mungo, they indicate, as I have said, that where the issue is reliability for the purpose of the asylum or human rights claims, not forgery, there is no onus on the Secretary of State to prove that the document is not authentic. The document in this case, I should add, even if valid, would not go to any finding of asylum or human rights, as the Immigration Judge expressly found in paragraph 32 of her determination.
37. For all those reasons I would dismiss the appeal.

Lord Justice Rix:

38. I agree.

Lord Justice Gage:

39. I also agree.

Order: Appeal dismissed.