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 AND IMMIGRATION TRIBUNAL
[AIT No. AA/01855/2007]

		Royal Courts of Justice Strand, London, WC2A 2LL
		23rd May 2008

Lord Justice Rix:

1. This is the renewed application of a young man whom I will refer to as "FJ" for permission to appeal from the reconsideration decision promulgated on 22 December 2007 of the Secretary of State's appeal, by a reconsideration, from the decision of Immigration Judge Phull, dated 25 March 2007. Immigration Judge Phull found in favour of FJ's claim for refugee status under the convention. FJ came here as a young man of sixteen from Iran, where he was born on 31 January 1988. He was given leave to remain here in his minority. He did not apply before he became an adult to extend that leave, but after he became eighteen he sought to be protected against a decision to return him to Iran on the ground of refugee status.
2. His essential case was that he, like his father, was a Kurd, and that in 2004 his father had been involved in a Kurdish demonstration as a result of which his father was shot at and imprisoned and he had to flee to avoid imprisonment himself, he being at the demonstration with his father. He said that he went into hiding in the cellar of his grandfather's home and that, with his grandfather's assistance, he was got out of the country.
3. When he made his initial witness statement back in 2004 he had described the political party, for which his father worked and for which he was demonstrating at that demonstration, as the IDP. As we understand it, the IDP is not a political party, or opposition party, or opposition grouping in Iran and, if those initials stand for anything, they stand for Iraqi Democratic Party. The Kurdish opposition party in Iran is not the IDP but the KDPI which, I think, stands for the Kurdish Democratic Party of Iran.
4. When FJ appeared before Immigration Judge Phull in March 2007, he relied upon a recent witness statement, dated 9 March 2007, in which he sought to correct what he described as a "fundamental error" in his 2004 witness statement, referring to the political party in question as the IDP. He stated in that later March 2007 witness statement that what he had told his solicitors, through an interpreter, was that his father was a member of the Democratic Party of Kurdistan (the KDPI); and so in that witness statement he went on to say:

"I do not think that the interpreter used by my previous representatives understood which party I was referring to and so made the mistake."

So he ascribed the previous reference to IDP to an interpreter's error.

5. Before Immigration Judge Phull the position in that respect seems to have moved on, in part because it appears that the original statement stated that it had been read back to him in his language, and Mr Pipe, who at that time was representing FJ, submitted to Immigration Judge Phull that "Although the appellant had got the party name wrong" [I quote from paragraph 12 of the immigration judge's decision in which the submissions of Mr Pipe are recorded] nevertheless the fact remained that it was not in dispute that FJ was "a Kurd from the Kurdish areas in Iran" and that if his explanations as a whole as to what had happened on that day of the demonstration and what followed were accepted, then the error over the initials of the party in question could be put down to an error made by a young man who was only sixteen at the time and, although it was an error and one that the judge had to take into account, it was not such as wholly to undermine his credibility. That was Mr Pipe's submission. The submission by Mrs Lippett, representing the Secretary of State, reported in paragraph 13 of the immigration judge's decision, was to the contrary: she submitted that credibility was a serious issue; that the appellant had been assisted by a Kurdish Irani interpreter when he had first signed his witness statement, and that the fact that he now claimed that there were errors in it should be held against him. Further material before Immigration Judge Phull was a letter from the KDPI relating to his father's activities, and also a letter from the headquarters of an Iranian state organisation called Eta'laat, which said that FJ, if he was found, should be arrested for being involved in the demonstration; and that letter before Immigration Judge Phull from Eta'laat was dated 14 April 2004.
6. So Immigration Judge Phull had before her the appellant's accounts with all its imperfections, such as the possibly serious, possibly critical question relating to the correct name of the party, but also his evidence as a whole as to the demonstration as to what had happened to his father, as to what had happened to him following that, and reliance was also made on the letter from the KDPI and the Iranian state organisation Eta'laat. And, ultimately, Immigration Judge Phull had to make up her mind about the credibility of FJ and she decided that he was credible. She said in paragraph 25 that she had considered all the evidence in the round and she accepted that FJ had made out his case to refugee status by reference to Article 3 of the Convention.
7. The Secretary of State sought to appeal from that on the basis of two grounds. The second one does not matter; it failed and was dismissed. We are concerned with the first one, and that was expressed to be a failure to give adequate reasons, ground A:

"It is submitted that the Immigration Judge has erred in failing to give adequate reasons for accepting the credibility of the appellant's evidence."

 And then it is said again further on that:

"It is submitted that the Immigration Judge fails to give adequate reasons as for why this discrepancy does not completely undermine the appellant's account."

And this discrepancy was the discrepancy of the names between IDP and KDPI. Reliance was not there in the grounds put upon the fact that, in his March 2007 witness statement, FJ had blamed the interpreter for the error in question.

8. Now when the matter came before SIJ McKee at the first stage reconsideration, SIJ McKee accepted that that ground of inadequate reasons was a question of law upon which the Secretary of State had made good its complaint, and SIJ McKee further accepted that there was an extra reason why IJ Phull's reasoning was at fault, and that was because the judge had ignored FJ's assertion in his March 2007 witness statement that the error over the name of the party had been that of the interpreter rather than himself. And so it was submitted to SIJ McKee and SIJ McKee accepted that "it was incumbent on her to say what she made of the fact that there were two contradictory explanations" for the discrepancy in question, and that this was a failure to deal with material evidence which itself constituted an error of law.
9. Now on this renewed application Mr Bedford, on behalf of FJ, takes essentially two grounds, one of which is covered in his formal grounds of appeal but both of which are covered in his skeleton arguments. The first ground is that the original ground of appeal before SIJ McKee on the first stage reconsideration, although expressed as a ground of law, namely inadequate reasons, was in truth an attack upon IJ Phull's findings of fact as to the ultimate question of whether FJ was credible or not in his evidence as a whole and that, as such, it was not a legitimate ground of appeal and that even if it got past that hurdle as nominally a legitimate ground of appeal, it was a ground of appeal which as a matter of law had not been made good, because, as a reasons attack on the decision, it failed. It was perfectly clear, submits Mr Bedford, what the essential reasoning of IJ Phull was. She accepted that the error over the party name had been made; she accepted that it was material which she could hold against FJ and as going to his credibility, which was the essential matter in issue, but nevertheless, taking his account of his evidence as a whole, she accepted him as a credible witness in his description of the demonstration and what happened to his father and what happened to him, and she also accepted the letter from KDPI and from Eta'laat as being genuine letters, and found in his favour; and, as for the error over the name, she said that that was indeed an error but it was one which she did not hold against him given his age of sixteen at the time of his original witness statement.
10. One can see, of course, that one could take a different view of these matters, ultimately on the second stage reconsideration. A different view was taken of these matters, and FJ's evidence was roundly disbelieved and the letters from the KDPI and Eta'laat were described as fabrications and the matter went entirely the other way. The question is, nevertheless, whether this first ground of appeal that Mr Bedford puts before us is one which has real prospects of success. In my judgment it does. I accept as a legitimate argument, with real prospects of success on appeal, that all IJ Phull had to do was to make a decision in the round about FJ's evidence. It may be that the Secretary of State sought to turn the discrepancies between IDP and KDPI into the essential issue in the case; but the argument is that IJ Phull was entitled to look at the matter more fully in the round, and on the basis of the evidence in the round to put down an error over the name, or discrepancies in evidence, as errors which were not to be ultimately held against FJ. I accept that there is a real argument that that was a matter which was within IJ Phull's complete control as a finding of fact and that it is clear enough from her decision that her process of reasoning was that, ultimately, she accepted the credibility of FJ and put down the IDP/KDPI discrepancy to that of a young man's error. Although that she accepted that it was an error, it was not one to be held against him. So I would give permission to appeal on that first ground.
11. Mr Bedford's second ground of appeal is, however, in my judgment, harder to get hold of. He submits that when SIJ McKee took on board the extra reason which was advanced at the hearing and which did not appear, admittedly, in the Secretary of State's grounds, namely that not only was there an error as to the correct name of any Kurdish opposition party, but also that FJ had himself made a witness statement ascribing the error to the interpreter rather than to himself, that this was an entirely new ground of appeal rather than, as SIJ McKee put it, an extra reason why the original ground of appeal which was that of inadequate reasoning could be supported. In my judgment there is not a real prospect of success in arguing that this was an entirely new ground of appeal which came illegitimately and/or unfairly against FJ at the first stage reconsideration hearing so that on that ground, too, there should be an appeal.
12. So, in my judgment, I would give permission to appeal on Mr Bedford's first ground. I would require him to ensure that that ground is transferred from his skeleton arguments formally into his grounds of appeal, and on that basis I would give permission to appeal.

Lord Justice Stanley Burnton:

13. I agree that permission to appeal be given on the first ground only, for the reasons my Lord has given.
14. I would add that this is, in my judgment, very much a case in which the position of the Secretary of State also is arguable at the hearing of this appeal, as indeed the decision taken by my Lord, Sedley LJ.

Order: Application granted in part