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/10147/2008]

		Royal Courts of Justice Strand, London, WC2A 2LL
		4th December 2009

Lord Justice Sedley:

1. The applicant, who is represented today by Mr Christopher Jacobs, reached the United Kingdom from Iran via France where he had failed to seek asylum and had been untruthful about his identity. These facts were among those which were held adverse to his credibility by the Immigration Judge, in reliance on Section 8, but in reality (and as usual) irrespective of this dubiously constitutional fetter on the judicial fact-finding function of the AIT.
2. Pausing there, at paragraph 40 the Immigration Judge records the explanation given by the applicant for his failure to claim asylum in France, which was that he had been told that France would refuse him asylum and would send him back to Iran. He contents himself with saying:

"I see no reason why the Appellant could not claim asylum at that time in a civilised country that has long been a signatory to and an adherent to the Refugee Convention"

That may be a not very satisfactory way of dealing in what may have been genuinely in the appellant's mind and have been an explanation for his conduct. But I pass on because it is not the central issue.

3. The central issue is the process of deconstruction by which the Immigration Judge came to reject pretty well the whole of the applicant's account of his accidental involvement, as he insists it was, in the death of an officer of the Iranian State Security Organisation; an involvement which the Immigration Judge accepted would, if it was true, have gone a long way to establishing his asylum claim.
4. A further reason for disbelieving the account was that the applicant had at the hearing elaborated his story to include a visit to his home by the security authorities. The Immigration Judge at paragraph 41 evidently, though not explicitly, rejected the applicant's explanation of why he had not mentioned it before, an explanation which one finds recorded without evaluation at paragraph 30.
5. The essence of the account was that after his father's death at the hands and in the hands of Ettela'at, the notorious Iranian state security apparatus, an officer of that organisation named Reza had begun pestering the applicant's mother, in effect for sex, by pressing her to enter into a form of temporary marriage known as sigheh, devised by the mullahs to get round the Sharia prohibition on adultery. The Immigration Judge at paragraph 43 found it "most unlikely that such an arrangement would have been entered into by a member of an organisation such as Ettela'at" with the widow of a dissident.
6. For my part I would not have thought it at all unlikely in a sexually and politically repressive society like Iran that such a thing would happen, but, while that may be a matter for the Immigration Judge and not for this court, I do think that there is a real concern that he has here asked himself the wrong question: not whether it is in general likely that such a thing would occur but whether it is reasonably possible that in the case of the applicant's mother it did occur. These are radically different things.
7. This, however, was a secondary ground of disbelief. The primary ground, to be found at paragraph 42, is that the applicant could not describe the political beliefs or activities which had got his father detained and killed. The result was that the Immigration Judge refused to accept that the applicant's father had been killed by the security service.
8. It seems to me that both the premise and the conclusion are arguably suspect. The history of state repression in many countries of the world has thrown up endless instances of dissidents who have tried to protect their families as well as themselves by telling their families nothing about their activities or even their beliefs. I do respectfully wonder whether the Immigration Judge's finding that the father's secrecy was "inherently unlikely" is not actually perverse. Whether it is or not, however, I do not at present see how it follows that the account of the father's death in custody should not be believed.
9. But none of these by itself was the ground for reconsideration. The ground for reconsideration which is the immediate prelude to this application was a single error, serious in itself but debatable in its ramifications, which led the Immigration Judge to suppose that Ettela'at was distinct from the Ministry of Intelligence and Security, which according to undisputed in-country evidence is an organisation which operates outside and above the law and kills freely. The Senior Immigration Judge on reconsideration at the first stage held that this error, while real, had no effect on the determination itself. Accordingly the reconsideration did not proceed to a second stage at which everything would have been for redetermination.
10. Mr Jacobs submits that, but for this error, the Immigration Judge would not have found it unlikely that someone like Reza would enter into a temporary marriage with the widow of a dissident. This is not an easy submission to make. For an official to force his sexual attentions on a vulnerable single woman, which is a perfectly credible scenario, state immunity is not needed. The sigheh marriage provides all the cover, in even a strict Islamic society, that is needed.
11. But in a case which, if it is a truthful case, is a matter of life and death (and I do not think there should be any question about this because there is little prospect that a person who is implicated by his own admission in the death of a security agent will get a fair trial or indeed any trial at all in Iran) it does I think behove the court to be especially vigilant. It is just arguable, it seems to me -- I put it no higher -- that had the Immigration Judge appreciated that the man Reza was indeed a member of the lawless security apparatus, he might have been readier to accept that such a person, knowing the fate of the woman's husband at the hands of his organisation, would force himself on her, eventually creating the situation in which he came by his death.
12. While the adverse credibility findings which I have mentioned no doubt stand against this, though there was a tenable explanation of at least some of them, it may be necessary if this point is reached, for the court to go back and look at the quality of these findings. If that point is reached for the reasons I have given earlier the quality of a good many of them appears to me to be unquestionable.
13. I remind myself that what was at issue before the Immigration Judge was not whether the applicant should be granted asylum but simply whether the reconsideration needed to go to a second stage at which the full merits would be recanvassed. This, as well as the considerations I have touched on, seems to me to give the proposed appeal a sufficient prospect of success to merit the grant of permission, which I accordingly give. It may be, however, that in the light of what I have said the Home Office will agree that remission for continued reconsideration is the right course.

Order: Application granted