England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
[AIT No. AA/11050/2009]

		Royal Courts of Justice Strand, London, WC2A 2LL
		12th January 2011

Lord Justice Elias:

1. This is a renewed application for permission to appeal. The applicant is a 59-year-old Iranian woman. She claims that her removal from the United Kingdom would infringe her rights under the Refugee Convention and also under the European Convention on Human Rights. She said she would face a real risk of persecution if she were now to be returned to Iran because of her political opinion.
2. The case was heard by Designated Immigration Judge Dearden on 13 April 2010. The appellant at that stage was not represented. However, she had been to solicitors and they had made applications both at the end of March and again shortly before the hearing that there should be an adjournment in order for them to obtain necessary documentation, but in particular because they were concerned that the applicant was not well. They found from their own dealings with her, and this was confirmed by others, that she was confused and had poor short-term memory, and they sent in fact a very detailed letter requesting an adjournment. They indicated that they wished to obtain a report from a neurologist.
3. The judge refused the application and did so again when the application was renewed on the day of the hearing itself. One reason for that was that the applicant had known for some four months or so that the hearing was to take place in April, and the immigration judge observed that she could have obtained a report from the neurologist or at least set matters in chain to get such a report in time for the hearing. He said that no appointment had ever been fixed, and he was sceptical in any event as to what a neurologist's report might provide.
4. The first ground of appeal is that, in the circumstances, there was an error of law for the immigration judge not to adjourn. In support of that ground Ms Khan, acting for the applicant, has produced a letter from a consultant neurologist which in fact indicated that the applicant did have a neurology appointment, which in fact was on 22 March 2010; that is, before the hearing before the immigration judge; but, for reasons which are not clear, she did not attend the appointment, and indeed a further appointment had been fixed for some time in June.
5. The immigration judge then went on to consider the merits of the case and made certain findings as to credibility. One of the issues relied upon by the applicant was that she had two sons and a daughter and she maintained that they had all been granted asylum in Germany because of their political activities, and part of her case was that this made her position far more precarious if she were to return to Iran.
6. The immigration judge noted that there was no documentary evidence about this and he also found that the applicant's own description of her trips to Germany were very vague. He was not prepared to accept the unsubstantiated testimony of the applicant on this point. In fact, the applicant had initially been advised by some pro bono representatives. They had in their possession a document that had been sent from the German courts which had never been translated until after the hearing before the immigration judge but which did demonstrate that the daughter, and at least the older son, had been granted asylum in Germany. It is right to say that the immigration judge focussed not only on that feature of the evidence, but also made other findings which, all taken together, caused him to doubt the credibility of the applicant's evidence.
7. Ms Khan submits that there is here a material error of fact which is fundamental and can constitute an error of law. A key element in this submission is that the Court of Appeal has held, in a case FP (Iran) v SSHD  [2007] EWCA Civ 13, that there is no general principle of law that a party must be fixed with the procedural errors of the representative. She submits that here it was highly unfortunate that the relevant material was not put before the immigration judge, but that was not the fault of the applicant, and in the circumstances it would be wrong that she should be prejudiced. Had that information been before the judge then it would necessarily have caused him to take a different view about some of her evidence at least, and that in turn might have affected the overall assessment of credibility.
8. I am satisfied that there is enough here for this case to go forward to a full appeal. The second ground in particular seems to me to be clearly arguable. I have looked carefully at the immigration judge's determination. It is right to say that, as I have indicated, there are a number of reasons why he doubts the credibility of this applicant, but I cannot say that he would necessary have come to the same view had he believed the applicant's statement that her children had obtained asylum in Germany, and it is possible that that fact could make her position worse if she were to be returned to Iran.
9. The issue of adjournment is a more difficult argument, it seems to me. The judge reached a finding on the material before him, and the applicant herself was present and could have informed the judge that there had been an appointment fixed for her to see a neurologist and she might have explained why she did not go there. However, her failure to do so could be because of her state of mind at the time and her own confusion; so I am not prepared at this stage to prevent that ground being pursued as well. I am not sure it adds very much to the second ground in truth; but for these reasons, very briefly explained, I am satisfied that this is a case which in fairness ought to go forward for a full hearing.
10. I think it would take half a day.

Order: Application allowed