"Therefore, I accept that the appellant left Iran because he feared that his life was in danger as a consequence of him having carried on an affair with a married woman. However, even observing the lower standard of proof applicable in such cases, I conclude that the appellant has not demonstrated a well-founded fear of persecution for a Convention reason."
8.
He rejected the Applicant's evidence that the woman had been involved in
politics and that political leaflets had been discovered in his premises. The
Inspector concluded in relation to this:
"At A7 the appellant said that if he went back to Iran his life would be in danger. He said that this was mainly because the authorities were after him because he had a relationship with a married woman. He went on to say that it also because the authorities had found leaflets in his house and they therefore suspected him of political involvement. I do not accept that the authorities in Iran suspected him of involvement. I conclude that the appellant fled Iran simply because he was being pursued by an angry husband whose wife had had an affair with the appellant."
9.
He records the submissions made on his behalf at the bottom of page 6 of
his decision, saying that it had been submitted to him that the appellant
feared persecution for four reasons:
"(a) His relationship with the woman in question. In Iran there are very strict rules against a married woman committing adultery. Those who indulge, know the consequences. However, that does not amount to persecution for a Convention reason.
10.
He then dealt with the alleged conversion to Christianity, a matter which
the Appellant had raised after the Secretary of State refused his application.
The Secretary of State took the view, and the Adjudicator agreed, that the
conversion to Christianity was a bogus conversion asserted for the purpose of
bolstering the claim for asylum. That finding has not been and could not be
impugned before me.
11.
The Applicant then appealed against that decision to the Immigration
Appeal Tribunal. In his Notice of Appeal, he asserted that the findings of the
Adjudicator that he had left because he thought his life was in danger as a
result of his adulterous relationship meant that he would be persecuted in
being subjected to inhuman or degrading punishment by reason of having
committed adultery.
12.
It was asserted that he was a member of a particular social group within
the meaning of the Convention, namely, I suppose, adulterers, or since it was
established that the penalties for fornication were much the same as those for
adultery, a social group of fornicators. It was also claimed that the
Adjudicator was wrong to reject his assertion that the woman in question was a
political activist.
13.
The Immigration Appeal Tribunal refused leave to appeal on 31st January
1995 in what might be described as the usual form. There was no attempt at
judicial review of that decision; rather the Applicant sought to persuade the
Secretary of State to reconsider the matter, and he did so by a letter from his
present solicitors who had taken over from those who had represented him before
the appellate authorities.
14. His
solicitors asked the Secretary of State to reconsider the matter on two
grounds: first, that the Tribunal had not really considered the question in
relation to social groups, that is, ground one of the appeal which I have
already read out and, secondly, he was asked to consider the matter in relation
to the application, in particular, of Article 3 of the European Convention on
Human Rights. It was said that the Adjudicator had accepted that the Appellant
had left Iran because he feared his life was in danger as a consequence of his
having carried on an affair with a married woman, and it was said that the
Adjudicator had therefore accepted that he would face persecution. But that is
not in fact a fair reading of the Adjudicator's decision. What the Adjudicator
had said was, that he was simply escaping an angry husband who was liable to do
him no good, and that was not persecution within the meaning of the Convention.
15.
Undoubtedly, what the solicitors were seeking to argue that the
possibility of being subjected to criminal proceedings in relation to the
fornication or the adultery and of suffering the penalties that might result
therefrom were capable of constituting a breach of Article 3 of the European
Convention on Human Rights and this was a factor which the Secretary of State
should take into account in deciding whether, notwithstanding the rejection of
the asylum claim, this was a case in which he should grant exceptional leave to
remain.
"You state that the Adjudicator, in his findings, accepted that your client left Iran because he feared that his life was in danger as a result of his affair with a married woman. However, the Adjudicator went on to say that he believed that your client's life was in danger, but from the husband of the married woman, and he concluded that your client had not demonstrated a well-founded fear of persecution for a Convention reason.
17.
The author of that letter did not grapple with the point that was, if not
expressed, at least implied in the letter of 21st February, namely regard
should be had to the European Convention on Human Rights with a view to a
possible decision that there should be exceptional leave to remain.
"We would be grateful if you would address the matters that we raised in our letter of 21 February."
19. First,
the social group point and, secondly, would the Secretary of State please
explain why he was satisfied that the removal of the applicant would not
contravene Articles 2 and 3 of the Convention on Human Rights? Article 2 is the
right to life which falls away because it is now common ground that the
Applicant would not have faced any capital penalty, although there is still an
argument put forward by Miss Harrison that the husband's death threats
themselves, if carried out, would amount to persecution within the Convention.
20.
The solicitors in a letter on 14th December added to the matters they had
raised. They referred to the penalties for adultery, namely flogging and said:
"We would argue that such punishment is meted out as a response to the perception by the Iranian regime that our client holds views which are contrary to the mores of an Islamic State. In these circumstances where the State enforces a religious code of conduct and religious laws our client's persecution could be described as either on account of his failure to abide by those religious laws or on account of his perceived political opinion being one that is opposed to the religious law of the State. These would therefore constitute Convention grounds for persecution."
21.
One sees the argument, but one is bound to say that although ingenious it
carries little weight. All criminal laws, in any state, reflect to a degree
the moves of the society of that state. Of course, there are some matters
which are, I suppose, categorised as offences and which would be considered to
be
malum
in se
,
if one wants to use the approach of English law, in that every society that one
can reasonably think of would treat them as being criminal, such as, for
example, theft, murder, or serious violence being done to the person.
22.
There are many other offences which cannot be so categorised. In
particular, sexual offences fall into a special category. Some societies are
much freer than others in deciding what sort of sexual conduct ought to fall
foul of the criminal law. It seems to me that to suggest that a law breaker is
to be regarded as someone who, on that account alone, is discriminated against
on the basis of being someone who on political grounds objects to the laws in
question is, to twist the realities of the situation quite beyond any
recognition.
23.
As Mr Kovats submitted in argument, it seems to me that in reality the
punishment of adultery is in principle no different to the punishment of theft.
The reality is that the objection here is to the nature of the punishment,
which is said to be altogether too severe for the offence which is committed
and to be so severe as to be outside the scope of any reasonable system.
Indeed, it would contravene the European Convention on Human Rights.
"In responding to our representations we would therefore request that you would clarify whether you accept the Adjudicator's finding that our client fled Iran in fear of persecution [with respect that was not the finding] and if so, whether you would accept that he had objective grounds for hold such a fear. Further, if you do not agree with our contention that our client's fear of persecution would constitute persecution on Convention grounds we would be grateful if you would explain why you reach this conclusion and, as already requested, why you are satisfied that our client's removal would not contravene articles 2 and 3 of the ECHR."
25.
On 14th March, and this is the letter which forms the decision against
which this application for judicial review is brought, the Secretary of State
said this, having referred to the various letters:-
"The Secretary of State does not accept that, the Adjudicator concluded that
26. Then
the letter goes on to justify that and indeed it is quite clearly right. The
letter goes on:
"In addition, as was made clear by our original refusal letter of 8 February 1994 we considered and continue to consider the episode of the relationship and the raid on the house is implausible and consider the relationship had been fabricated to substantiate the asylum application. In sum we do not believe the claim. In this connection the Adjudicator at page 5 of the determination does not accept Mr Danaei as a credible witness.
27. The
letter goes on to deal with the Christianity claim and rejects it. It deals
with another matter which is not material, and then concludes:
"Having considered the representations made I must advise you that the Secretary of State can find no reason why Mr Danaei should be recognised as a refugee here. In all the circumstances of this case there is no reason to allow him to remain exceptionally, outside the Immigration Rules, and action to remove Mr Danaei will continue."
28.
That last sentence is the only reference in the letter to exceptional
leave and the letter does not in terms or at all refer to the European
Convention on Human Rights or the point that was made about it, of course, for
very good reason, because on the approach of the Secretary of State in that
letter, that simply did not arise. He continued to maintain his original
views, that the Applicant had made up the account that he had given and the
adultery had never happened. If it had, certainly there had been no question
of any irate husband, he had no fears on that score and for whatever reason
(the Secretary of State does not spell out any reason) he had decided to leave
Iran and come to this country. The reason found by the Adjudicator, namely
that these events had happened was, on the face of it, a perfectly good motive
for the Applicant to have left Iran when he did and to have come to this country.
29. It
is perfectly true that the Secretary of State is not in any way bound to
suggest any motive, but the fact is he has not identified any motive which goes
to explain why the Applicant came when he did.
30.
The Home Office case has been supplemented to some extent by an affidavit
put in by a Mr Canning, who is a senior executive officer responsible for the
part of the Asylum Directorate which considers applications from Iran, so one
would expect him to have some general overall knowledge of the position in Iran
and the approach of the authorities there to persons such as this Applicant,
assuming he had involved himself in adulterous liaisons.
"The Respondent maintains that the Applicant's account of an adulterous affair, his pursuit by the woman's husband and the Iranian authorities and the finding of alcohol and pornographic films in his apartment is a fabrication. The Respondent relies on the following matters:
"As stated in the refusal letter of 8 March 1994, the Respondent considers it extremely improbable that this would have been the position as the child would have been able to tell her father about the Applicant."
"5. The Special Adjudicator noted the Applicant's evidence that, when the child was in the Applicant's house, he and the woman did not indulge in sexual intercourse. But, with respect, this does not meet the point that the child would have been able to tell her father that her mother was regularly staying overnight at the house of a strange man. The Secretary of State does not consider it credible that the woman would have taken such a rink. I am informed by the Foreign and Commonwealth Office and believe, that in Iran, regardless of any intent to commit adultery, the very fact that a woman may be identified as being in the company of a man to whom she was not related, without a chaperone, would be likely to cause great stigma and adverse attention.
"8. The Respondent acknowledges that the Applicant did not claim to have first hand knowledge that the woman was stoned, merely that this was what he was told. But the Respondent considers that the absence of any report of the public stoning of the woman identified by the Applicant casts further doubt on his story."
"Regardless of the truth of the adultery story, the Respondent does not accept that it is open to the Applicant now to claim asylum on this basis."
36.
That is to say on the basis of adultery. He says that this was raised in
his original asylum claim and he has not made a fresh asylum claim within the
meaning of the decision of the Court of Appeal in Onibiyo (1996) 2 WLR 490.
37.
It is apparent, therefore, that the Secretary of State has approached this
case on the basis that he does not accept the Adjudicator's findings of fact.
He gives reasons for rejecting them, but the reasons are essentially the same
as the reasons given in his original letter of March 1994.
38.
He has made one or two further inquiries. In paragraph 4 he indicates
material which suggests that it really was a considerable risk, quite
independent of the presence of the child, for the two to commit adultery with
the woman coming to his house. No doubt it was, but this would not be the
first occasion when two human beings had formed a sexual relationship in
circumstances where they were taking enormous risks and it may be that the
ultimate sanction here, namely death for the woman and a hundred lashes for
him, was a risk that was greater than is usually apparent to those who choose
to commit adultery. But it is not unknown for the risk to be taken despite
the fear of death from an irate husband. It does not seem to me that the risk
in itself is necessarily a good reason for doubting that it happened.
39.
That is really the only reason that is left, because the Secretary of
State accepts that jumping from the roof and the heel injury were not
necessarily to be held against the Applicant.
40.
As it seems to me, despite the gallant attempts by Mr Kovats to argue to
the contrary, in effect, the Secretary of State has no additional material to
rely upon and is simply repeating his objections to the account given by the
Applicant. His reasons were not sufficient to persuade the Adjudicator. The
Adjudicator, of course, did hear and see the Applicant give evidence. One must
not make too much of that. Indeed, Mr Kovats in considering in some detail the
relevant findings of the Adjudicator, points out that they do not appear in the
main to depend upon the credibility, and so do not depend upon any advantage
the Adjudicator may have had in seeing and hearing the witness. On the other
hand, what the Adjudicator was doing was to decide whether in these particular
matters the Applicant was telling the truth, and in order to decide that,
inevitably the Adjudicator would have been influenced by the evidence given by
the Applicant. He does not, in terms, spell it out, but it is impossible to
conclude other than that he was inevitably influenced by it.
41.
The Secretary of State of course has not had that advantage and is
dependant upon his own inquiries and upon the interview that was held and, no
doubt, the reports of the interviewing officers as to their views of the
Applicant.
42.
What is said on behalf of the Applicant is that the Secretary of State was
not entitled to reject the findings of fact reached by the Adjudicator. The
Adjudicator's role is set out in the Immigration Act 1971 as applied to the
Asylum and Immigration Appeals Act 1993. The appeal itself was under section
8(1) of the 1993 Act which read:
"A person who is refused leave to enter the United Kingdom under the 1971 Act may appeal against the refusal to a special adjudicator on the ground that his removal in consequence of the refusal would be contrary to the United Kingdom's obligations under the Convention."
44.
Schedule 2 to the 1993 Act, under paragraph 4 applies the procedures in
sections 18 to 23 of the 1971 Act which are the sections that deal with appeals.
"Subject to section 13(4) and 16(4) above, [which have no application] and to any restriction on the grounds of appeal, an adjudicator on an appeal to him under this Part of this Act-
"For the purposes of subsection (1)(a) above the adjudicator may review any determination of the question of fact on which the decision or action was based."
47.
The appeal in this case being under section 8, the Adjudicator had to
consider the facts and to review the Secretary of State's determination on a
question of fact in order to decide whether or not the Applicant was entitled
to asylum. As Mr Kovats rightly points out, he was not considering the facts
with a view to determining whether there was or should be an exceptional leave
granted. He did so consider the facts for that purpose and he made the
findings of fact which I have already referred to.
48.
Mr Kovats says that those findings were unnecessary in the result because
he decided that there was no claim to asylum even on the basis that the
Applicant was correct in his account of the adulterous association and the
circumstances leading to his decision to leave Iran. So the Adjudicator only
needed to say, 'I do not need to decide the question, I shall assume in the
Applicant's favour, but even assuming in his favour his claim fails'.
Accordingly, those findings of fact were not necessary to the decision and,
therefore, they cannot bind the Secretary of State in any way.
49.
Indeed, even findings of fact necessary to the decision do not themselves
bind the Secretary of State: it is the decision which binds him, because that
is what the Act says.
50.
As a matter of reality and common sense one would have thought that, if a
finding of fact was an essential prerequisite to a decision, it would be very
difficult for the Secretary of State to reject that finding of fact and,
nonetheless, accept that the decision was binding upon him, but that is not
this case and I do not need to go into any detailed consideration on that.
51.
Mr Kovats submits, and I accept, that for the purpose of his decision
whether there should be exceptional leave to remain, the Secretary of State is
not bound by the findings in this case made by the Adjudicator. What he has to
do is to have regard to them, but as it seem to me, he must, if he is to
disagree with them, have some material beyond only that which he put before the
Adjudicator. The scheme of the 1971 Act is to provide for the Adjudicator to
be able to review the Secretary of State's decisions on fact in order to reach
his decision. If the Secretary of State were without more to be able to
disregard those findings of fact for the purpose of any subsequent action then,
as it seems to me proper effect would not be given to, the role of the
Adjudicator. One can well understand that the Secretary of State may say "it
is not right that I should be bound by findings of fact when I have had no
opportunity to subject them to appeal because the decision has been favourable
to me". That, as it seems to me, is a matter to which the Secretary of State
can properly have regard in an appropriate case. Here it is not suggested that
the findings made by the Adjudicator were themselves in any way irrational or
unlawful; they were findings which could properly be reached upon the material
that the Adjudicator was considering. The Secretary of State did not agree
with them, but that was all.
52.
In those circumstances, there was no good reason to reject them. Of
course, the Secretary of State may have further material which he can take into
consideration and, that may itself provide a reason not to accept the
Adjudicator's findings, but there was no such fresh material in this case.
53.
Similarly, I have been referred to decisions such as
Momin
Ali
where the question was whether the Secretary of State was entitled to treat the
Applicant as an illegal entrant notwithstanding that the Adjudicator's decision
had resulted in him being given leave to remain in the country. The issue in
the
Momin
Ali
case which is reported in 1984 Imm.AR 23 was one of personation, and what the
court there decided was that there was no question of issue estoppel arising
from the Adjudicator's decision, but that having regard to the burden upon the
Secretary of State, it being an illegal entrant case, it was not right for him
to fail to have regard and to put great weight upon the Adjudicator's findings.
It was only effectively if subsequent material established that fraud had
produced the wrong result before the Adjudicator that the Secretary of State
should, in effect, overturn that decision.
54. Mr
Justice Brooke of 22nd April 1996, CO-3774-94 the Special Adjudicator had made
findings in relation to the situation in Colombo. That, as it seems to me, is
a matter of objective fact and to a degree it may involve questions of
forecasting what is going to happen in relation to a particular country.
55.
Those are issues upon which the Secretary of State is always likely to
have extra material which might not have been before a particular adjudicator,
and more importantly, the situation in relation to the state of affairs in a
country is something which is fluid and may change from time to time. It seems
to me, that in cases such as that, it is really only common sense that the
Secretary of State may well be able to say that the material before him is
sufficient to persuade him that the particular findings of a particular
adjudicator are not acceptable.
56.
Indeed, one has had, as one knows, a similar sort of problem in that there
have been a number of decisions of Adjudicators which are inconsistent in
relation to the safety of Third Countries to which removal is sought. I think
that that state of affairs has in the past arisen in connection with France
and, indeed, other countries of the European Union. It would be absurd to
suggest that the Secretary of State was bound by the findings of one
adjudicator rather than another, or one adjudicator in respect of one case and
of another adjudicator reaching opposite conclusions in another case.
57.
In this case, the findings relate to the credibility of a particular
individual in relation to what has happened to him, and it seems to me that
different considerations apply. In my view, the Secretary of State is not
entitled to reject those findings unless he has additional material or can show
that some matter was not put before the Adjudicator or that the Adjudicator was
deceived into reaching the decision that he did reach. None of that material
exists in this case.
58.
Mr Kovats submits that as a matter of law all that I can do is to consider
whether the reasons given by the Secretary of State are irrational. In my
judgment, they are where he has not given the proper weight to the decision of
the Adjudicator. In the context of this case, having regard to the absence of
any extra material, the weight that he ought to have given to those findings
was predominant because he should have accepted the findings that were made.
59.
In those circumstances, as it seems to me, the approach of the Secretary
of State was wrong. It is common ground that he has not, given reasons for
rejecting that construction that the Applicant should be given exceptional
leave to remain on the basis of the claim under the European Convention on
Human Rights because he should follow the Adjudictor's findings.
60.
Decisions of the European Court of Human Rights in connection with Article
3, prima facie indicate that the punishment of flogging for the offence of
fornication or adultery is prohibited by Article 3 of the European Convention
on Human Rights.
61.
It may well be that the Secretary of State would be entitled to form the
view on the facts of this case that this Applicant did not face the likelihood
of such punishment, notwithstanding the acceptance of his general story. I am
by no means saying that the Secretary of State is in any way bound to reach a
different conclusion from that which he in fact reached. All that I do say is
that he ought to give reasons for rejecting the claim in the light of the
Adjudicator's findings. It cannot be said, and
62. Mr
Kovats rightly concedes, that he would inevitably have reached the same
decision had he approached it in the way that in my judgment, he ought to have
done.
64.
The argument that the applicant is also entitled to seek asylum has I
think already been dealt with when I was considering the letters at an earlier
stage of this judgment. Suffice it to say, in my view, the argument that this
Applicant can be said to be within the Convention because he may suffer at the
hands of an irate husband whose actions may well not be prevented by the State
or may even be encouraged by the State, is an argument which has no basis in
fact or in law. The argument that he is a member of a social group persecuted
by virtue of committing adultery or fornication is again, in my view, for the
reasons I gave earlier an argument which has no validity.
65.
Accordingly, the Adjudicator's decision on that was correct, and I
entirely agree with the Secretary of State that there has been no fresh
application in the circumstances of this case. Accordingly, that aspect of the
claim fails. However, the result is that I must find in favour of the
Applicant and quash the decision.
66.
I am not sure it is a question of quashing it is it, Mr Kovats? It is not
the sort of decision that needs to be quashed. It is merely a declaration that
the decision reflected in that letter of 14th March is one that cannot stand.
The form perhaps matters not, as I think it may be a purist approach, but I
think that this sort of decision is perhaps not one which really matters,
because the Secretary of State will obviously reconsider the matter in the
light of my judgment unless you persuade the Court of Appeal to the contrary.
67. MR
KOVATS: My Lord, can I just raise two short points. Your Lordship said in your
judgment that it was common ground that the Secretary of State had not
considered the Article 3 point on the basis of the Special Adjudicator's
findings. That, I suspect, was me not being clear. My Lord, what I was
seeking to say was the Secretary of State has not put before the Court any
reasons as to his view on this point and I was not seeking to accept that the
Secretary of State had not turned his mind----
68. MR
JUSTICE COLLINS: I am sorry, Mr Kovats, you did tell me that, I got that wrong.
I will make that point. It does not make any difference to the result.
69. MR
KOVATS: The second is to ask your Lordship for leave to appeal. I have two
reasons for that: firstly, I mentioned to your Lordship the case of
Elasogu
in which the Court of Appeal were likely to give a judgment which may be
somewhat different to your Lordship's.
70. MR
JUSTICE COLLINS: No, I do not think -- perhaps I should have mentioned that,
but I do not think
Elasogu
is
anything near the facts, but I suppose they may make some general observations.
71. MR
KOVATS: My Lord, it was certainly Mr Riza's principal submission that the
Secretary of State was dealing with the matter on the identical material that
was put before the Special Adjudicator in relation to a matter of historic
fact, and to that extent the two cases are similar.
72.
My Lord, the second reason for seeking leave to appeal is the reiteration
of the submissions which your Lordship has rejected. I do not repeat them, but
what I do say is that notwithstanding your Lordship's careful judgment, to make
it clear what your Lordship is not (?) deciding, it is nevertheless a case
which is likely to be deployed in other cases and have repercussions in other
cases.
73. MR
JUSTICE COLLINS: I follow that, Mr Kovats, but I hope I made clear, and
certainly on rereading the transcript for the purpose of correction will
endeavour to ensure that I have made clear, that as far as my decision is
concerned, it is limited to the facts of this case. I am not indicating and
would not want to seek to indicate that the decision can go beyond a case where
the finding relates to an individual, his account of what happened to him and
his credibility. Others may argue in another case that the matter can be taken
further, that is the nature of an incremental advancement of the law; is it
not? This case is limited to the facts of this particular case?
75. MISS
HARRISON: My Lord, in respect of the first point as to the decision of the
Court of Appeal, I do really reiterate what your Lordship has said, it is on
different facts and, in any event, the Secretary of State is asking you to make
a decision on a case that we do not know what the outcome is going to be, he
has given an indication what he thinks it is going to be, but, in my
submission, it would be wrong for you to be swayed by his belief as to what may
be the case, and in any event----
78. MR
KOVATS: I think it is immanent. My clerk went down to the Court of Appeal
Office to collect it yesterday, and for some reason it was not ready.
83.
MR JUSTICE COLLINS: The point you are making is, if it comes down with
observations in your favour you have no difficulty in getting leave if I were
to refuse. On the other hand, if it comes down in my favour, then I suppose
you would not take advantage of leave anyway, so perhaps it is as broad as it
is long.
84. MISS
HARRISON: The point remains that it is a distinguishable case, and in terms of
the argument relating to objective evidence and documentary evidence that has
already been considered by Mr Justice Brooke in
Elcansa,
where he said, it is not binding for the reasons that your Lordship has said in
the judgment, because of it being a moving target and the Secretary of State
having other sources of material, so, in effect, that is a decision that has
already been considered by the High Court and the Court of Appeal. If it makes
a decision against the applicant in that case, it will only be consistent with
what the law already is, whereas this is, as your Lordship indicated, a
separate and distinct point, I say that it is a clear point and does not
require the Court of Appeal to reconsider it.
85. MR
JUSTICE COLLINS: This is the first case that the court has decided that the
Secretary of State is to be bound by a decision on fact of an adjudicator in
this sort of connection.
86. MISS
HARRISON: My Lord, that is right and when your Lordship asked whether there
were other cases from other jurisdictions I certainly tried to find out whether
that was the case as part of my argument, but I could not.
87. I
do not underestimate that there is significance in your Lordship's decision,
but clearly it is a matter for your Lordship. In my submission, it is not
necessary for the Court of Appeal to hear this case or, it has its own ability
to make a decision whether it thinks it is important to hear it itself and that
is the correct route.
88. MR
JUSTICE COLLINS: One is in two minds, I do not want to overburden the Court of
Appeal. On the other hand, I am well aware that as far as the Home Office are
concerned, they will not, at least I hope they will not, take appeals unless
they really are satisfied it was necessary to do so. It is a factor I can take
into account. I do see this has potential importance for the Secretary of
State and, in those circumstances, I am prepared to grant you leave, Mr Kovats
to avoid the unnecessary cost of applying. That does not mean you will go
ahead, but you can have leave. That leave is not meant to be an encouragement
or to be any indication that I have in anyway got it wrong or may have it
wrong, but nevertheless you are entitled to leave.
89. MISS
HARRISON: My Lord, my remaining application is for legal aid taxation of the
Applicant's costs to be paid by the Respondent.
91. MR
KOVATS: My Lord, I was going to have a go on the basis that there were two
issues in this application and the Applicant has failed on one, which was
whether there was a fresh claim for asylum. My Lord, that was not a trivial
issue, that was an important part of this case.
92. MR
JUSTICE COLLINS: You know as well as I do, that the normal rule is that if you
loss you pay, it does not matter if you lose on everything.
93. MR
KOVATS: My Lord, there are a number of cases where the court have made orders,
if you wish----
94. MR
JUSTICE COLLINS: I could do it, those are usually where a lot of time has been
taken up with one issue which has resulted in failure. No, I do not think so,
I am afraid. You must pay the costs. What do you require in the order, the
associate would like you to tell him so he can put it in the order.
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