England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		25 March 2003

1. SIR RICHARD TUCKER: I have before me an application for judicial review. Permission to move was granted by Goldring J following an oral hearing on 26 November last. Goldring J ordered that permission be granted limited to the Article 8 ground only. Miss Finch, who appears for the claimant, has not sought leave to extend that ground. Therefore, it is on that narrow ground only that I proceed to deal with the application.
2. The objection to it is two fold. First, that the ground under Article 8 of the European Convention on Human Rights was not one which was expressly or independently raised before the adjudicator or taken in grounds of appeal to the tribunal and, therefore, the tribunal cannot be faulted for having refused leave to appeal.
3. Moreover, reliance is placed on the decision in the recent case of Ahsan Ullah v the Special Adjudicator and the linked case of Thi Lien Do v Secretary of State for the Home Department. Those were cases which were decided by the Court of Appeal on 16 December 2002, subsequent therefore to the grant of permission by Goldring J in the present case.
4. The application is to challenge the decision of the tribunal in refusing leave to appeal from the determination of the adjudicator. Having regard to the issues which have been raised, I examined with some care the history of the matter and the way in which it came before the adjudicator. I look, first of all, at the rules which govern appeals to the tribunal and, in particular, Rule 18 paragraph 6, which provides:

"The Tribunal shall not be required to consider any grounds other than those included in that application"--

meaning the application for permission to appeal to the tribunal itself.

5. Going back to the beginning, I look at paragraph 39 of the bundle before me at the grounds and notice of appeal from the refusal of the Secretary of State to grant asylum to the special adjudicator. At paragraph 4(b), I find these words:

"That if I am returned to Iran, I will face treatment contrary to the ECHR."

6. It should be observed that the basis of the application to the Secretary of State and the succeeding appeal to the Adjudicator and the application to the tribunal, were that the claimant is a practising homosexual. He is a citizen of Iran. He is now aged 24, and he asserts that if he is returned to Iran he will face persecution because of his sexual preferences. That was how he put it in a notice of appeal to the adjudicator.
7. That was followed by a witness statement which was in time placed before the adjudicator. On the final page of that statement, he says this:

"If I had stayed in Iran I believe I would have been executed by stoning. Sexual intercourse between people of the same sex is a criminal offence and an offence against Islam."

8. There are references to the fact that previously two men had been put to death on that account. He continues:

"If I am returned home I would not be recognised as human - homosexual practice is considered disgraceful and totally unacceptable in our Islamic community."

9. The claimant is there referring in his witness statement to his fears as to what will happen to him if he were returned. He nowhere suggests in that statement that he had been harassed or in any way prevented from indulging in his sexual preferences while he was in Iran. It was the future rather than the past which gave him cause to fear and complain.
10. Next I look at a subsequent statement dated 2 August 2001 which appears at pages 53, 54 and 55 of the bundle. The claimant adopts the information given in his former statement but he adds this at the foot of the second page:

"I fear certain persecution if I am forced to return to Iran. The nature of the case against me and my status as a homosexual means that my life will be in danger."

11. There again he is referring to the future rather than the past. He continues:

"My human rights would be violated if am forced to return there in respect of Article 2.3 and Article 8 of the ECHR."

12. There comes the first reference to Article 8. As the matter develops, it will be seen that that point was not raised independently of the main basis of the claim, but in the words of Mr McCullough for the defendants was a make weight. The claim in my mind clearly depended on matters other than that.
13. Next I look at the account given to the adjudicator on appeal to him. That can be taken up at page 15 of the bundle before me, where at paragraph 14 of his determination the adjudicator says:

"If you went back to Iran today or tomorrow, what do you think would happen to you?" "I think that I would be prosecuted and killed." "Why do you think that you would be killed?" "Because this" -- (referring to homosexuality)-- "is against the law and religion of our country." If he were not killed he thought that there would be a lot of harassment and he could not live there for the rest of his life and he could not enjoy a homosexual relationship with a man there ever again. He would like to be able to enjoy a homosexual relationship but it is impossible in Iran. He has never had a heterosexual relationship with a woman as it is not "inside" him."

14. That is what the claimant is quoted as saying there. The matter is further dealt with at paragraph 34 of the determination, where the adjudicator says this:

"The appellant's claim relates to the Refugee Convention and the European Convention on Human Rights equally. The convention reason in the former is that the appellant's membership of a particular social group and the persecution arises out of the activity that distinguishes him as a member of the group - his homosexual practices. If the appellant goes back to Iran and it is known to the authorities that he has been in a homosexual relationship, he will be persecuted, Mr Simm submitted. The second issue is the prosecution issue - if he goes back and is prosecuted for raping Amir. That issue turns upon whether he gets a fair trial. The answer to that, according to the US State Department report is 'no', he submitted. Those issues, together with the consistency of his story, leads to the conclusion that the appellant has made out his claim. He urged me to allow the appeal under both Conventions."

15. The adjudicator reserved his determination and subsequently reached conclusions adverse to the claimant. At paragraph 49 of his determination, he made the following findings:

"I find that although the appellant may well be a practising homosexual, he was able to indulge in that predilection for some five years before he left Iran to come to this country."

16. I interpose to say that there is no suggestion that he had suffered infringement to his private life during the five years referred to. The next finding was:

"I do not find that it is reasonably likely that neighbours alerted the Basidj to the appellant's and Amir's activities.

I do not find that it is reasonably likely that the Basidji raided Amir's home and then proceeded on the basis that Amir had been criminally sexually assaulted."

17. Then this important finding:

"I do not find that the appellant has been persecuted in Iran by reason of his membership of a particular social group (for which I accept that a practising homosexual there would qualify).

I do not find that it is reasonably likely that the evidence exists upon which to base a prosecution for sodomy against the appellant.

I do not find that the appellant's alleged fears of persecution in Iran by reason of his homosexuality are well founded in his circumstances."

18. In particular:

"I do not find that substantial grounds have been shown for believing that the appellant would face a real risk of being subjected to treatment contrary to Article 3 of the Human Rights Convention if he is returned to Iran."

Consequently, the adjudicator dismissed the human rights aspect of the appeal.

19. Nowhere in the determination is there a reference to Article 8. I conclude that Article 8 did not feature independently in the submissions before the adjudicator. The human rights aspect of the appeal having been rejected, the claimant then attempted to appeal to the Immigration Appeal Tribunal. The grounds of his appeal are included in the bundle. The only relevant ground is contained in the seventh paragraph:

"Yet further or alternatively, the adjudicator's treatment of the issues arising out 2, 3 and 8 ECHR."

This is reminiscent of the previous grounds in the appeal to the adjudicator.

20. There is no independent reliance on Article 8. It is mentioned only in conjunction with the other articles referred to. In determining the application for leave to appeal the Vice President of the tribunal referred to the determination by the adjudicator, saying he dealt with the applicant's human rights claim and found that there would be no breach of the applicant's human rights if returned. The Vice President concluded that there was no reasonable prospect that the grounds of appeal would succeed.
21. It is against those findings and that background that I have to consider the present application for judicial review. The matter to my mind is now governed by the decision of the Court of Appeal presided over by the Master of the Rolls in the joint cases of Ahsan Ullah and Thi Lien Do, to which I have already referred. In the course of his judgment, the Master of the Rolls considered two earlier decisions of the Court of Appeal and found them to be inconclusive on the question of whether an expulsion decision can engage articles other than Article 3 on the ground of treatment to be anticipated in the receiving state.
22. Then at paragraphs 64 of the judgment, under the rubric "Other Articles", the Master of the Rolls made his and the Court of Appeal's views clear. He said:

"This appeal is concerned with Article 9. Our reasoning has, however, wider implications. Where the Convention is invoked on the sole ground of the treatment to which an alien, refused the right to enter or remain, is likely to be subjected by the receiving state, and that treatment is not sufficiently severe to engage Article 3, the English court is not required to recognise that any other Article of the Convention is, or may be, engaged. Where such treatment falls outside Article 3, there may be cases which justify the grant of exceptional leave to remain on humanitarian grounds. The decision of the Secretary of State in such cases will be subject to the ordinary principles of judicial review, but not to the constraints of the Convention."

23. That decision is binding on me and applies, in my view, to the circumstances of the present case. Nevertheless, Miss Finch invites me to consider adjourning the present application on the grounds that an appeal to the House of Lords is pending. Moreover, there is a suggestion that the passage to which I have referred is obiter and not binding upon me.
24. So far as the question of adjournment is concerned, I refuse the application. Quite apart from whether the passage in Ullah is binding upon me, I am convinced, having regard to the second and third grounds of objection raised by Mr McCullough, that, first, no Article 8 point was raised independently of the main basis of the claim before the adjudicator. Second, there was no evidence which could have supported such a claim below. So even if a different conclusion were reached by the House of Lords, I do not see that it would affect the circumstances of the present case. In any event, as I have said, for the present I am bound, and of course accept as correct, the decision of the Court of Appeal. That covers the present case and is determinative of it. The adjudicator in this case found that there was no risk of a breach of Article 3, as I have said, when previously citing from his determination.
25. It follows from that, that neither could there be said to be any risk of a breach of Article 8. In any event, it is not incumbent upon the adjudicator or the tribunal or this court to consider them.
26. Accordingly, for those reasons, this application is refused.

MISS FINCH: My Lord, the claimant is legally aided.

SIR RICHARD TUCKER: Yes, do we have the certificate on file?

THE CLERK OF THE COURT: Yes, we do.

SIR RICHARD TUCKER: You are asking for a public funding certificate.

MISS FINCH: Yes, and for a detailed assessment

SIR RICHARD TUCKER: Yes, you may have that. Are there any ancillary applications?

MR MCCULLOUGH: In the light of the fact that the claimant is publicly funded, I have no further applications.

SIR RICHARD TUCKER: Thank you both for your assistance.