QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF ASHGAR ATAIE DOLAT ABAD||(CLAIMANT)|
|IMMIGRATION APPEAL TRIBUNAL||(DEFENDANT)|
Smith Bernal Wordwave Limited
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(Official Shorthand Writers to the Court)
MR MCCULLOUGH appeared on behalf of the DEFENDANT
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"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.
"That if I am returned to Iran, I will face treatment contrary to the ECHR."
"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."
"If I am returned home I would not be recognised as human - homosexual practice is considered disgraceful and totally unacceptable in our Islamic community."
"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."
"My human rights would be violated if am forced to return there in respect of Article 2.3 and Article 8 of the ECHR."
"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."
"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."
"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."
"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."
"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."
"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.
"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.
"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."
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.