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
		26th January 2005

Wednesday, 26th January 2005

SIR MICHAEL HARRISON:

(a) Introduction

1. This is an application for judicial review of a decision of the Immigration Appeal Tribunal ("the IAT") promulgated on 19th November 2003 allowing the Secretary of State's appeal against an adjudicator's decision to the extent that the case was remitted for a new hearing.
2. The claimant is a citizen of Iran, aged 30, who came to this country and claimed asylum. Following refusal of asylum by the Secretary of State on 3rd May 2001, the claimant's appeal was heard by an adjudicator, Mr Brewer, who, by a determination promulgated on 12th May 2003, allowed the claimant's appeal. The adjudicator found the claimant to be a credible witness. The IAT considered there was a lack of adequate findings on the credibility issues and so the matter was remitted for another hearing.

(b) Adjudicator's determination

3. It is necessary, first, to refer to the relevant parts of the adjudicator's determination. In paragraph 7 the adjudicator stated that the claimant's claim was set out in a self-completion questionnaire, an interview record, a written statement and in oral evidence. Neither the questionnaire nor the interview record have been included in the court bundle. The claimant's written statement consists of only two pages. So far as the oral evidence is concerned, the IAT stated at paragraph 15 of their determination that they did not find, on the file, any clear record of proceedings, so that it was difficult to analyse exactly what evidence was given in the absence of any notes of evidence from either side. It is therefore not possible to determine with any accuracy exactly what evidence was before the adjudicator, except insofar as the adjudicator did summarise the claim, as set out in those sources, in paragraphs 7 and 8 of his determination. He also referred to some other aspects of the evidence elsewhere in the determination. In paragraph 7 he stated:

"...

The Appellant maintains that he fears persecution by the state for political or imputed political reasons.

"8. The Appellant maintained that he had been harassed because of his father's political history and because he had insulted the Mullah publicly. He confirmed the contents of his statement and interview, and said that in relation to the arrest of his friends, 2 had been arrested and they were called Azarie and Tizroo. He confirmed that he had insulted the Mullahs publicly and he said that this was directed to the religious authorities. He had made fun of them because the regime had had a negative affect upon their lives. His father had been arrested and lost his job. The Appellant had been unable to get into university. He had been persecuted at his shop. He believed that he would be imprisoned, tortured or possibly executed. He said that Iranian records are fabricated. Under cross-examination, he said that only 2 friends had been arrested and he said that his activities with the dog were to make fun of Islam. It was a satirical gesture suggesting that Islam and the dog were the same. He never intended to be caught but he did intend to demonstrate his views publicly. His father had a problem with the Iranian authorities because he had been a member of the Mujahuddin for 8 years but had ceased to be a member when the Appellant was aged 12. He worked for a government owned carpet factory and it resulted in the loss of his job. The Appellant had taken part in demonstrations in 1999. He said that he hated the authorities and had been arrested in his own town. There had been a video made of a demonstration and his friends had blamed him for the dog incident. He considered that he would be seen as an apostate if he returned to Iran. Following the dog incident, he stayed in Iran for 3 weeks hiding at a friend's house. He had not [sic] problem with the authorities, and he found an agent to whom he paid 6,000 German marks. He said that his savings and business paid over 90% of the cost."

4. I should interpose here that there were some matters contained in the claimant's written statement which were not specifically referred to in the adjudicator's determination. In his written statement the claimant had said that, following his arrest and detention after the demonstration in 1999, he was warned that, if he attended any further demonstrations, he would be killed. That made him scared because he knew they were not idle threats. He also mentioned that he was being watched by government agents. When describing how he and his friends had put a mullah's turban on a dog, he said that it was done as an insult to the government and that it would not go unpunished if they were found out.
5. Coming back to the adjudicator's determination, in paragraph 9 he summarised the Secretary of State's case as set out in his decision letter of 3rd May 2001 and as amplified by oral submissions at the hearing as follows:

"9...

"(i) After the Appellant's father's release from detention, the father did not experience any further difficulties and it was considered that the Appellant would not have had any difficulties either.

"(ii) In relation to the incident concerning a dog, the Secretary of State found it to be too much of a coincidence that his 3 friends were arrested yet he avoided arrest.

"(iii) The Secretary of State considered that there were inconsistencies in his account or reasons for doubting its credibility. He believed that the Appellant's motives for coming to the United Kingdom were based on economic betterment. It has also been more than 1 month after he arrived in the United Kingdom before he claimed asylum. He had also failed to claim asylum in the nearest safe country despite having travelled to a number of European countries. The Appellant's claim was refused under paragraph 336 of HC 395."

6. So far as the quoted paragraph 9(ii) is concerned, I should also mention that in paragraph 6 of his decision letter the Secretary of State noted that the claimant's friends had put blame on the claimant as the organiser because he had left the country, but the Secretary of State questioned how they would have been aware that he had fled if they were detained.
7. In paragraph 11 of his determination the adjudicator summarised the background material. In paragraphs 12 and 13 he gave his findings of credibility and fact. They are plainly important and so I quote them in full:

"12. On the issue of persecution and ill-treatment I find that the Appellant is a credible witness. His evidence was not seriously challenged under cross-examination and remained consistent. The Appellant had a long history of demonstrating his belief publicly as he said in his interview, statements and evidence. He had spent time in detention where [he] had been ill-treated in 1999 and in April 2000, he took part in the event involving ridicule of the Iranian government by placing a Mullah's turban on the head of a dog. He heard that 3 friends had been arrested and detained and the Appellant then fled to live with a friend before leaving the country. He was frightened and realised that it would not be long before he was captured and punished. His father had previously suffered because of his own political beliefs, which resulted in his father losing his job. I believe that the appellant's evidence was credible and I believe that he was ill-treated to the extent he explained.

"13. Apart from the issue of persecution and ill-treatment, I find that other relevant material facts have been established as follows:

It was established that the Appellant was an artist who was thoroughly tired of the Iranian regime to which he had shown opposition. I accept his evidence when he said that 2 of his friends had been arrested and not 3. Those arrested have been sent to prison and had put the blame on the Appellant for the dog incident."

8. Under the heading "Law and Conclusions" relating to the asylum claim, the adjudicator stated in paragraph 15 that the test of persecution is, and must be, at a high and demanding level. In paragraph 16 he stated:

"The Appellant claims that he fears persecution by the state. I believe that the Appellant's fear is well-founded and is corroborated by the objective evidence relating to the treatment of political dissidents in Iran. In particular I refer to the US Department of State Report dated March 2002. It is also confirmed by various pages annexed to the Appellant's bundle and in particular pages 19-21 and 24-26. I have decided that the Appellant has established his appeal having replied [sic] the lower standard of proof."

9. The adjudicator then concluded in paragraph 17 that he therefore found that the claimant had discharged the burden of proof of having a well-founded fear of persecution for a Convention reason.
10. He then turned to the claimant's human rights appeal. In paragraph 18 he decided that, in the light of the facts as established, there was no substance in the claimant's Article 5 claim. In paragraph 19 he considered the claimant's Article 3 claim and concluded:

"...

Having considered the substantial objective material concerning Iran and its treatment of political dissidents, and also having considered the case of MAR v United Kingdom, I am satisfied that Article 3 is engaged in this case. The Appellant's name is likely to be on record in Iran and the mere suspicion of political opposition would be enough to withdraw [sic] the attention of the authorities to the Appellant upon his return."

11. He concluded in paragraph 20 that there would be a real risk that the claimant would suffer a breach of his protected rights under Article 3 if he were returned to Iran. Both his asylum and his human rights appeals were therefore allowed.

(c) Secretary of State's grounds of appeal

12. In seeking permission to appeal to the IAT against the adjudicator's determination, the Secretary of State, in his grounds of appeal, maintained that the Home Office Presenting Officer had cross-examined the claimant and had drawn attention to inconsistencies between his interview and his evidence. The grounds also asserted that the adjudicator had not referred to the credibility points raised by the Home Office Presenting Officer or contained in the decision letter involving such questions as - how did the claimant know that his friends in detention had told the authorities, how did his friends know that he had fled, how was he able to remain in Iran for three weeks without a problem after their arrest, and why was there no proof that the authorities had been looking for him in Iran?

(d) IAT's Determination

13. In their determination, the IAT summarised the submissions that were made by both sides. In dealing with the adjudicator's statement that the claimant's evidence was not seriously challenged, the IAT considered that it meant that the adjudicator did not accept the challenge, not that there was no challenge. In giving reasons for their decision to allow the appeal, the IAT stated in paragraphs 25 and 26 of their determination as follows:

"25. In our view a fundamental point in this case is the implausibility of somebody not understanding or foreseeing the offence to be caused by deliberately dressing a dog in a Mullah's turban in the circumstances described by the claimant.

"26. This is the sort of case where there are regrettably no supported findings on a central issue, and against the background of a case involving such difficult issues as the implausibility of the acts of a man in business in Iran, the findings are plainly inadequate. The decision in this case is difficult to comprehend without an analysis of what is believed and what is not believed, set against the objective material."

14. The IAT decided that the most just and economical way of disposing of the appeal was by way of remittal so that proper findings could be made on credibility issues. The appeal was therefore allowed to the extent that the case was remitted for a new hearing.

(e) Submissions by both parties

15. Mr Rosemarine raised five grounds of appeal on behalf of the claimant. I propose to summarise the submissions on both sides relating to those grounds of appeal and then to give my conclusions relating to them.
16. Firstly, Mr Rosemarine submitted that the IAT erred in ignoring settled law that they should not interfere with an adjudicator's findings unless they were plainly wrong or unsustainable. In Oleed v Secretary of State for the Home Department [2003] 1 INLR 179, Schiemann LJ stated at paragraph 29:

"Before us it was accepted on behalf of the Secretary of State that the Tribunal should act even-handedly and should only set aside a decision of an Adjudicator who has heard the evidence if it is plainly wrong or unsustainable."

Arden LJ went a bit further in paragraph 35 when she said:

"It is common ground in this case that the Immigration Appeal Tribunal is entitled to set aside the decision of an adjudicator where it is satisfied that the adjudicator's finding of fact on a material point was plainly wrong or unsustainable, although such a power should be used sparingly where the adjudicator has assessed the oral evidence of a witness."

I was also referred to some other authorities along the same lines, including P v Secretary of State for the Home Department [2004] EWCA Civ 1640, Indrakumar v Secretary of State for the Home Department [2003] EWCA Civ 1677 and Subesh v Secretary of State for the Home Department [2004] EWCA Civ 56. I was also provided with an extract from Symes and Jorro on Asylum Law and Practice which, when dealing with remittal to an adjudicator, states that it has been said that the benefit of positive findings on credibility is not something of which an asylum seeker should be lightly deprived.

17. Mr Waite, on the other hand, submitted on behalf of the Secretary of State that the IAT had not found that the adjudicator's conclusion was wrong and substituted its own conclusion; it had found that the adjudicator's conclusion was insufficiently reasoned. All the authorities relied on by the claimant were cases where the IAT had substituted its own view for that of the adjudicator. Mr Waite drew my attention to the need for an adjudicator's determination to be sufficiently well reasoned to enable the basis of the adjudicator's conclusion and the basis for his acceptance of credibility to be understood. He submitted that the adjudicator failed to address the inherent implausibility of the dog incident in the light of the claimant's evidence that he was in fear of his life but had nevertheless embarked on an act which, if noticed by the authorities, would, on his own case, result in his death. A number of other examples were given of the adjudicator's alleged failure to explore matters and to give reasons for his decision, such as how it was known that the claimant's friends had blamed him, whether he had only attended one demonstration rather than demonstrations in the plural and how his friends would have known that he had fled. It was submitted that the adjudicator simply had not engaged properly with the implausibility of the main event (the dog incident) and that the IAT was entitled to exercise its discretion to remit the matter to another adjudicator.
18. Secondly, Mr Rosemarine submitted that the IAT's conclusion in paragraph 25 of its determination about the implausibility of the claimant not understanding or foreseeing the offence that would be caused by the dog incident, was simply incorrect and perverse. The evidence showed that the claimant understood, foresaw and intended that offence would be caused to the Mullahs. He did it to cause offence to the authorities and he realised what the consequences were likely to be if they found out that he had taken part in it. Mr Waite, on the other hand, submitted that a failure to understand or foresee the offence that would be caused includes a failure to understand or foresee the consequences of acting in that way.
19. Thirdly, Mr Rosemarine submitted that there was a breach of natural justice as a result of the IAT ignoring the claimant's counsel's written submissions, the claimant's own evidence, and his further written statement lodged with the IAT responding to the Secretary of State's grounds of appeal, and also as a result of refusing to allow the claimant to give evidence before the IAT and to be cross-examined. I was referred to the cases of Haile v Immigration Appeal Tribunal [2001] EWCA Civ 663, R (on the application of Azkhosravi) v Immigration Appeal Tribunal [2001] EWCA Civ 977, and E v Secretary of State for the Home Department [2004] EWCA Civ 49 dealing with the principles to be applied to the issue of the admission of fresh evidence. It was agreed between the parties that the court or tribunal should only admit new evidence in exceptional circumstances where the interests of justice requires it. Mr Waite submitted that the tribunal took into account the written submissions made on behalf of the claimant. There was nothing to suggest that it had ignored the claimant's oral evidence and it was entitled to refuse to admit the claimant's new statement and to refuse to allow the claimant to give oral evidence having examined the probity of the proposed evidence.
20. Fourthly, Mr Rosemarine submitted that the Secretary of State's appeal to the IAT was only against one of the four bases which had been accepted by the adjudicator. Those bases, set out in the claimant's counsel's skeleton argument before the adjudicator, were: firstly, that the claimant was an opponent of the Iranian Government which he had satirised in the dog incident; secondly, that he was a suspected member or sympathiser of the Mujahiddin; thirdly, that he had taken part in the 1999 demonstration and had been imprisoned and tortured; and, fourthly, that he was a political opponent who had become an asylum seeker in the hated UK. It was said that the adjudicator had found in favour of the claimant on all four bases, any one of which was sufficient for the claimant to be granted asylum. It was submitted that, even if the IAT were to find in the Secretary of State's favour on the dog incident, the claimant was bound to win on any of the other three bases which had not been questioned by the Secretary of State, so that the IAT's decision to allow the appeal was ultra vires. Mr Waite, on the other hand, submitted that it was artificial simply to extract the dog incident and to consider only the other three elements because credibility had to be considered in the round with all the relevant factors. The dog incident was at the core of the claimant's account because it had led to his departure from Iran.
21. Fifthly, and lastly, Mr Rosemarine submitted that the IAT had erred in law by allowing the Secretary of State's appeal when it was unsupported by evidence.

(f) Conclusions

22. I can start by dealing with the last three grounds of appeal first because I am satisfied that there is no merit in them.
23. So far as the third ground of appeal is concerned, I am satisfied that there was no breach of natural justice. It is clear from the summary of the party's submissions contained in the IAT's determination that the IAT had well in mind the main submissions that had been made on behalf of the claimant and that it had considered the oral evidence of the claimant so far as it could be determined from the documents before it. The IAT explained that it had refused to hear fresh evidence because the claimant had failed to comply with the relevant rules relating to an application to admit fresh evidence. It also pointed out that, in any event, the proposed fresh evidence was only relevant to what it described as the economic point. In those circumstances, it seems to me that the IAT was perfectly entitled to refuse to admit the claimant's fresh evidence contained in his additional written statement and to refuse to allow the claimant to be called so as to be cross-examined.
24. So far as the fourth ground of appeal is concerned, I do not consider that it could be said that the IAT's decision was ultra vires on the basis that they only held against the claimant on one of the four aspects on which the adjudicator had held in the claimant's favour. If the IAT was correct in concluding that the adjudicator's findings on credibility on the central issues were inadequate, such a finding was capable of affecting the claimant's case as a whole. Credibility has to be considered in the round and an adverse finding on credibility relating to the central issue would be capable of affecting the claimant's case as a whole.
25. There is no substance in the claimant's fifth ground of appeal. There is no onus on the Secretary of State to adduce evidence before the adjudicator. In fact it is clear from paragraph 3(i) of the adjudicator's determination that the Secretary of State did produce a bundle of documents which may well have included some objective background material. The burden of proof is, however, on the claimant to prove his asylum and human rights claim.
26. That leaves the claimant's first and second grounds of appeal, which really form the substance of this appeal. It is convenient to deal with the claimant's second ground of appeal first because that relates to an aspect upon which I am confident that the IAT was wrong.
27. In paragraph 25 of the IAT's determination, which I quoted earlier and which was the first of the two paragraphs containing the main reasons for the IAT's decision, the IAT made it clear that in their view the fundamental point in the case was the implausibility of somebody not understanding or foreseeing the offence that would be caused by deliberately dressing a dog in a Mullah's turban in the circumstances described by the claimant. That seems to me to be based on a fundamental misunderstanding of the claimant's evidence to the adjudicator. It is quite clear from the claimant's written statement that he well understood the offence that would be caused by what I have called the dog incident. He said in terms in his statement that the dog with the turban on its head was sent out as an insult to the government. That means that it was done as an insult to cause offence. To refer to the implausibility of the claimant not understanding that offence would be caused is to refer to the implausibility of something that does not exist in the evidence and in circumstances where the evidence suggests quite the opposite. Bearing in mind that the IAT referred to this as a fundamental point, it follows that it involves a basic misunderstanding of what the IAT considered to be a fundamental point. That is therefore an error which goes to the heart of the matter. Whether or not such an error should lead to the relief claimed by the claimant depends to an extent on consideration of the claimant's first ground of appeal.
28. Turning, then, to the first ground of appeal. I consider that Mr Waite's characterisation of what the IAT was saying is closer to the true position than that portrayed by Mr Rosemarine. There is no dispute between the parties that the IAT should not interfere with an adjudicator's findings unless they were plainly wrong or unsustainable. This, however, is not a case where the IAT had decided that the adjudicator's conclusion was wrong and had substituted their own conclusion, as was the position in the cases to which Mr Rosemarine had referred. In paragraph 26 of their determination the IAT's complaint was that there were inadequate findings on the credibility issues. Mr Waite is correct in characterising that as being more in the nature of an objection based on inadequacy of reasons, although, in referring to matters that had not been dealt with by the adjudicator, Mr Waite went rather further than the IAT had done. Whilst, however, it is true that the IAT had not substituted their own conclusion on the credibility issue for that of the adjudicator, and had remarked in paragraph 27 of the determination that the claimant may well succeed before the adjudicator on remittal, the practicality of the situation is that the claimant's credibility finding in his favour is now at risk. To that extent the claimant's position is worsened as a result of the IAT's determination. I should mention that, although the determination does not make it clear, I was told that the appeal is to be remitted to a different adjudicator.
29. I have already mentioned the passage in Symes and Jorro on Asylum Law and Practice, to which I was referred, to the effect that the benefit of positive findings on credibility is not something of which an asylum seeker should be lightly deprived. Whilst the case quoted in the footnote to that passage does not appear to be direct authority for that proposition, it is nevertheless a proposition with which I agree. In this case the claimant is not, strictly speaking, being deprived of the benefit of the adjudicator's positive credibility findings, but the benefit of those positive credibility findings is being put at risk and that, in my view, is not something that should be done lightly, especially bearing in mind that the adjudicator heard and saw the claimant giving oral evidence and being cross-examined.
30. With that approach in mind, I would need to be convinced that the adjudicator's determination is clearly so inadequately reasoned as to necessitate remittal, thereby putting the benefit of credibility findings in favour of the claimant at risk.
31. A decision on the adequacy of reasons inevitably involves an element of judgment. It is very easy to say, after the event, that the adjudicator should have dealt with certain aspects of the matter. I have read and reread the adjudicator's determination in this case. Whilst it is true to say that his findings on credibility and fact are expressed in summary fashion, I do not find them to be so deficient as to warrant remittal with the consequent risk to the claimant.
32. The fact of the matter is that the adjudicator believed the whole of the claimant's account. He heard and saw the claimant give evidence and he found him to be a credible witness. He noted that, although the claimant was challenged in cross-examination, he was not, in the adjudicator's opinion, seriously challenged, and he remained consistent in his account under cross-examination. He accepted that the claimant had a long history of demonstrating his belief publicly, a matter to which the claimant referred consistently in his interview, statement and evidence. That is an important finding because the dog incident was another example of demonstrating his belief publicly. The adjudicator accepted that the claimant had been detained and ill-treated in 1999. Importantly, he accepted that the claimant took part in the event involving ridicule of the Iranian Government by placing a Mullah's turban on the head of a dog. That satirical gesture, as it was described in the claimant's evidence, is an unusual one, which, it may be thought, was unlikely to have been made up. I understand Mr Waite's point about the implausibility of the incident if the claimant was, as he said, in fear of his life, but on the other hand, the claimant gave evidence that he never intended to be caught. The adjudicator accepted that the claimant was an artist who was thoroughly tired of the Iranian regime to which he was opposed. That is also an important finding because it shows that what he did was consistent with such an attitude.
33. The adjudicator specifically accepted that it was two, not three, of his friends who had been arrested. I am told by Mr Rosemarine that the evidence was that a third friend had fled to France. The adjudicator also accepted that his friends had been sent to prison and had put the blame on the claimant for the dog incident so that he had fled the country. Mr Waite raised the question how the claimant would have known that his friends had blamed him and how they would know that he had fled the country. Mr Rosemarine told me that the oral evidence was that the claimant's parents were friends of the parents of the claimant's friends and that was how those matters were known. Without a proper record of the oral evidence it is not possible to take a view on that aspect but, in those circumstances, it is not something on which I should take a view adverse to the claimant.
34. The adjudicator also made specific findings that the claimant's father had previously suffered because of his political beliefs which had resulted in him losing his job. He made it quite clear in terms, in paragraph 12 of the determination, that he believed that the claimant's evidence was credible. That is to say the whole of the account that the claimant had given. He also concluded, in paragraph 16, that the claimant's fear was corroborated by the objective material and, in paragraph 19, that the claimant's name was likely to be on record in Iran.
35. Whilst, of course, it is possible to say that the adjudicator could have dealt with some other matters and could have given more comprehensive reasoning, brevity can be a virtue rather than a vice. In any event, when the adjudicator is accepting the whole of the claimant's account, it is difficult to see how he needed to go any further than he did. I do not consider that the adjudicator's determination is inadequately reasoned to the extent that it is necessary to remit the matter for a new hearing and thereby put the benefit of the credibility findings in favour of the claimant at risk.

(g) Overall Conclusion

36. I have therefore come to the conclusion, not only that the IAT misunderstood the evidence in relation to what it considered to be a fundamental point, but also that the IAT erred in concluding that findings in the adjudicator's determination were inadequate to the extent that it was necessary to remit the case for a new hearing.
37. In those circumstances, this application will be allowed and the IAT's determination will be quashed. I will hear the parties as to whether any other consequential order ought to be made.
38. Mr Rosemarine, are you asking for any other consequential order?
39. MR ROSEMARINE: Yes, my Lord, we are asking also that the adjudicator's determination stand and that that be an end of the matter.
40. SIR MICHAEL HARRISON: Right, thank you.
41. MR ROSEMARINE: Thank you, my Lord. We would also ask, sir, for costs, costs for the whole procedure throughout.
42. SIR MICHAEL HARRISON: Thank you. Mr Waite?
43. MR WAITE: I certainly do not oppose the application for costs in relation to these proceeding, judicial review proceedings. When he says the whole proceedings throughout, I do not know what my learned friend means, but judicial review proceedings certainly.
44. SIR MICHAEL HARRISON: Before we go any further perhaps I should say straight away then that I order that the defendant should pay the claimant's costs of these proceedings.
45. MR WAITE: Yes, my Lord, as to the appropriate remedy, I have spoken to my solicitor about this. What I think my learned friend is actually seeking is a mandatory order from the court that the tribunal dismiss the Secretary of State's appeal in this case. I believe that is what he is asking for. If the tribunal's decision was simply quashed --
46. SIR MICHAEL HARRISON: Sorry, dismiss the Secretary of State's appeal to the tribunal?
47. MR WAITE: Yes. Your Lordship has quashed the tribunal's decision in this case, but that still leaves an outstanding appeal before the tribunal --
48. SIR MICHAEL HARRISON: Yes, I follow.
49. MR WAITE: -- in relation to which there has been no outcome. So I think that is probably what my learned friend is seeking.
50. I do not have express instructions on this point, but I think that the preference would be for it to be formally remitted, but clearly the IAT will be bound to take account of your Lordship's views in your judgment in relation to the appeal and what should happen to the Secretary of State's appeal, because, in effect, I accept your Lordship has said that the Secretary of State's appeal should have been dismissed. I do accept that.
51. But those are the two options, either a remittal to the tribunal, quashed, and the case remitted back to the tribunal for it to reconsider its decision in the light of your Lordship's judgment, or a mandatory order compelling the tribunal to dismiss the Secretary of State's appeal. In my submission the former is better, partly because, technically, if the Secretary of State's appeal is dismissed, the Secretary of State would then have a right of appeal to the Court of Appeal from the tribunal's decision, and it might be better in those circumstances, if that appeal were to be exercised, which is unlikely, if the decision was recorded in a reasoned IAT's decision. But I am in your Lordship's hands. I do not think we have any clear instructions either way, so I am happy to leave it to the court.
52. SIR MICHAEL HARRISON: Thank you very much. Yes.
53. MR ROSEMARINE: My Lord, we would be grateful if you could give that mandatory order. If the matter were to be sent back to the IAT then there would be a risk that the benefit of the positive findings on credibility, of which an asylum seeker is not to be lightly deprived -- there would be a possibility that that might happen again, and that another IAT might make yet another decision which we would have to judicially review or take to the Court of Appeal and so the procedures would go on and on and on, not just to the disadvantage of an asylum seeker who has been waiting for years for a final determination, not just to his disadvantage as regards the benefit of the positive findings, but also to his further disadvantage that as of 4th April the IAT will no longer exist, nor will there be two tiers of immigration tribunals, there will only be one tribunal, the AIT.
54. So, not only will the asylum seeker be deprived of the possibility of appealing on issues of fact which the Home Office has benefited from in getting this far, but he will also be deprived of the tier of appeal.
55. In conclusion, if my learned friend does wish to take this matter further, he has the right to appeal against your Lordship's finding and we would think the fairest order we submit, under the circumstances, would be a mandatory order for the IAT.
56. SIR MICHAEL HARRISON: Thank you very much. Mr Waite, I think especially as a mandatory order is not opposed by you, if the court was of that view --
57. MR WAITE: No.
58. SIR MICHAEL HARRISON: -- and also for the reasons given by Mr Rosemarine I think this is a matter where it is best to achieve finality. So I will make a mandatory order for the IAT to dismiss the Secretary of State's appeal.
59. MR ROSEMARINE: My Lord, I am very appreciative and thankful. If I may make one further comment as regards costs.
60. SIR MICHAEL HARRISON: Yes.
61. MR ROSEMARINE: For up to and including the request for permission stage the applicant was having to pay out of his pocket for costs. We would be grateful if, given his impecunious situation -- he is actually now fully supported by a certificate -- but we would be grateful if the order could be for the defendant to pay the claimant's costs for these proceedings on an indemnity basis.
62. SIR MICHAEL HARRISON: No, I am afraid I am not prepared to grant that, Mr Rosemarine. The answer is no. Anything else?
63. MR ROSEMARINE: No, my Lord.
64. SIR MICHAEL HARRISON: Thank you both very much.