England and Wales High Court (Administrative Court) Decisions

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

		Manchester Civil Justice Centre 1 Bridge Street West Manchester M3 3FX (handed down at Royal Courts of Justice Strand London WC2A 2LL)
		15th October 2012

JUDGE GILBART QC :

1. In this claim, the Claimant seeks to challenge the decision of the Home Secretary of 14^th October 2011, made under section 94(2) of the Nationality Immigration and Asylum Act 2002, that her claim for asylum was clearly unfounded.
2. The Claimant is a native of Iran, born in January 1970. In September 2007 she travelled to the UK from Iran with her son, who was born in October 1993. (Unhappily his birth date is misstated by no less than 10 years in some of the papers, including letters written by the Claimant's solicitors). When she travelled to the UK she did so for the stated purpose of visiting her sister, who had also left Iran. Her sister had converted from Islam to Christianity and been granted refugee status in the United Kingdom.
3. The Claimant herself attended a Christian church in the UK and was in due course baptised in November 2007 as a convert from Islam. She claimed asylum in December 2007. Her case was that her son had inadvertently disclosed to his father in a telephone call that his mother had converted to Christianity. She feared that her husband would inflict violence upon her should she return to Iran. She contended also that her husband was in an organisation called the Basij, which is a paramilitary volunteer militia in Iran which also takes on the role of a type of religious police. She also claimed that her husband was a violent man who had inflicted serious violence upon her and upon her son, and had threatened both of them. Her case was that, as an apostate, she would be in even more danger from him. Her case was also that as an apostate she would be at risk of persecution. At that stage she made no claims relating to her son having shown any signs of psychological disturbance.
4. Her asylum application was rejected by the then Home Secretary. An appeal was made to the First Tier Tribunal, which dismissed the appeal on 20^th May 2010. At that hearing the Claimant gave evidence along with her sister and two members of her church.
5. The judge, although stating that " I do not pretend to find this an easy case" (paragraph 15(a)) rejected the claim in very robust terms, as appears below in the citations within letters from the Home Secretary. He disbelieved the Claimant's account. Despite his professed difficulty in resolving the issues, he elected to do so in colourful, not to say on occasion exclamatory, tones. He disbelieved her account of her husband's conduct, disbelieved her account that he was a member of the Basij, and rejected her account of how she had come to the UK. He also disbelieved her account that she had converted to Christianity, and did not accept that she would be in danger on her return to Iran. It is a decision where he formed a strongly adverse view of her credibility. He rejected her asylum claim, was satisfied that there were no substantial grounds for believing that, were she to return home, she would face a real risk of suffering harm, and held that removal from the United Kingdom would not amount to a breach of Article 8 of the European Convention on Human Rights.
6. Permission to appeal against that dismissal of her appeal was refused by Senior Immigration Judge Jordan, and an application to the Upper Tribunal was refused by Senior Immigration Judge Gleeson.
7. The Claimant contends that after her appeal was dismissed, the mental health of her son deteriorated because of his fear of being returned to Iran. He was seen by a cognitive behavioural therapist and then referred to a Consultant Psychiatrist. On 14^th June 2011 the Consultant Psychiatrist diagnosed a depressive episode and recommended treatment by a psychologist.
8. A submission was made to the Home Secretary on 27^th July 2011, which was rejected on 16^th September 2011. On 28^th September 2011 the Claimant's legal representatives made a fresh claim. It is important to note what it contained, and to identify what, if anything, had been before the First Tier Tribunal. It contained the following

i) A witness statement from the Claimant, her sister, and from the Claimant's son. The latter, which had not been before the First Tier tribunal, dealt with the following, among other matters:

a) His father being violent towards him "every time I did not listen to him"

b) His father being a Basij, being active as a Basij, and registering his son at school as the son of a Basij;

c) His father urging him to attend the mosque

d) His father beating him with his hands, feet or belt, and on one occasion burning his hands with a spoon. His father's attacks had left scars upon him;

e) His father being violent towards the Claimant on many occasions in his presence, and on one occasion pushing her and causing her wrist to bleed;

f) His father often using the F word (presumably the Farsi equivalent). The effect of his father's violent and intimidatory behaviour scared him from telling others about what had happened, and made him hide his scars;

g) His father was very religious, attending the mosque every day for prayer. He would beat his son if he did not attend the mosque;

h) His mother had converted to Christianity. He himself " believe(s) in God now……I have not converted as I am scared of doing this. If my father finds out he will kill me;"

i) When he had come to the UK he had understood that it was a temporary visit to see his aunt. He came here with the consent of his father. His father would telephone every week, and when his father learned from him that his mother had converted to Christianity he said that his father became very angry, and abused them both. He then told his mother what had happened, and he described her fear of being executed should she return to Iran. He expressed fear for his own safety should he return;

j) He had spoken to his doctors about what had happened, but had been too ashamed to tell anyone else.

ii) Reports from from Dr Niekirk, Consultant Psychiatrist at the Royal Bolton Hospital, culminating in one of 13^th September 2011, which described the son as "suffer(ing) from a moderate depressive episode and features of post traumatic stress disorder. He has become anxious and depressed since January when his mother (received) a letter saying that their asylum application had been refused, and then he became very withdrawn". Dr Niekirk described the son as having insomnia "because he worries about being deported. He also feels very protective about his mother due to the imminent danger of being deported to Iran." An earlier report of 13^th June 2011 recounted in its assessment the son's account of his father's membership of the Basij, his mother's fears for her life, her being a victim of his father's violence, the beatings he had received from his father, which produced scars on his back, and the use by him of hot spoons to burn him. Dr Niekirk reported seeing the scars on his arms for himself. He also reported on his having scars on his back. No such material had been placed before the First Tier Tribunal;

iii) Ms Bescoby, a cognitive behavioural psychologist of the Bolton NHS Foundation Trust, reported on 7^th September 2011 that he presented with depression and symptoms consistent with Post Traumatic Stress Disorder. She described his account of violence towards his mother and himself at the hands of his father. The refusal of asylum had impacted on him severely as "he is now worrying about what will happened if he does return to Iran". She described him as experiencing nightmares about the domestic violence and other scenes which he witnessed in Iran: and him having an angry mood. Ms Bescoby also described irritability, low mood, thoughts of self harm, and social isolation. She recommended that he accepted psychological treatment. No such material had been placed before the First Tier Tribunal;

iv) An earlier report from Ms Dunkerley a cognitive behavioural therapist, to much the same effect. No such material had been placed before the First Tier Tribunal;

v) A letter from Mr Mendes, a pastor in the Jesus Fellowship Church;

vi) A number of the son's Iranian exercise books (not before the First Tier Tribunal);

vii) A US State Department report of 13^th September 2011 (and thus postdating the First Tier Tribunal). It reported discrimination against Christians, and that apostasy from Islam was not respected and was punishable by death;

viii) A Compass Direct Report dated 6^th September 2011 (and thus postdating the First Tier Tribunal), which referred to a Christian convert being detained in prison for apostasy;

ix) Various legal authorities and asylum decisions.

9. On 14^th October 2011 that claim was rejected. It is necessary to refer to substantial parts of the letter. I have redacted details which could lead to the Claimant's identification.

"REASONS FOR REFUSAL

1. You have applied for asylum in the United Kingdom and asked to be recognised as a refugee under the 1951 Convention relating to the Status of Refugees (Geneva Convention) on the basis that it would be contrary to the United Kingdom's obligations under the Geneva Convention for you to be removed from or required to leave the United Kingdom. You claim to have a well-founded fear of persecution in Iran (Islamic Republic of). A person is a refugee where, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality; membership of a particular social group or political opinion, that person is outside the country of his nationality and is unable, or owing to such a fear, is unwilling to avail himself of the protection of that country: or who, not having a nationality and being outside the country of his former habitual residence, is unable, or owing to such a fear, is unwilling to return to it and is not excluded from the protection of the Geneva Convention.

2. Your application has not been considered by the Secretary of State personally, but by an official acting on their behalf.

3. Consideration has been given to whether or not you qualify for Humanitarian Protection in accordance with the paragraph 339C of the Immigration Rules. A person will be granted Humanitarian Protection in the United Kingdom if the Secretary of

State is satisfied that:

• substantial grounds have been shown for believing that the person concerned, if the person returned to the country of return, would face a real risk of suffering serious harm and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country and

• the person is not excluded from a grant of Humanitarian Protection

4. Consideration has also been given to whether you may be eligible for a grant of limited leave to enter or remain in the United Kingdom in accordance with the published Home Office Asylum Policy Instruction on Discretionary Leave.

5. Your claim for asylum is based upon your fear that if returned you would face mistreatment due to your religion. Your claim for Humanitarian Protection is based upon your fear that if returned you would face a real risk of unlawful killing and torture or inhuman or degrading treatment or punishment in the country of return.

6. You also claim that removing you to Iran (Islamic Republic of) or requiring you to leave the United Kingdom would be a breach of Article 8 of the ECHR outside the scope of paragraph 339C of the Immigration Rules.

7. You have previously made a claim for asylum, on 6/12/07. The basis of this claim has been taken from the original refusal letter. This information was collated from your Screening Interview Record dated 6th December 2007 (hereafter referred to as SCR), your Witness Statement dated 3rd January 2008 (hereafter referred to as WS) and your Asylum Interview Record dated 4th March 2008 (hereafter referred to as AIR). In these documents you claimed:

a) You are an Iranian national born on the ……… (SCR q2.6-2.8, WS para 1).

b) You have a sister who resides in the United Kingdom whilst the remainder of your family, namely your parents, ……brothers and ………sisters remain in Iran (SCR q3.3, WS page 3).

c) You were educated up until the age of 18 when you were awarded with a high school diploma (WS para 4).

d) You were brought up in a devout Muslim family and you were expected to obey all Islamic rules even as a child (WS para 5).

e) Your father, a member of the belief and political branch of the Aghidati, hit you repeatedly over your head as a result of you delaying your religious duty. Following this you received hospital treatment and had a scan to determine if you had sustained brain damage following the incident (WS paras 5,6).

f) In 1991 you married ………………….who is a devout Muslim (WS para 7). Your husband, who works as a………….., is a member of the Basij and is acquainted with those in high authority (WS pam 7, AIR q32, 48,68).

g) On the …………..2003 following an argument regarding your wish to attend a family event your husband beat you severely. As a result you were taken to hospital due to the injuries you sustained (WS para 10, AIR q31).

h) On the ……………2003 you had a brain angiogram. You were informed that this operation would be a dangerous procedure due to possibility of the vein in your head being torn (WS page 12, AIR q19). During the operation the vein in your head narrowed. The operation could not be continued and following a later appointment it was noted that you did not require a further operation (WS paras 13-14).

i) Your sister, a Christian convert who resides in the UK, telephoned you and informed you that she had prayed for you and had asked for a cure (WS page 16, AIR q18).

j) You came to the United Kingdom on……………2007, with your son, to visit your sister (WS page 18). During this visit your sister informed you how she had asked for you to be cured and you were moved by what she had told you and became interested in her faith (WS page 18, AIR q18).

k) Having started to accompany your sister to the Jesus Army church you felt that you had been chosen to follow Jesus Christ and on the …………..2007 you were baptised (WS paras 20-22, AIR q15).

l) Whilst out shopping with your sister your husband telephoned your sister's home. Your son answered the call and informed your husband that you went to church and that you had been baptised. Your husband contacted you later and informed you that he would kill you as soon as you returned to Iran or if you didn't return he would come after you (WS page 23, AIR p39).

m) Your claim is based upon your fear that you will be killed by your husband upon return to Iran due to your religious beliefs, namely your conversion from Islam to Christianity

n) In support of your claim you have submitted your passport, photographs depicting your baptism, certification of your baptism, letters from the Jesus Fellowship Church/Jesus Army, Iranian medical report, letter to a doctor in the United Kingdom and a copy of your NHS prescription. Furthermore your sister, …………….., has submitted a statement in support of your claim (hereafter referred to as SWS).

o) You left Iran on the …………..2007, with your son, when you began your journey to the United Kingdom in order to visit your sister. …………..Arriving in Manchester……………you entered into the United Kingdom using your passport and a valid visit visa. Having arrived in the United Kingdom, legally, you subsequently claimed asylum on the 6^th December 2007.

8. Your asylum claim was considered by the Home Office, but this was refused on 3/03/10. You appealed this decision, but your appeal was rejected on 21/05/ 10. You sought to appeal further on a point of law, but these applications were rejected on 2/07/10 and 23/11/10. You were considered to have exhausted your appeal rights on 25/11/10. You submitted further representations on 3/08/11 but these were refused on 16/09/11.

9. You have now submitted additional further representations in the form of a letter, dated 27/09/11, and a number of documents. These documents include:

• your son's witness statement, dated 23/09/11;

• witness statements from yourself and your sister, all dated 26/09/11;

• various medical letters detailing your son's medical condition;

• a letter from a church leader confirming that you have been baptised and that you attend his church regularly

• 3 of your son's school exercise books;

• A copy of the US State Department Report on Iran;

• A copy of the Compass Direct Report about a Christian who was detained in Iran;

• Copies of the determinations in 7 different pieces of case law

10. In your submissions you have stated that:

a) You were married to a strict Muslim man in Iran. You and your son suffered domestic abuse at the bands of this man. One of the injuries you suffered at his hands resulted in a brain aneurism, which subsequently resolved itself. Your sister, who is a Christian convert, attributed this recovery to a miracle caused by Jesus;

b) You came to the UK on a visit visa in September 2007. You were accompanied by your son;

c) Whilst in the UK you converted to Christianity You were baptised on 18/11/07. Your husband then discovered what you had done and became upset. Because you were afraid of him you claimed asylum in the UK on 6/12/07;

d) Your son cannot return to Iran and relocate away from your problems there because in Iran children have to obey their parents;

e) Your son has suffered a 'moderate depressive episode' and features of PTSD by (sic) a consultant psychiatrist. He is current (sic) prescribed anti-depressant medication and has been referred to a psychologist. You believe that his symptoms are the result of your son facing the prospect of being returned to Iran and his father. He has had "fleeting thoughts of suicide";

f) You are committed to your new Christian faith. A senior member of your church has confirmed this. Your son also attends the church, although he has not been baptised;

g) You will be at risk on return to Iran because you have converted from Islam to Christianity. You will be considered to be an apostate and punished with death.

11. Your claim has been considered but for the reasons given below it has been concluded that you do not qualify for asylum or Humanitarian Protection. It has also been concluded for the reasons given below that you do not qualify for limited leave to enter or remain in the United Kingdom in accordance with the published Home Office Asylum Policy Instruction on Discretionary Leave.

12 Given the historical details of your claim, consideration has been given to the case law of BA (Nigeria) (FC) (Respondent) v Secretary of State for the Home Department (Appellant) and others. The court found that in cases where a further immigration decision is required after further submissions on human rights or asylum grounds have been made, regardless of whether those further submissions amount to a fresh claim for asylum under paragraph 353, section 92(4)(a) of the Nationality, Immigration and Asylum Act 2002 will be engaged and the individual will be entitled to a further in-country rights of appeal.

13. Consequently, paragraph 353 is not the correct mechanism for considering such cases. This is a change from the previous process, where paragraph 353 would be applied to all further submissions except those where the immigration decision would give rise to an in country right of appeal regardless of whether or not the applicant has made an asylum or human rights claim.

14. However, notwithstanding that you have been given a fresh claim, it must be reiterated that the claim that you have submitted is not new. Upon reviewing the original decision letter and subsequent appeal determination relating to your case it is clear that your assertion that you will be harmed by the Iranian authorities and by your husband because you have converted to Christianity is the same basis on which you relied when you claimed asylum on 6/12/07. This issue was considered in its entirety by both the Home Office and the Immigration and Asylum Chamber. As per the caselaw of Devaseelan v. Secretary of State for the Home Department, [2002] UKIAT 000702, the findings of the Immigration Judge are to be taken as a starting point for further consideration of your claim.

15. With regard to the issues you have raised, in his determination of your claim, the Immigration Judge stated (italics as per letter):

"She claims to have continued as a Christian once she arrived in this country, and there is evidence to that effect. But there are such discrepancies in the history put forward by the Appellant, that her appeal must fail. In short, on reflection, in the cold light of day, taking the case in the round, I am not persuaded that the Appellant has told the truth" (paragraph 15a)

" I am not persuaded that her husband is even in the Basij let alone has a rank within it." (paragraph 15e)

"I do not believe a word that the Appellant has said about the attitude of her husband, nor his affiliations in Iran"(paragraph 15 f)

" I am not persuaded that the husband is in the Basij, nor that he has perpetuated domestic violence on the wife." (sic) (Paragraph 15 g)

"I am satisfied that she has been to various meetings, and has persuaded church elders that she is a caring and loving person. I am not satisfied that she has converted to Christianity in any meaningful sense, and has undergone the outward appearance thereof, to assist an asylum claim, with the assistance of her sister." (paragraph 15 i)

16. Your fresh submissions and evidence have been considered. With regard to your fear for yourself and your son at the hands of his father, following previous incidents of domestic violence, it must be pointed out that this claim was not believed by the Immigration Judge. The Judge provided detailed findings and explanations of his conclusions on this point. It is noted that in your further submissions you have not sought to undermine or overturn these credibility conclusions. Instead you have provided a witness statement from your son in which he states that his father was a Basij.

17. Despite the fact that his statement relates to events which took place some time before the court hearing, it is noted that your son did not provide this evidence during your appeal hearing. Therefore, when considered in light of his young age, the incentive of being able to remain living in the UK and, more importantly, your own documented history of misleading the UK authorities, the evidence you have submitted on your son's behalf is considered to be self-serving and cannot therefore be relied upon as an accurate confirmation of your husband's position or your past history of domestic violence with him.

18. Moreover, as stated above, your assertions and your son's statement do not change the credibility findings made by the Immigration Judge which show your account to be false. Therefore, even if it were accepted that your son believed the information provided in his statement, it is not considered that it is evidence that the Immigration Judge was wrong.

19. It must therefore be concluded that your further submissions on this point merely amount to a disagreement with the Immigration Judge and a reiteration of your earlier claim. As your account of your husband's background and history of domestic violence is not true, it follows that you and your son would not be at risk on that basis on return to Iran.

20. With regard to your fear because you have converted to Christianity it is further pointed out that your account was not accepted as true by the Immigration Judge. As highlighted above, he was satisfied that you had convinced the elders of your church that you were a good person and that you were a genuine convert to Christianity.

However he went on to say that he was not convinced you had converted in any real or meaningful sense and that your outward appearance of conversion was simply to bolster your claim for asylum. In addition to this he found that you had been assisted in your deception by your sister. It is therefore considered that the witness statement by your sister cannot be relied upon as true or accurate confirmation of your conversion.

Nor can a letter of support from a church elder, whom it was previously concluded you had successfully deceived, be accepted as such confirmation of conversion. Moreover it is pointed out that no issue is taken with the motive or credibility of the elder who wrote the statement, or indeed with his confirmation that you continue to attend his church. Instead, issue is taken with your motivation in attending that church. As stated by the Immigration Judge your attendance of church meetings does not show that you have converted, merely that you have sought to create the impression that you have done so.

21. It must therefore be concluded that your further submissions on this point merely amount to a disagreement with the Immigration Judge and a reiteration of your earlier claim. The findings of the Immigration Judge remain valid, alongside the resulting conclusion that if you are not a convert to Christianity you would and could not be at risk on return to Iran on that basis.

22. …………………………………………….

23. …………………………………………….

24. Notwithstanding this, your son's mental health issues ha(ve) been considered below as part of his human rights.

25. Your submissions have been considered but, as noted above, there is nothing in them which effectively undermines or explains away any of the credibility findings of the Immigration Judge on which your appeal was dismissed. You have provided some explanations, but it is considered significant that they were only advanced over a year after the determination of your claim and not raised when the Immigration Judge was questioning you on these issues.

26. Moreover, there is nothing in your submissions which advances your fear further or provides further information on the claimed events. Your submissions therefore merely amount to a disagreement with the Judge's determination. As such, and based on the aforementioned caselaw, the Judge's findings remain valid and your account is still rejected as not being true. Your fresh asylum claim is therefore rejected. Moreover, given the clear findings that your claim is not true, which you have not sought to overturn, it is concluded that your fear is clearly unfounded. As such it is considered appropriate to certify this claim under paragraph 94(2) of the 2002 NIA Act.

27. You have claimed that you will be subjected to unlawful killing on return to Iran and that your removal would therefore be in contravention of Artide 2 of the ECHR. You have not demonstrated a real risk of such treatment. This is because, as outlined above, your account was not considered to be true by an Immigration Judge and your further submissions amount merely to a re-submission of the same points which were previously not believed. You have failed to show that this judgement was flawed and therefore it remains valid. Therefore, you do not qualify for Humanitarian Protection.

28. You have stated that if you are returned to Iran you will be persecuted but there are not substantial grounds for believing that there is a real risk that you would face treatment contrary to Article 3. This is because, as outlined above, your account was not considered to be true by an Immigration Judge and your further submissions amount merely to a re-submission of the same points which were previously not believed. You have failed to show that this judgement was flawed and therefore it remains valid. Therefore, you do not qualify for Humanitarian Protection.

29. You have claimed that if removed to Iran your son's right to respect for his private life under Article 8 ECHR, would be interfered with. Your son has been diagnosed as suffering from a moderate depressive episode and features of PTSD. This is confirmed in medical report dated 13/09/11, by Dr Van Niekerk and that he is in receipt of Mirtazapine since June 2011. According to medical report your son has mentioned "fleeting thoughts" of wanting to end his life. This is because he claims that he cannot contemplate the prospect of returning to Iran where he has suffered traumatic experiences in the past and that the prospect of return would trigger him to re-experience past trauma in a way in which he cannot cope.

30 Your medical report also confirms that he does not have a current intent of suicide. Since in the UK he has undertaken studies and sought help from medical professionals to help overcome your traumatic experiences. This is indicative of the fact that he is not detached from reality and can deal with day to day issues and would be able to seek help if he needed to. Although the doctor indicates in the medical report that your son has experienced suicidal thoughts, as noted above your account of your problems with your husband and his position of authorities has not been believed and it is therefore clear that this is not linked to any anticipated well founded fear of persecution in Iran. It is believed that his threat of self-harm arises from his reluctance to return to Iran and is put forward as a basis for preventing your lawful removal from the UK.

31. You further claim that if removed to Iran your son would not have access the specialist care and support that you are currently receiving in the UK and that the withdrawal of this treatment, would compromise your personal integrity by leading to a deterioration in your mental health. However, not every act or measure which adversely affects personal integrity will interfere with the right to respect to private life, under Article 8(1). According to a COI Request on the subject of mental health care in Iran:

The WHO Mental Health Atlas of 2005 states that a mental health policy was formulated in 1986 along with the national mental health programme which was evaluated in 1995 and 1997 with changes made based on suggestions. In 1995, it was evaluated jointly by the WHO and the Teheran Psychiatric Institute. Other related programmes are Integration of Substance Abuse Prevention within the Primary Health Care and a Harm Reduction Programme. Mental health is a part of primary health care system.

The report continues:

"The country spends 3% of the total health budget on mental health. The primary sources of mental health financing in descending order are tax based, out of pocket expenditure by the patient or family, social insurance and private insurances. ... The country has disability benefits for persons with mental disorders. Since 2001, the disabled mentally ill patients are entitled to a stipend of about $30 per month if they do not receive other free services. Already, about 10 000 disabled patients are receiving disability benefits and the number is increasing. Institutional care is free of charge for the disabled mentally ill." ((DI Request - 07/08-162)

32. The COl Request also advises that while no record can be found of the availability in Iran of the specific antidepressant drug your son receives, it confirms that alternative drugs such as Fluoxetine can be obtained in your country.

33. It is therefore considered that there are appropriate psychiatric facilities available to you in Iran. Your son would not suffer a flagrant denial of access to appropriate treatment in Iran. It is not accepted that, if removed to Iran, the difference in treatment and support available to you in the UK, when compared to that which is available in Iran, is sufficiently serious to engage Article 8(1) of the ECHR. Removal cannot be resisted merely on the ground that medical treatment or facilities are better or more accessible in the UK than in Iran.

34. Moreover, in order to protect the wider interests and the rights of the public it is vital to maintain effective immigration control. In pursuit of that aim and having weighed up your interests, it is believed that any interference with your private life would be legitimate, necessary and proportionate and in accordance with the law. In particular, it is not considered that yours is a truly exceptional case or that removal would result in a flagrant denial of your right to respect for your private life. In view of the above, it is considered that your removal, or your son's removal from the UK would not amount to a breach of Article 8 of the ECHR.

35. With regard to the broader issue of Article 8 of the ECHR in relation to yours and your son's private lives, this matter has been considered in full within the response to your recent earlier further submissions, dated 16/09/11. It was concluded that your private lives would not encounter interference if you were returned to Iran and, even if they did, any interference would be lawful and proportionate to the legitimate aim of maintaining effective immigration control.

36. You have not raised any issues which would result in a grant of Discretionary Leave in the UK.

37. In the light of all the evidence available, it has been concluded that you have not established a well-founded fear of persecution and that you do not qualify for asylum. Your asylum claim is therefore refused under paragraph 336 of HC395 (as amended). It has also been concluded that you have not shown that there are substantial grounds for believing that you face a real risk of suffering serious harm on return from the United Kingdom and that you do not qualify for Humanitarian Protection. Therefore your application has also been refused under paragraph 339F of the Immigration Rules. Your application has been recorded as determined on 14/10/11.

38. In addition, after considering all the evidence available to him, the Secretary of State has decided that your asylum claim is clearly unfounded and hereby certifies it as such under section 94(2) of the Nationality; Immigration and Asylum Act 2002.

39. Furthermore, it is not considered on the information available that your removal would be contrary to the United Kingdom's obligations under the ECHR.

40. In addition, after considering all the evidence available to him (sic), the Secretary of State has decided that your human rights claim is clearly unfounded and hereby certifies it as such under section 94(2) of the Nationality; Immigration and Asylum Act 2002.

41. As your asylum and human rights claims have been certified as clearly unfounded, you may not appeal while in the United Kingdom.

42. On the basis of the information you have provided, it has been concluded that removing you from the United Kingdom or requiring you to leave would not be contrary to the United Kingdom's obligations under the ECHR

43. All the relevant factors known to the Secretary of State under paragraph 395C (and paragraphs 365 to 368 for family members) of the Immigration Rules have been considered, before making a decision to remove. These factors include;

(i) Age- It is noted that you are an adult of working age. it is not considered that your age is such that it justifies you remaining in the UK;

(it) Length of residence in the United Kingdom- Your length of residence has been considered previously as part of your private life consideration. It was not found that your length of residence is such that it justifies you remaining in the UK;

(iii) Strength of connections with the United Kingdom- The strength of your connections to the UK have been considered above as part of your private life consideration. It was not found that the strength of your connections to the UK is such that it justifies you remaining in the UK;

(iv) Personal history, including character, conduct and employment record- Your personal history has been considered.You overstayed your leave in the UK and have been found by an Immigration Judge to be a person willing to lie and deceive the UK authorities. Your personal history does not justify you remaining in the UK;

(v) Domestic circumstances- Your domestic circumstances have been considered. However you 'will be returned to your country with your son and so your domestic circumstances do not justify you remaining in the UK;

(vi) Previous criminal record and the nature of any offence of 'which the person has been convicted- There is no record of you having a criminal record. It is not considered that this justifies you remaining in the UK;

(vii) Compassionate circumstances- Your compassionate circumstances have been considered and incorporated into this letter, or previous decisions. They do not justify you remaining in the UK;

(viii) Any representations received on the person's behalf-All representations received on your behalf have been considered and incorporated into this letter, or previous decisions. They do not justify you remaining in the UK.

44. We have carefully considered all these circumstances individually and together, but for the reasons given above it is considered that your removal from the United Kingdom is appropriate.

45. If you have not yet taken advice on your position, you are strongly advised to do so now."

10. After the claim had been issued (by both the Claimant and her son), and after HH Judge Pelling QC, sitting as a deputy High Court Judge, had on 24^th April 2012 refused permission to apply for judicial review in her son's case, but had granted permission in hers, the Home Secretary gave further consideration to her claim. She issued a letter on 21^st June 2012. In it she stated:

"Supplementary letter.

1) Further to the decision letter dated 14 October 2011 (DL), and following the grant of permission to claim Judicial Review by His Honor (sic) Judge Pelling QC on 24 April 2012, further consideration has been given to your claim in accordance with the guidance of the Court of Appeal in R (L) vs SSHD.

2) Your original basis for claiming asylum is set out in paragraph 7 of the DL. You have submitted what is described as a 'fresh claim' in a letter dated 28 September 2011 and enclosed a number of documents including inter alia;

a) Statement of (her son) dated 23 September 2011

b) Statement of (herself) dated 26 September 2011

c) Statement of (her sister) dated 26 September 2011

d) Letter from Nicholas Mendes dated 21 September 2011

3) Also enclosed with your letter of 28 September 2011 are a number of letters concerning medical treatment received by (your son) whilst he has been in the UK, each of which has been considered. You have also provided 3 of your son's school exercise books and a number of objective reports, each of which has been considered. In your letter dated 28th September 2011 you have set out the history of your claim:

a) You are a national of Iran and were raised as a Muslim;

b) You were married to a strict Muslim man, a member of the Basij in Iran. You and your son suffered domestic violence at the hands of this man. One of the injuries you suffered at his hands resulted in a brain aneurism, which subsequently healed by itself. Your sister, who is a Christian convert, attributed this recovery to a miracle from Jesus;

c) You came to the UK on a visit visa in ……………2007. You were accompanied by your son;

d) Whilst in the UK you converted to Christianity. You were baptised on 18 November 2007. Your husband then discovered what you had done and because you were afraid of him, you claimed asylum in the UK on 06 December 2007.

4) In your letter you then set out what is described in the letter as "the Fresh Asylum Claim". It is said that the fresh claim is being made further to receipt of a statement from your son and medical evidence confirming a diagnosis of depression, PTSD, self harm and suicide ideation. The letter states

a) Your son confirms his fathers occupation and details the family dynamics in that he was scared of his father and had to obey him. It is said that it is no surprise that he felt relieved at leaving his father in Iran to visit the UK. You claim that you and your son cannot return to Iran and relocate away from your problems there, because in Iran children have to obey their parents;

b) Your son has suffered a 'moderate depressive episode' and is diagnosed present with features of PTSD. He is currently prescribed anti-depressant medication and has been referred to a psychologist. You believe that his symptoms are the result of your son facing theprospect of being returned to Iran and his father. He has had "fleeting thoughts of suicide";

c) You are committed to your new Christian faith. A senior member of your church has confirmed this. Your son also attends the church, although he has not been baptised;

d) You will be at risk on return to Iran because you have converted from Islam to Christianity. You will be considered to be an apostate and punished with death.

e) You and your son will not be able to obtain protection due to your husband's status as a Basij.

5) As there has been a previous determination by an immigration judge, in considering the further submissions made by you, the first immigration judge's determination is the starting point for any consideration of further submissions; Devaseelan v. Secretary of State for the Home Department, [2002] UKIAT 000702. You claim in the further submissions made that you are committed to your new Christian faith and you will be at risk on return to Iran because you have converted from Islam to Christianity. You will be considered to be an apostate and punished with death and you and your son will not be able to obtain protection due to your husband's status as a Basij. It is to be noted that the claim you have submitted does not differ from the claim considered by Immigration Judge Herwald in his determination promulgated on 27 May 2010.

6) Immigration Judge Herwald found that:

"She claims to have continued as a Christian once she arrived in thic ountry, and there is evidence to that effect. But there are such discrepancies in the history put forward by the Appellant, that her appeal must fail. In short, on reflection, in the cold light of day, taking the case in the round, I am not persuaded that the Appellant has told the truth" (paragraph 15a)

"…..had I found her a credible witness on other matters, I might have been persuaded in repect of the domestic violence. But the converse is so. In her witness statement, she made no reference to prior acts of violence by her husband. In her witness statement she referred only to acts of violence towards the son. In the asyluminterview again, there was no overt reference to violence….." ...paragraph 15 b)

"….discrepancies in the evidence of the Appellant me persuade me that she was not telling the truth. I am not persuaded that her husband is even in the Basij, let alone has a rank within it……I am not persuaded that a man who had perpretrated domestic violence against his wife; a man who put his regime before his family, would be persuaded to assist the sister ……to escape from the regime…" ( paragraph 15 e)

" I do not believe a word that the Appellant has said about the attitude of her husband, nor his affiliations in Iran." (paragraph 15 f)

" I am not persuaded that the husband is in the basij, nor that he has perpetuated domestic violence on the wife." (sic) (Paragraph 15 g)

" either she has not been truthful in the visa applications form about her address, or her husband has sent these documents deliberately from what is their own address, conniving with her, to help in the asylum claim….;" (paragraph 15 i)

"……On the one hand, the Appellant said that she believed her husband " would not leave me alone" but on the other hand, she conceded that she had heard nothing from him for two and a half year. I contrast this with the discrepant evidence of the sister. She had made statements, and never mentioned that the husband had been in touch with her. Buit before me she said that she could not tell a lie, and, in effect, what she had said before was untrue. In fact, she said that the husband had been contacting her, the sister, until only four months ago. Thus it turns out that the siater 9who claims to be a devout Christian) has herself been telling lies, contradicts the Appellant, and I find myself unable to rely on the evidence of either of them as a result;" (Paragraph 15 j)

"….Of course, that impinges on the evidence of the Appellant to claim to have become a Christian. If she has become a Christian she appears also not to flinch at being economical with the truth. She was telling lies in respect of a number of matters on oath…..I gained the impression that the Appellant was willing to say anything to ensure that her asylum claim succeeded, even if it was a pack of lies…..The lies had begun with the visit visa application, and continued in various statements to the authorities here and culminated in oral evidence;" ...paragraph 15k)

"I am satisfied that she has been to various meetings, and has persuaded church elders that she is a caring and loving person. I am not satisfied that she has converted to Christianity in any meaningful sense, and has undergone the outward appearance thereof, to assist an asylum claim, with the assistance of her sister." (paragraph 15 i)

Therefore, in summary; the Immigration Judge found that you were not the victim of domestic violence in Iran, that your husband was not in the Basij and that any demonstrable conversion to Christianity was simply an "outward appearance thereof, to assist an asylum claim".

7) You have provided a witness statement from your son, that was not available to the Immigration Judge, corroborating your claims that your husband was a member of the Basij. The statements made by you, your son,…………and your sister …………..seek to add to the available facts in an effort to obtain a more favourable outcome. Furthermore the facts that are relied upon, are not materially different from those put to Immigration Judge Herwald.

8) You maintain that you and your son suffered domestic violence at the hands of his father, a member of the Basij following previous incidents of domestic violence. It is noted that that this claim was not accepted by the Immigration Judge. The Judge carefully considered the evidence and made findings. The determination sets out the evidence before the Tribunal and provides careful reasoning for the findings made. It is noted that there is nothing within your further submissions that undermine the findings made by Immigration Judge Herwald and his findings as to the credibility of the witnesses that he heard from. You have simply sought to add to your original claims by providing the witness statement from your son in which he states that his father was a Basij in an effort to obtain a more favourable outcome.

9) It is noted that your son's statement refers to incidents that occurred some time prior to the hearing of your asylum appeal on 13 May 2010. It is noted that your son was aged over sixteen at the time of this appeal, and he had not yet experienced any issues with depression and anxiety which began in January 2011 (Dr J Van Niekerk's letter dated 13 September 2011). It is noted your son did not provide any evidence during your appeal hearing, written or otherwise. Therefore, when considered in light of his young age, the incentive of being able to remain living in the UK and the adverse credibility findings that have been made against you and your sister……………., the evidence you have submitted in the form of a statement by your son is considered to be self-serving and cannot be relied upon as confirmation of your husband's position as a member of the Basij, or as evidence of a past history of domestic violence.

10) When the statements of yourself, your son and your sister are given anxious scrutiny and considered alongside the findings made by Immigration Judge Herwald about material aspects of your claim, it is considered that your further submissions merely amount to a disagreement with the findings of the Immigration Judge. As your account of your husband's background and history of domestic violence is not accepted as true, it follows that you and your son would not be at risk on that basis on return to Iran.

11) The letter provided by Mr Nicholas Mendes dated 21 September 2011 has been considered and it is noted that he again confirms that you were baptised on 18 November 2011. He confirms that you have continued to attend church meetings locally and nationally, both on Sundays and mid week since that time. Immigration Judge Herwald found that he was not convinced you had converted in any real or meaningful sense and that your outward appearance of conversion was simply to bolster your claim for asylum.

In addition to this he found that you had been assisted in your deception by your sister. The Immigration Judge found your attendance of church meetings does not show that you have converted, merely that you have sought to create the impression that you have done so.

12) It is therefore concluded that your further submissions on this point, again mere1y amount to a disagreement with the Immigration Judge and are a reiteration of your earlier claim. It is therefore considered your submissions do not create a realistic prospect of success before an Immigration Judge. In so deciding, the factual substance and detail of your claim has been considered.

13) Your son's medical conditions have been considered at length in the decision letter of 14 October 2011 at paragraphs 22 to 35. It is considered that this letter provided sound, thorough and detailed reasoning for considering that this aspect of your further submissions do not create a realistic prospect of success before an Immigration Judge. It is considered that the claim cannot on any legitimate view succeed.

14) In the light of all the evidence available, it has been concluded that you have not established a well-founded fear of persecution and that you do not qualify for asylum. Your asylum claim is therefore refused under paragraph 336 of HC395 (as amended). It has also been concluded that you have not shown that there are substantial grounds for believing that you face a real risk of suffering serious harm on return from the United Kingdom and that you do not qualify for Humanitarian Protection. Therefore your application has also been refused under paragraph 339F of the Immigration Rules. Your application has been recorded as determined on 14 October 2011.

15) In addition, after considering all the evidence available to him, the Secretary of State has decided that your asylum claim is clearly unfounded and hereby certifies it as such under section 94(2) of the Nationality Immigration and Asylum Act 2002.

16) Furthermore, it is not considered on the information available that your removal would be contrary to the United Kingdom's obligations under the ECHR.

17) In addition, after considering all the evidence available to him, the Secretary of State has decided that your human rights claim is clearly unfounded and hereby certifies it as such under section 94(2) of the Nationality Immigration and Asylum Act 2002.

18) As your asylum and human rights claims have been certified as clearly unfounded, you may not appeal while in the United Kingdom.

19) On the basis of the information you have provided, it has been concluded that removing you from the United Kingdom or requiring you to leave would not be contrary to the United Kingdom's obligations under the ECHR."

Discussion and conclusions

11. This application for judicial review relates only to the question of certification. It is not for this Court to determine whether or not the Secretary of State was right or not in her rejection of the claims. The appropriate tribunal to resolve that issue, should there be an appeal, is the First Tier Tribunal. The question for this court is whether it can be said that the Claimant's asylum and other claims were clearly unfounded, and thus capable of being certified under section 94 (2).
12. I was referred to various authorities, including ZL & Anor v Secretary of State for the Home Department and Lord Chancellor's Department [2003] EWCA Civ 25 [2003] 1 All ER 1062, [2003] Imm AR 330, [2003] WLR 1230, ZT (Kosovo) v Home Secretary [2009] UKHL 6 [2009] 1 WLR 348 , [2009] 3 All ER 976, R(Atakaby) v Home Secretary [2002] EWCA Crim 234, and R(Thangarasa and Yogathas) v Home Secretary [2002] UKHL 36 [2003] AC 920, [2002] 3 WLR 1276, [2002] 4 All ER 800.
13. The test comes to this, as per Lord Phillips, then Master of the Rolls in ZL at paragraph 58:

" If on at least one legitimate view of the facts or the law the claim may succeed, the claim will not be clearly unfounded……..".

At paragraph 60 he stated, albeit in the context of decisions by executive officers

"As we shall explain, an issue of credibility arose in this case in relation to ZL. The Secretary of State gave her the benefit of the doubt and his decision did not turn on credibility. Where an applicant's case does turn on an issue of credibility, the fact that the interviewer does not believe the applicant will not, of itself, justify a finding that the claim is clearly unfounded. In many immigration cases findings on credibility have been reversed on appeal. Only where the interviewing officer is satisfied that nobody could believe the applicant's story will it be appropriate to certify the claim as clearly unfounded on the ground of lack of credibility alone."

14. Cases where credibility is in issue raise particular problems, because a finding on credibility can only be made by a judge or tribunal on the basis of the evidence put before them. If material comes forward subsequently which goes to the issues which were resolved in such a way that the credibility of a party was rejected, then the new material may well have the effect of calling into question the conclusions of the first judge or tribunal if and when the matter is considered on appeal by the later tribunal. This issue was addressed in LD (Algeria) v Secretary Of State For Home Department [2004] EWCA Civ 804 (also referred to as Djebbar v Secretary Of State For Home Department), which addressed the so called Devaseelan guidelines (from Devaseelan v SSHD http://www.bailii.org/cgi-bin/redirect.cgi?path=/uk/cases/UKIAT/2002/00702.html[2003] Imm AR 1) , and endorsed them. The guidance relates to the treatment by a second adjudicator or tribunal. They are recorded in the judgement of Judge LJ, as he then was

""39. In our view the second Adjudicator should treat such matters in the following way.

(1) The first Adjudicator's determination should always be the starting-point. It is the authoritative assessment of the Appellant's status at the time it was made. In principle issues such as whether the Appellant was properly represented, or whether he gave evidence, are irrelevant to this.

(2) Facts happening since the first Adjudicator's determination can always be taken into account by the second Adjudicator. If those facts lead the second Adjudicator to the conclusion that, at the date of his determination and on the material before him, the appellant makes his case, so be it. The previous decision, on the material before the first Adjudicator and at that date, is not inconsistent.

(3) Facts happening before the first Adjudicator's determination but having no relevance to the issues before him can always be taken into account by the second Adjudicator. The first Adjudicator will not have been concerned with such facts, and his determination is not an assessment of them.

40. We now pass to matters that could have been before the first Adjudicator but were not.

(4) Facts personal to the Appellant that were not brought to the attention of the first Adjudicator, although they were relevant to the issues before him, should be treated by the second Adjudicator with the greatest circumspection. An Appellant who seeks, in a later appeal, to add to the available facts in an effort to obtain a more favourable outcome is properly regarded with suspicion from the point of view of credibility. (Although considerations of credibility will not be relevant in cases where the existence of the additional fact is beyond dispute.) It must also be borne in mind that the first Adjudicator's determination was made at a time closer to the events alleged and in terms of both fact-finding and general credibility assessment would tend to have the advantage. For this reason, the adduction of such facts should not usually lead to any reconsideration of the conclusions reached by the first Adjudicator.

(5) Evidence of other facts – for example country evidence – may not suffer from the same concerns as to credibility, but should be treated with caution. The reason is different from that in (4). Evidence dating from before the determination of the first Adjudicator might well have been relevant if it had been tendered to him: but it was not, and he made his determination without it. The situation in the Appellant's own country at the time of that determination is very unlikely to be relevant in deciding whether the Appellant's removal at the time of the second Adjudicator's determination would breach his human rights. Those representing the Appellant would be better advised to assemble up-to-date evidence than to rely on material that is (ex hypothesi) now rather dated.

41. The final major category of case is where the Appellant claims that his removal would breach Article 3 for the same reason that he claimed to be a refugee.

(6) If before the second Adjudicator the Appellant relies on facts that are not materially different from those put to the first Adjudicator, and proposes to support the claim by what is in essence the same evidence as that available to the Appellant at that time, the second Adjudicator should regard the issues as settled by the first Adjudicator's determination and make his findings in line with that determination rather than allowing the matter to be re-litigated. We draw attention to the phrase 'the same evidence as that available to the Appellant' at the time of the first determination. We have chosen this phrase not only in order to accommodate guidelines (4) and (5) above, but also because, in respect of evidence that was available to the Appellant, he must be taken to have made his choices about how it should be presented. An Appellant cannot be expected to present evidence of which he has no knowledge: but if (for example) he chooses not to give oral evidence in his first appeal, that does not mean that the issues or the available evidence in the second appeal are rendered any different by his proposal to give oral evidence (of the same facts) on this occasion.

42. We offer two further comments, which are not less important than what precedes then.

(7) The force of the reasoning underlying guidelines (4) and (6) is greatly reduced if there is some very good reason why the Appellant's failure to adduce relevant evidence before the first Adjudicator should not be, as it were, held against him. We think such reasons will be rare. There is an increasing tendency to suggest that unfavourable decisions by Adjudicators are brought about by error or incompetence on the part of representatives. New representatives blame old representatives; sometimes representatives blame themselves for prolonging the litigation by their inadequacy (without, of course, offering the public any compensation for the wrong from which they have profited by fees). Immigration practitioners come within the supervision of the Immigration Services Commissioner under part V of the 1999 Act. He has power to register, investigate and cancel the registration of any practitioner, and solicitors and counsel are, in addition, subject to their own professional bodies. An Adjudicator should be very slow to conclude that an appeal before another Adjudicator has been materially affected by a representative's error or incompetence; and such a finding should always be reported (through arrangements made by the Chief Adjudicator) to the Immigration Services Commissioner. Having said that, we do accept that there will be occasional cases where the circumstances of the first appeal were such that it would be right for the second Adjudicator to look at the matter as if the first determination had never been made. (We think it unlikely that the second Adjudicator would, in such a case, be able to build very meaningfully on the first Adjudicator's determination; but we emphasise that, even in such a case, the first determination stands as the determination of the first appeal.)."

15. It follows from that guidance that a finding adverse to an appellant is not an absolute bar to a subsequent claim. That is made very clear indeed in the subsequent passages in Judge LJ's judgement, which are worth setting out. I draw particular attention to paragraph 35 and the reference to Keene LJ's judgement in A v UK [2003] EWCA Civ 175:

33 "Mr Singh suggested that the effect of the guidance, dependent as he submits it is, on principles of res judicata, was too narrow, and inconsistent with the approach adopted in asylum cases, and cases where human rights considerations were in play. He referred to what we can summarise as the more apparently generous approach to second or fresh applications in four specific areas. First, he identified fresh applications which in fact were repeat applications, in which the SSHD made a "characterisation" decision whether or not the application should be treated as a fresh application leading to an appeal. The acid test whether a positive categorisation was appropriate was identified by Sir Thomas Bingham MR in R v SSHD ex p. Onibiyo [1996] QB 768:

"[The test] must always be whether, comparing the new claim with that earlier rejected and excluding material on which the claimant could reasonably have been expected to rely on the earlier claim, the new claim is sufficiently different from the earlier claim to admit of a realistic prospect that a favourable view could be taken on the new claim despite the unfavourable conclusion reached on the earlier claim."

(See also R v SSHD ex p. Boybeyi [1997] Imm AR 491.)

34 Next, Mr Singh identified those cases in which it is accepted that the first determination should be treated as a miscarriage of justice. In these circumstances, where the appellant has not been at fault, the fresh notice of refusal is issued by the SSHD, and a fresh right of appeal is created. (R v SSHD ex p. Syed Mohammed Kazmi [1995] Imm AR 73.) The third category concerned the system for certification for appeals where previous appeal proceedings had already taken place, or where repeated claims were characterised as manifestly unfounded. Mr Singh pointed out that in R (Yogathas) v SSHD [2003] 1 AC 920, Lord Hope described the concept of "manifest unfoundedness" as one where a claim was "so clearly without substance that the appeal would be bound to fail". Our attention was also drawn to R (ZL and VL) v SSHD [2003] IMLR 224 where Lord Philips MR explained that

"If on at least one legitimate view of the facts or the law the claim may succeed, the claim will not be clearly unfounded. If that point is reached, the decision maker cannot conclude otherwise. He or she will by definition be satisfied that the claim is not clearly unfounded."

35 The fourth category of cases related to fresh evidence on appeal, and the discretion to admit new evidence in the interests of justice. In his skeleton argument, Mr Singh referred to a number of authorities, but his submission can be encapsulated by a brief reference to the judgment of Keene LJ in A v UK [2003] EWCA Civ 175:

"The proper approach was to consider the wider interests of justice. This must be right both in asylum cases and in those where Articles 2 or 3 are invoked. After all, one has to consider the context in which these cases are brought. … This further evidence is credible and it is potentially significant, going much further than the material which the IAT had. I for my part am quite satisfied that the wider interests of justice do require the fresh evidence to be considered by this Court."

36 Each of the categories identified by Mr Singh is characterised by the sensitivity of the issues which are engaged. Put starkly, the wrong decision may condemn an unsuccessful appellant to persecution, torture, or death. That said, however, in our judgment the guidance given by the IAT does not overlook these disturbing realities, nor imply, let alone suggest, that adjudicators considering a fresh application in circumstances like the present should be blind to them.

37 In his submissions Mr Singh addressed particular criticism of guidelines 5 and 7. In relation to guideline 5, he suggests that on one construction, this may penalise an applicant involved in a second application, for failing to produce evidence which could have been available at the first application but was not. This is not how the guidance reads. This part of the guidance is intended to contrast the problematic issue of credibility (addressed in guideline 4) which may arise when an applicant has failed to give evidence of material known to or personal to himself and his own condition, and then seeks to add something about these matters in the course of a second application. The risk identified in guideline 4 is embellishment or fabrication. In short, its purpose is to give a warning in these broad terms: if the evidence is true, why was it not given at the first hearing? Even so, it does not automatically follow that the evidence must be untrue. The words "not usually" expressly demonstrate that the guidance is not intended to impose a credibility finding on the second adjudicator. It is however sensible to seek an explanation for the omission. One such explanation, referred to in guideline 7, may be the low quality of the representation before the first adjudicator.

38 By contrast with the "great circumspection" with which guideline 4 is concerned, guideline 5 merely suggests a degree of "caution". It is concerned with evidence for which the applicant personally is not the source. It may, for example, be expert evidence. This guideline highlights the risk of over-reliance on evidence independent of the applicant which, even if accurate at the time when it was given at the first adjudication, may have become out of date by the time of the second. This guidance is not concerned with and does not address the broad issue of credibility. It does no more than emphasise that the second application is indeed a fresh application, and that some evidence from the previous application – favourable to the applicant as well as unfavourable, - may no longer be accurate. More important, it does not preclude the re-use of objective and expert evidence the impact of which, notwithstanding the passage of time remains undiminished. What it advises is that care should be taken not to assume that it does.

39 Specific criticism is also directed at guideline 7. The objection is that its approach to allegations of incompetent representation in the first application is too restrictive. In particular Mr Singh was concerned at the requirement that an adjudicator was effectively precluded from finding that legal representation before the first adjudicator was inadequate unless that finding was reported to the Immigration Services Commissioner. If this were so, then there would be force in his criticism. In our view however, guideline 7 does no more than warn against the ease with which allegations of inadequate or incompetent representation may be made. The issue is of sufficiently broad importance for the IAT to require that cases where professional incompetence or error have been demonstrated should be reported. The guidance does not tell adjudicators that they should refuse to make such findings where they are appropriate, and equally, it is not suggesting whether and when such findings should be made. All that it is requiring is that if they are made, in the overall interests of the administration of justice in this particular and sensitive field (including those of potential applicants themselves) such findings should be reported. In our judgment, no-one benefits if they are not so reported, and the requirement that they should be does not impinge on the second adjudicator's obligation to act on findings of legal incompetence in the course of the first adjudication if such findings are justified.

40 The specific criticisms directed at guidelines 5 and 7 fail. Having analysed the guidelines as a whole, in the light of the specific criticisms, it seems to us that it would be positively disadvantageous for this Court now to attempt to rewrite any part of the guidance by expressing the same ideas in different language. We have no reason to believe that adjudicators approach this guidance as if they were construing statute or regulation, or apply it as if it were, without regard to the true merit (or otherwise) of the fresh application. The great value of the guidance is that it invests the decision making process in each individual fresh application with the necessary degree of sensible flexibility and desirable consistency of approach, without imposing any unacceptable restrictions on the second adjudicator's ability to make the findings which he conscientiously believes to be right. It therefore admirably fulfils its intended purpose."

16. On any view, the First Tier Tribunal judge had reached strong adverse findings against the Claimant, rejecting her credibility. It was appropriate that that be taken as the starting point. But a starting point is just that; it does not imply that the end point must be the same. The question is this; given the new evidence put before her, could the Home Secretary reasonably have concluded not just that she rejected the claims, but that they were clearly unfounded ? In other words, would an appeal against the new refusal be bound to fail ?
17. It is plain that the fundamental point about the evidence put before the Home Secretary after the first appeal was that of and concerning the son. The evidence fell into two parts:

i) His evidence, which went, among other matters, to the important issue of the conduct of the Claimant's husband towards her and towards him;

ii) The support given to his account by the psychiatric and psychological evidence which had also not been before the original judge. That evidence included direct medical evidence, and opinion, relating to whether the son had been subjected to violence. It could not have been available to the first tier tribunal in the form now advanced, because it depended in part on the evidence about his reaction to the failure of her original claims.

18. The Home Secretary has formed the judgement that the symptoms exhibited by the son are explicable by his disappointment at the result. That may turn out to be the explanation, but no-one could fairly argue at this stage that there could be no other explanation, and certainly could not do so when the expert opinions advanced are not to that effect. The Home Secretary simply had no evidential basis upon which she could safely and conclusively exclude the effect of earlier events on the son's exhibited symptoms and presentation. Expert psychiatric and psychological evidence cannot simply be set aside in the manner adopted by the Home Secretary, least of all when it is apparently supported by evidence of physical examination which appears to support his account of injury.
19. The First Tier Tribunal judge simply had no evidence before him from the son, or from those who have now examined him. He said in his decision that he found the case a difficult one, and much of his rejection of the Claimant's evidence turned on his refusal to accept her evidence about her husband's membership of the Basij and his use of violence upon her and their son. As he made plain, he had formed that view

"taking the case in the round."

Evidence from her son, corroborated in significant measure by expert medical and psychological evidence, would have been part of that case in the round. If the new evidence had only consisted of his statement, that might have been insufficient to require reconsideration, but once it was endorsed by independent expert evidence it required consideration, and in my judgement the claim cannot be regarded as unfounded in the section 94 sense.

20. That in my judgement is enough to dispose of the case before me. But there are three other matters which arose at the hearing which also require mention.
21. Firstly, Mr Mandalia argued that because the Claimant had given evidence about her husband's conduct and membership of the Basij, the evidence of her son added nothing, and could not make a difference. That approach by Mr Mandalia (which echoes that of the Home Secretary) is one which a moment's reflection will show is unarguable, if advanced as some rule of general application. In cases where credibility is in issue, the fact that a witness' account is corroborated by that of another witness can add to its credibility. Were it otherwise, prosecutors in criminal cases, or parties in personal injury actions, would not seek to call as many eye (or other) witnesses of events as can give relevant evidence, nor would Defendants in criminal cases advancing a defence of alibi be keen to call any supporting witnesses if they can do so. I find it concerning that so straightforward and long standing a concept as one witness giving support to another's credibility should be overlooked by the Home Secretary.
22. Secondly, I have a concern about the Home Secretary's treatment of the risk to apostates in Iran. Mr Jones referred to the Home Secretary's own current Operation Guidance Note on Iran, published in November 2011, which at paragraphs 3.8.6 to 3.8.8 and 3.8.10 contends that

"3.8.6 Former Muslims who have converted from Islam are frequently persecuted, ill treated and prosecuted for their beliefs………..Any conversion from Islam to other religions is forbidden and considered as an act of apostasy,……….

3.8.7 In recent years, the Iranian government and clerical leadership have viewed apostasy as an increasing threat to the structure of Iranian society………..

3.8.8 A letter from the Foreign and Commonwealth Office…..dated 30 April 2010 stated that " Under Iran's strict interpretation of Islam, anyone converting to another religion could face the death penalty or at least life imprisonment." Associated Press recently reported that Iran had arrested about 70 Christians since Christmas in a crackdown that has targeted grass roots Christian groups Iran describes as " hard-liners" who pose a threat to the Islamic state.

3.8.10 The Telegraph report further stated that there have been over 300 arrests of Christians in 35 cities across Iran since June 2010. Detainees are typically held in insanitary prisons, sometimes in solitary confinement, with evidence of torture and interrogation tactics being used against them on account of their faith, Excessively high bail demands, some as great as £ 18,700, see title deeds to detainees' houses being given in return for their liberty."

23. That guidance should have been taken into account in any decision by her, as Mr Mandalia accepted . It puts a notably different complexion on the level of risk endured by an apostate convert in Iran to that taken by the Immigration Judge, who relied on now rather elderly country guidance, and relied on a country of origin information report from January 2010, which suggested that there was no risk of death for apostasy. It is not clear to me why the fact that apostates are not being executed justifies a conclusion that there would be no persecution. But even if that conclusion was a proper one (and the appeal against his decision was of course unsuccessful) the Home Secretary must have been aware of the changed information, certainly by the time of the letter of 21^st June 2012. It was incumbent on her to at least have regard to it.
24. Thirdly, there is a matter closely related to the second point of concern. What appears to have impressed the immigration judge, and then the Home Secretary, is that the Claimant's conversion to Christianity was not regarded by him as genuine, and had been manufactured to assist her asylum claim. It is a dangerous thing for anyone, and perhaps especially a judge, to peer into what some call a man or woman's soul to assess whether a professed faith is genuinely held, and especially not when it was and is agreed that she was and is a frequent participant in church services. It is a type of judicial exercise very popular some centuries ago in some fora, but rather rarely exercised today. I am also uneasy when a judge, even with the knowledge one gains judicially in a city as diverse as Manchester, is bold enough to seek to reach firm conclusions about a professed conversion, made by a woman raised in another culture, from the version of Islam practised therein, to an evangelical church in Bolton within one strand of Christianity. I am at a loss to understand how that is to be tested by anything other than considering whether she is an active participant in the new church. But I accept that such judicial boldness as this judge showed does not necessarily undermine a decision in law if he does so, and his decision was not successfully appealed. But that is not the only point. There must be a real risk that if she has professed herself to be a Christian, and conducted herself as one, that profession, whether true or not, may be taken in Iran as evidence of apostasy. On the basis of the Home Secretary's now stated position, that amounts to a potentially different circumstance from that addressed by the Immigration Judge.
25. Nothing in this judgement is intended to reach any conclusion that an appeal by the Claimant against the refusal of her claim will be bound to succeed. That will be a matter for the First Tier Tribunal. Whether it does so or not is not for me to say. But is plain that it is not bound to fail, since the existence of the new evidence may make a difference. It follows that the certificate under section 94 must be quashed.
26. I invited applications for permission to appeal to be made in writing on circulation of my draft judgment. I have received none. Counsel have agreed the terms of the order which appears below.
27. The Order of the Court is that

i) the following decisions of Defendant are quashed:

a) The decision of 14th October 2011 to certify the Claimant's claim for asylum under section 94(2) of the Nationality, Immigration and Asylum Act 2002;

b) The decision of 21st June 2012 to certify the Claimant's claim for asylum under section 94(2) of the Nationality, Immigration and Asylum Act 2002;

ii) The Defendant shall pay the Claimants costs of the Claim for Judicial Review to be assessed if not agreed;

iii) There shall be public funding assessment of the Claimants publicly funded costs.