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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
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Lord Osborne
Lord Eassie
Lady Paton
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[2007] CSIH 83
XA159/06
OPINION OF THE COURT
delivered by LORD OSBORNE
in
APPLICATION FOR PERMISSION
TO APPEAL
under section 103(B) of
the Nationality, Immigration & Asylum Act 2002
by
S.H.A.P.
Applicant;
against
SECRETARY OF STATE FOR THE
HOME DEPARTMENT
Respondent:
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Act: Forrest; Drummond Miller (Appellant)
Alt: Miss Carmichael; Office of Advocate General (Respondent)
7 November 2007
[1] The applicant,
in this application for permission to appeal under section 103(B) of the
Nationality, Immigration & Asylum Act 2002, applied for asylum in the United Kingdom on the basis of what was said to be
a well-founded fear of persecution for Convention reasons in Iran, from which country she had
come. Secondly, she sought humanitarian
protection upon the basis that, if she were returned to Iran, her rights under Articles 2 and 3
of the European Convention on Human Rights and Fundamental Freedoms would be
likely to be infringed.
[2] Her
application was refused by a letter from the Home Office dated 10
January 2005,
which is document 1 in these proceedings.
Subsequently she appealed, under the arrangements then in being, to an
adjudicator, Miss Quigley. In a decision
dated 7 April 2005, she allowed the appeal both on asylum grounds and on
human rights grounds, as appears from her determination, which is document 2 in
these proceedings. Thereafter, on the
application of the respondent, reconsideration of that decision was ordered, in
a decision dated 9 May 2005, on the grounds that: "It is arguable that the Adjudicator has not
given a Convention reason for any mis-treatment that the claimant may encounter
on return. The respondent argues that
adultery cannot form such a reason. It
is also arguable that the Adjudicator's reasons for an Article 3 finding are
inadequate." Subsequently, the Asylum
and Immigration Tribunal decided that there was indeed an error of law in the
determination of 7 April 2005 in their decision which is dated 20
December 2005. They identified the core issues for
reconsideration as being Articles 2 and 3 of the European Convention on Human
Rights and risk on return as a failed political asylum seeker. It is agreed that, in their decision, they
held that certain findings were not to be disturbed in any
reconsideration. These were, first, the
finding that the appellant was a married woman and, second, a finding that she
had commenced an adulterous relationship with a man, M.M., in about 2001. The reconsideration which had been ordered
was conducted before a single immigration judge of the Asylum and Immigration
Tribunal, Professor R.M.M. Wallace. Her
decision is dated 4 July 2006 and was to dismiss the applicant's
appeal on human rights grounds. That
aspect of the appeal based on asylum grounds, it seems, had not been insisted
in.
[3] In the
present application for permission to appeal, several grounds have been
advanced upon the basis of which it has been contended that the determination
of 4 July 2006 was flawed on account of an error or errors of law. These are specified in paragraph 5 of the
application. The motion for the
applicant was that the application should be granted, then treated as the
appeal, and the case remitted to the Tribunal for reconsideration under section
103(B)(4)(c) of the 2002 Act. It was
recognised, on behalf of the applicant that, not only had the test set forth in
Hosieni v Secretary of State for the Home Department 2005 S.L.T. 550 to be
satisfied, but, if the appeal were to be allowed as well as permission granted
to appeal, it had to be demonstrated that judge Wallace had in fact erred in
law, or otherwise given grounds for interference.
[4] The submission
made for the applicant was essentially that judge Wallace had misapprehended
the issues that she had had to determine and had ignored material relevant to
their proper determination. In
particular it was argued that her determination was misconceived, in that she
had confined her attention to two facets of the case only: (1) the video recording allegedly taken of the
applicant in the commission of adultery, and, (2) the summonses said to have
been issued shortly after the applicant had left Iran on or about 8 November
2004. It was submitted that these were
only two of several factors that should have been considered in determining the
issue of whether, were the applicant returned to Iran, there was a reasonable likelihood
that her rights under Article 3 of the European Convention on Human Rights
would be infringed. Among the other
factors that should have been considered, it was submitted, were (1) the contents
of an expert report by Anna Enayat of St. Anthony's College, Oxford; (2) evidence that the husband of the
applicant had in fact reported the applicant's adulterous affair to the
authorities in Iran with the result, it might properly be inferred, that
summonses were issued against the applicant; and (3) other evidence, particularly from the
applicant, regarding her fears as to her likely treatment were she to be
returned to Iran. The expert report was
said to be significant, as it was said to provide detailed material regarding
the treatment in Iran, under law in force there, likely to be meted out to
women who commit adultery, ranging from stoning to death to lesser penalties,
including public corporal punishment.
[5] Having
considered the decision of judge Wallace dated 4 July 2006 we have concluded that the
criticisms made of it are well-founded.
In paragraph 40 of the determination she states:
"The appellant claims to be at risk
if returned to Iran.
The appellant's claim to be at risk is based on there being two
summonses having been issued against her and a video which she claims to be in
her husband's possession".
We consider that that narrow formulation of the applicant's
case is erroneous. That case, and its
much wider scope, can be seen from what is set forth in the background and
evidence in the appeal described in paragraphs 7 and the following
paragraphs of the determination. Having
narrated the numerous points set out in that part of the determination, the
judge appears to us then to ignore all them, save the points referred to in
paragraph 40. In paragraph 44 of her
determination the judge concludes that the video referred to was "the only
evidence whereby the appellant could be prosecuted in Iran." By so saying, in our opinion, the judge
reveals that she has failed to take into account the material in the Enayat
report concerning the proof of adultery through "the knowledge of the judge",
which is understood to be the judge's evaluation of the totality of the
evidence before him, including circumstantial evidence. Plainly there is also ignored the possibility
that the applicant's husband might give direct evidence of the adultery and the
possibility that a confession of adultery might be extracted from the applicant
by the authorities in Iran by unacceptable means such as torture, which the
Enayat report considers is a possibility.
In this connection we were referred to paragraph 1.2 of the report on
page 3 and paragraph 4.2 on pages 33-35.
[6] In all these
circumstances we shall grant permission to appeal and allow the appeal,
remitting the case to the Asylum and Immigration Tribunal for
reconsideration. We shall also make a
direction under Rule 31(4)(b) of the Asylum and Immigration Tribunal (Procedure)
Rules 2005 to the following effect: (1)
the findings that the applicant is a married woman and that she commenced an adulterous
relationship with a man M.M. in about 2001 should not be disturbed; (2) the reconsideration should embrace
consideration of all the circumstances disclosed in the applicant's evidence,
including, in particular, the contents of paragraphs 13 to 16 of the decision
of judge Wallace and (3) the reconsideration should have regard to the whole
contents of the Enayat report dated 24 May 2006.
