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Cite as: [2006] UKAIT 37, [2006] UKAIT 00037

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AS (Appeals raising Articles 3 & 8) Iran [2006] UKAIT 00037

ASYLUM AND IMMIGRATION TRIBUNAL

Date of hearing: 14 March 2006

Date Determination notified: 18 April 2006

Before

Mr C M G Ockelton, Deputy President

Mr G Warr, Senior Immigration Judge

Between

AS	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the Appellant: Mr S Chelvan of Counsel instructed by Powell Spencer & Partners Solicitors

For the Respondent: Mr P Deller, Home Office Presenting Officer

DETERMINATION AND REASONS

In a Human Rights appeal, an immigration judge should deal with each relevant and plausible human rights Article that is raised and indicate at the conclusion of the determination on which Article or Articles the appellant succeeds. Where an appeal is allowed under Article 8 that does not preclude an appellant seeking an order for reconsideration on the basis that the judge erred in law in not allowing the appeal under Article 3 also. In general a longer period of leave will be conferred and settlement will be achieved more readily under current Home Office policy where an appellant succeeds under Article 3 as opposed to Article 8.

The appellant is a citizen of Iran born on 21 August 1979. He entered the United Kingdom on 14 March 2005 on a forged passport. He claimed asylum on 20 March 2005. This application was refused on 17 May 2005. The appellant appealed under Section 82 of the Nationality, Immigration and Asylum Act 2002 and the matter came before an Immigration Judge (Miss P Clough) on 5 August 2005 when the appellant was represented, as he was before us, by Mr Chelvan.

The appellant's case before the Immigration Judge was that he would be persecuted in Iran because of an adulterous relationship with a Miss GS and that returning him to Iran would engage Articles 2 and 3 of the European Convention on Human Rights.

At the hearing before the Immigration Judge both the appellant and Miss GS gave evidence. There was a concession at the outset of the proceedings that the child born to Miss GS had been fathered by the appellant. We shall refer to the husband of GS as F. and the child of GS and the appellant as M.

The Immigration Judge sets out her findings in the following concluding paragraphs of the determination as follows,

13. "The appellant's evidence is that he was a minicab driver. He met Miss GS … in March or April 2001. He met her through driving her in his cab. They began an illicit relationship. The appellant's family sought GS's hand in marriage, but was refused because the appellant was younger than GS, because of his employment and because he was less educated than GS. Two weeks after this failed application the appellant was stabbed on his right arm by a man who told the appellant to leave GS alone. The appellant's father called the police. The appellant made a complaint to the police but did not reveal the reason for the attack. This was because he knew GS was promised to her paternal cousin by her father. After this the appellant and GS continued to meet in secret. In May 2003 GS discovered she was pregnant. They unsuccessfully sought an abortion because they could not provide documentation of their marriage. They decided the only solution was for GS to marry her cousin.

14. The marriage duly took place and the appellant did not have any contact with GS until about February 2006 when she came to the appellant's home with their child in the middle of the night. She explained she had been repeatedly beaten by her husband, whose second wife she was, and that she had asked him for a divorce, but he had refused to consent to one. The appellant said GS could not stay in his home but he would take her to his mother's house. As they were going to his car, the appellant was attacked by a man from behind. GS shouted "Don't do it F". The appellant realised this was the appellant's husband. They managed to escape and went to the appellant's father's house outside the city.

15. GS's husband is an officer in the Iranian organisation known as Etelehad. The appellant feared for both of them if they were caught because of the husband's influence. From his father's house the appellant and GS went to another part of Shiraz until the situation calmed down. From there, they went to his cousin's. They remained there for two weeks when they heard the police sought them. They moved to Oromia near Turkey, but decided they had to leave. The appellant's cousin arranged for an agent to take them to safety. They travelled with an agent and under his direction. They were arrested leaving the UK and this prompted the asylum claim.

16. After hearing from the appellant and GS, I find their claim to have had an illicit relationship from 2001 to be credible and that they are the parents of the child, M, born on 1 January 2004. This is because of the manner in which they gave evidence and because GS's claim to have been ill treated by her husband is corroborated by medical evidence.

17. I had an impressive Report from Dr Enayat regarding the legal consequences of the appellants' actions. I accept from the content of this Report that the appellant is at risk of being charged with adultery or of having an illicit relationship with GS. The appellant, himself, fears that he will be liable to a sentence of flogging. This punishment is not behaviour serious enough to engage Article 3. In addition, I do no consider the evidence before me supports a finding that Article 2 would be engaged on return.

18. It was argued that the appellant formed part of a particular social group, in that he was a member of a group that was disadvantaged, namely those who were part of a group who transgressed the strict Islamic law on sexual relationships outside marriage. I do not find, having considered the case law before me, in particular, TB (PSG – Women) Iran and other authorities to which I was referred, that because the Iranian Penal Code proscribes adultery and illicit sexual relationships (that is, sexual relationships outside marriage) persons who transgress the law form a particular social group. The Iranian Penal Code is clearly based on an Islamic "view" of morals. That the Iranian Penal Code has its ultimate origin in a religious code does not make transgressor of it fall within one of the Refugee Convention groups. In particular prosecution for breaching the Code does amount to persecution of a person on account of their religion.

19. I find that the appellant has not proved he will suffer persecution for a Convention reason or that he will be treated in a way that will engage Articles 2 or 3 or the 1950 Convention.

20. However, there is another factor to be considered here. The appellant and GS are parents of a child born to GS while married to another man. The law regarding a child born of an illicit relationship is discussed at 1.8 of Dr Enayat's Report. It is clear under Article 1162 of the Civil Code that a child born out of wedlock shall not belong to the parents who had an immoral connection. How this leaves the legal position of M is unclear, but I consider, if returned with his parents his paternity will be challenged and his true paternity will be revealed. I consider there is a real risk that the child would be removed from the care of both parents and raised by the State. The child and his parents now have a family life, in that they are living together as a family. I find that removing the appellant or GS and the child either together or singly to Iran, will run a real risk of destroying that family, either in Iran or elsewhere, forever. As such, I consider this risk falls within the very unusual circumstances discussed in Huang so as to engage Article 8."

The Immigration Judge accordingly dismissed the appellant's asylum appeal, refused the appeal under the European Convention on Human Rights under Articles 2 and 3 but allowed the appeal under Article 8.

An application for an order of reconsideration was made on 9 September 2005 and the grounds were settled by Mr Chelvan. It was submitted that the Immigration Judge had erred in finding that the ill-treatment that the appellant would expect by being lashed would not breach Article 3 and reference was made to HA (Iran) [2003] UKIAT 00095 CG and HS (Iran) [2005] UKAIT 00120.

On 19 September 2005 the Tribunal made no order on the application on the basis that the appellant's appeal had been allowed under the European Convention on Human Rights and the appellant did not have separate rights under each Article.

The application was renewed before the High Court. Neuberger LJ accepted that if the consequences for the appellant of a successful appeal under Article 8 were in all ways as good as or better than the consequences would have been if he had succeeded under Article 3 then the decision of the Tribunal to refuse to order reconsideration must be correct. Paragraph 3 of the reasons reads as follows:

"However, if the appellant would have been better off in a practical and significant way had his case under Article 3 been accepted, then I think it must be at least strongly arguable that he could have been permitted to appeal the adverse decision under Article 3."

Mr Chelvan told us that no arguments were being pursued in relation to the refusal of the asylum claim. He pointed out that the appellant had not been granted discretionary leave and accordingly the appeal was not deemed abandoned as had been the case in HN (Lebanon) [2004] UKIAT 00322. The appellant's appeal arose under Section 82 in respect of the decision to issue removal directions and the relevant ground was set out in Section 84(1)(g) –

"That removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdom's obligations under the Refugee Convention or would be unlawful under Section 6 of the Human Rights Act 1998 as being incompatible with the appellant's Convention rights."

Section 86(2) of the 2002 Act required the Tribunal to determine "any matter raised as a ground of appeal…" Counsel referred us to documents from the Home Office website on discretionary leave and humanitarian protection which had been introduced on 1 April 2003 following the abolition of exceptional leave on 31 March 2003. A person who qualified for humanitarian protection and was granted leave on or after 20 August 2005 should be granted leave for five years whereas the duration of grants of discretionary leave in cases arising under Article 8 would be three years – see paragraph 5.1 of the Home Office policy note on discretionary leave.

On a true construction of the relevant sections of the 2002 Act a separate decision was required in respect of each Article of the European Convention.

Mr Deller acknowledged that in paragraph 17 of the determination there was a gap. The Immigration Judge had not made a finding as to whether the appellant's fears were well-founded. The determination had been promulgated on 1 September 2005 but at the time of the hearing a successful appeal under Article 3 would not have attracted a grant of five years humanitarian protection. There might be circumstances where an appellant would have a right to have a status determined but following the Immigration Judge's decision removal would not take place.

The appeal had to be based upon a ground. The Immigration Judge was not determining a lot of little appeals. Such a construction would require a judge to deal with each and every article relied upon by an appellant under the 1950 Convention. There was no differential benefit in existence at the time when the Immigration Judge was considering the case. The Immigration Judge in the instant appeal had done all that she was required to do in allowing the appeal under Section 86.

Counsel submitted that at the time of the promulgation of the decision there had been a difference in the consequences flowing from a successful outcome of an appeal under Article 8 as opposed to Article 3. There was no gap in paragraph 17 of the determination and the findings of fact had been quite strong. Counsel referred us to paragraph 2.4 of the Home Office Note on Humanitarian Protection. In particular Counsel referred us to the following extract:

"There are two types of case where a person whose asylum claim is unsuccessful may qualify for humanitarian protection by virtue of the application of Article 3. Namely:

The treatment feared amounts to persecution but is not for one of the five Convention reason.

The treatment or punishment is in the narrow category of actions which are of a severity and nature to amount to Article 3 treatment but not to amount to persecution – for example, where the actions feared do not have a sufficiently systemic character to amount to persecution. As the Tribunal noted in Kacaj, few cases are likely to fit this description."

It was submitted that the case fell within the second of the two bullet points. In paragraph 6 of the Home Office Policy it was clear that leave on humanitarian protection grounds should be granted for a period of five years.

At the conclusions of the submissions we reserved our decision. It appears clear to us from the terms of paragraph 17 of the determination that the Immigration Judge accepted the expert's report and the conclusion that the appellant was at risk of being charged with adultery or of having an illicit relationship with GS. Although the paragraph is not as clear as it might be it can only sensibly be read in the way contended for by the appellant, i.e. that the Immigration Judge accepted that the appellant would be punished in the way that the expert had described in her report – one hundred lashes for any connections specifically with adultery or ninety nine lashes for immoral relations.

In HA (Iran) [2003] UKIAT 00095 CG the appellant had been sentenced to a hundred lashes and then death by stoning having had an adulterous relationship with a divorced woman. The Adjudicator had allowed the appellant's appeal on asylum grounds and had also allowed the appeal under Articles 2 and 3 of the European Convention on Human Rights. The Secretary of State did not contest on appeal the decision under Article 3. The Tribunal reversed the Adjudicator's decision to allow the appeal on asylum grounds.

In HW (Iran) [2005] UKAIT 00120 the Tribunal considered the risks on return for homosexuals in Iran. The Tribunal found at paragraph 142 that there was a real risk that the appellant would be found guilty and sentenced to a significant prison sentence and lashes where he would again be exposed to ill-treatment including ill-treatment amounting to being persecution or other serious harm by reason of his homosexuality. In addition he was at real risk, in the view of the Tribunal, of serious harm whilst in detention pending charge and trial.

It will be observed that neither of these authorities is precisely in line with the case before us. Nevertheless, apart from arguing that there was a gap in paragraph 17 of the determination, Mr Deller did not draw our attention to any authority to the effect that Article 3 would not be engaged in this case. We find that the Adjudicator erred in law in concluding that the punishment would not be serious enough to engage Article 3.

In support of his submission that the appellant is entitled to pursue his appeal under Article 3 notwithstanding his success under Article 8, Counsel relies on HN (Lebanon) [2004] UKIAT 00322. In that case the Adjudicator had dismissed the appellant's appeal under the Refugee Convention and under Article 3 but had allowed the appeal under Article 8. The appellant had sought and had been granted permission to appeal to the Immigration Appeal Tribunal in respect of the asylum and Article 3 issues. This indicated that the Tribunal had accepted the argument that Article 3 and Article 8 gave rise to separate issues and separate appeal rights. Of course the argument in that case did not turn on the point which now arises for decision.

A right of appeal must be brought against an immigration decision under Section 82 of the 2002 Act. There is no dispute that there was an immigration decision in this case. Under Section 84 an appeal must be brought on one or more of the grounds set out and it is agreed that the relevant sub-paragraph is Section 84(1)(g). In this case we are concerned with the words "would be unlawful under Section 6 of the Human Rights Act 1998 as being incompatible with the appellant's Convention rights". Counsel also draws our attention to Section 86 which requires the Tribunal to determine under Section 86(2)(a) "any matter raised as a ground of appeal…".

Counsel points out further that in Section 6 of the Human Rights Act it is made unlawful for a public authority "to act in a way which is incompatible with a Convention right". The Convention rights are set out in Schedule 1 to the 1998 Act and include different rights, for example those under Articles 3 and 8.

Mr Deller submits that it is not right to construe the legislation as giving rise to a multiplicity of appeals.

We note that in Section 8(1) of the Human Rights Act 1998 it is provided that:

"In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate."

In Section 87 of the 2002 Act where an appeal is successful the Tribunal is given power to make a direction "for the purpose of giving effect to its decision". Section 87(2) provides that "a person responsible for making an immigration decision shall act in accordance with any relevant direction under sub-section 1."

It is clear that different consequences flow from a successful human rights appeal where the ground which persuades an Immigration Judge to allow the appeal is raised under Article 3 as opposed to Article 8. Simply as a matter of practicality and common sense, we cannot see how effect can be given to a decision unless it is clear upon which basis it was reached. While it is not necessary or indeed desirable for directions to be given the appropriate judicial remedy in the case of the Asylum and Immigration Tribunal is simply to indicate the Article or Articles upon which the appellant succeeds. It will be assumed that the Secretary of State will apply the appropriate policy. The appellant would have his remedy elsewhere if the Secretary of State does not do so.

We do not accept this construction gives rise to a multiplicity of appeals. The majority of cases will turn on Articles 3 and 8. The Immigration Judge will need to deal with any other Article which is plausibly raised.

On the Immigration Judge's findings of fact, and in the light of the Tribunal authorities which we have cited, the judge erred in law in failing to allow the appeal under Article 3. In answer to Mr Deller's point about the Home Office policy not being in force at the date of the Immigration Judge's hearing, we have to consider the position today as we have found a material error of law. There is clearly a difference in treatment for those who succeed in appeals under Article 3. Not only will they be eligible for five years humanitarian protection (as opposed to three years discretionary leave) but they will be eligible to apply for indefinite leave to remain having completed five years humanitarian protection. By way of contrast, a person will not normally become eligible for consideration for settlement or indefinite leave to remain until they have completed six years of discretionary leave – see paragraph 7 of the Home Office Policy. Anyone granted discretionary leave will accordingly have to have at least one interim review before they become eligible for consideration for settlement.

There are accordingly at least two main benefits flowing from a successful outcome in the case of a human rights appeal based on Article 3 as opposed to Article 8. In general a longer period of leave will be conferred and in general settlement will be achieved more readily.

For the reasons we have given the Immigration Judge materially erred in law. Accordingly, we substitute the following decision:

The asylum appeal is refused.

The human rights appeal is allowed under Articles 3 and 8.

Signed Date 10 April 2006

G Warr

Senior Immigration Judge