Tayebi v Secretary of State for the Home Department

This is an appeal from the decision of the Immigration Appeal Tribunal dated 12 July 2002 in which this appellant's appeal against the decision of the adjudicator in this case was dismissed.

The background is that the appellant, who is an Iranian national, came to this country overland on 21 January 2000 from Iran. He claimed asylum on 23 January 2000. The basis of his claim for asylum was that if he were forced to return to Iran he would be subjected to persecution by reason of his beliefs, particularly as to freedom of speech. That was based upon the treatment that he had received in the months before he left.

The appellant was an English graduate of the Islamic Asad University of Shiraz. Whilst a student he had undoubtedly, as found by the adjudicator, engaged in discussions in which he advocated freedom of expression and freedom of education, and voiced his views that Iranian students were oppressed. After his graduation he taught at an institute which was attached to the University of Shiraz and continued in his discussions with his students to advocate freedom of expression, particularly within academic institutions and in academic disciplines. As a result of his outspokenness he came to the attention of the Islamic Committee of Students who regarded his activities as political and anti-government. On a number of occasions it warned him to behave, and on one occasion he was persuaded to sign a written undertaking that he would refrain from raising political issues in the course of his teaching.

However, the appellant did not comply with that undertaking. He was ultimately approached by members of the Etelaate, an organisation which forms part of the security network. He was effectively arrested and taken to accommodation where he was physically abused, beaten, blindfolded and questioned. A pre-prepared confession was put before him which he refused to sign. He was warned that he was risking his life and was then detained.

In his first application for asylum he said that he was thereafter starved, but in evidence (which was accepted by the adjudicator) he subsequently said that he had gone on hunger strike. The result was that he had ultimately to be taken to hospital, where he recovered.

He was then seen not by the Etelaate but by the representatives of the Islamic Committee of Students who asked him to sign a paper again which contained similar undertakings to the ones he had already given as a result of which he could be released. The paper included a statement that he would not be allowed to teach any more and a requirement that he should sign on at a police station weekly. Under pressure he signed that paper. He was released. He went to his home. He did not, as he should have done, sign on at a police station weekly. There is no indication that there was any attempt to arrest him as a result of that, although his evidence was that there had been visits from the authorities on some occasions.

His house had been searched. A satellite dish, books, videos and notes had been taken whilst he was in detention.

After about two months of hiding he decided to leave Iran. It was in those circumstances that he came to this country.

The Secretary of State, having considered his claim for asylum, refused it on 29 January 2001. He appealed to the adjudicator whose decision was dated 10 January 2002. In his decision the adjudicator essentially accepted the evidence of the appellant but stated that the fact was that the only evidence which could amount to persecution related to the consequences of his outspokenness while teaching. The ban on his teaching would mean that he would no longer be in a position which would bring him to the attention of the authorities, there being no other reason for his being of interest to the authorities. All the evidence established that he was cleared of any then political activity of interest to the authorities when he was released from detention.

He appealed to the Immigration Appeal Tribunal which upheld the adjudicator's decision for the same reasons.

The appellant now appeals to this court. Mr de Mello on his behalf has made it plain that the ground upon which the appeal is based is the issue of principle raised by the ban on the appellant's ability to teach if he were to be returned to Iran. The issue of principle is put by Mr de Mello on the basis that it would be persecution to deprive the appellant of his right to teach. He wishes to teach and he has all the qualifications required for the teaching profession.

On behalf of the respondent it is pointed out that this is not an issue which has been raised previously and accordingly has not been considered by the Secretary of State or by the adjudicator or by the Immigration Tribunal. Accordingly there are no facts found upon which any judgment could be made as to whether or not the arguments of Mr de Mello could justify the allowing of this appeal.

In my judgment, the respondent is correct. In order for the appellant to be able to succeed in the argument that Mr de Mello puts forward, he would have to establish that the ban on his being permitted to teach would have such profound effects on the appellant as to amount to persecution under the Geneva Convention or, as the authorities stand at present, ill-treatment amounting to a breach of Article 3 of the European Convention on Human Rights. That will be a significant evidential burden for the appellant. It needs to be considered on the basis of evidence produced by him as to the effects of such a ban on his ability to earn a living, and indeed an examination of what in truth would be his intentions or desires were he to be returned to Iran. None of those matters have yet been considered by any of the fact-finding tribunals which have been concerned with this case.

The respondent is content that this matter be remitted appropriately for consideration of the issues raised by the arguments of principle put forward by Mr de Mello. On that basis I would make no order on the appeal and remit it to the tribunal for reconsideration.

LADY JUSTICE HALE: I agree.

THE LORD CHIEF JUSTICE: I also agree.

THE LORD CHIEF JUSTICE: Mr de Mello, we could not make a final wasted costs order without letting your solicitors put forward any contentions they want to and being separately represented if they wish. But if that course is to be adopted, it will result in additional costs being wasted over and above those that have already been wasted. On the other hand, I am bound to say that when I looked at the papers for the first time it struck me as an error of judgment at any rate on the part of those who instructed you to give the response to this approach which was made by the Treasury Solicitor.

So without expressing any final view, what I was considering with my Lady and my Lord was that the appropriate course here was to make a prima facie order, or a conditional order, giving those who instruct you the right to make representations if they wish to do so, in the sum of £500 on the basis that costs were incurred unnecessarily; grant you your legal aid taxation; but not to include those who instruct you after the date of the Treasury Solicitor's letter of 12 December 2002, but allow them to have their costs up to 12 December 2002 (perhaps the better date is 14 December 2002 so as to give them an opportunity to consider that letter). The right of those who instruct you to intervene against that order should be within three weeks from today. Anything you wish to say about that proposed course?

MR DE MELLO: No.

THE LORD CHIEF JUSTICE: Mr Patel, have you anything to say about that?

MR PATEL: My Lord, no. Thank you.