MH (Iran) v Secretary of State for the Home Department

The applicant, a woman of Iranian nationality aged 43, applies for permission to appeal against the order of the Asylum and Immigration Tribunal dated 31 May 2007. The tribunal had been conducting a reconsideration of her appeal against the decision of the Secretary of State, by letter dated 6 January 2005, to refuse her claim for asylum. Upon the reconsideration of the appeal, as indeed upon the initial, flawed, consideration of it, the determination was to dismiss it. The applicant contends that there was an error of law in the determination dated 31 May. Her application for permission to appeal to this court comes before us, on a without notice basis, by the written direction of Sir Henry Brooke dated 24 September 2007. He had addressed the applicant’s home-made grounds of appeal and, in making his direction, suggested that it would be in her interests to be represented at this hearing. In the event the Bar Pro Bono Unit agreed to arrange for her representation and, at very short notice, Mr Dunlop took the instructions, mastered the detail, filed a well-focussed skeleton argument and has attended before us today. He deserves as much thanks and praise from this court as are due to him from the applicant herself.

Before the tribunal which conducted the reconsideration in May 2007 the applicant found herself representing herself, albeit through an interpreter, in highly unfortunate circumstances. The case had first come before that tribunal in March 2007, when she had been represented by an officer of the Refugee Legal Centre. There had come a point in that hearing when the officer had sought an adjournment in order to place before the tribunal substantial further evidence on the applicant’s behalf; and, making directions for the filing both of a further witness statement on the part of the applicant and of an addendum expert report, the tribunal adjourned the matter until 21 May. On that day the officer from the Refugee Legal Centre again attended the hearing with the applicant but explained that, as a result of work pressures, he had been unable to comply with either of the directions. The tribunal then refused his application for a further adjournment, as a result of which the applicant withdrew her instructions from him. So he withdrew and the applicant launched into a representation of herself at the hearing. When at an early juncture she sought an adjournment in order to obtain alternative representation, her application was refused and so the hearing continued on the basis of the applicant’s representation of herself. In the event the tribunal declined to find the applicant to be a credible witness for various reasons; and it may be that in the end its collection of those reasons will sound the death knell for her appeal to this court. Nevertheless in my view (and, so my Lord tells me, in his) the appeal is arguable and permission should be given for it to proceed. Let me explain as briefly as possible why I have reached that view.

The applicant, together with her husband and son, flew from Iran to the United Kingdom in November 2004. All three of them applied for asylum and, upon refusal in January 2005, all three of them appealed. In their appeals to the adjudicator who conducted the initial, flawed, appeal, they put forward various reasons why, if returned to Iran, they would be likely to face persecution for a Convention reason; and there is no escape from the fact that various of those reasons have been unchallengeably found to be false. But even at that early stage the adjudicator identified, as being the first of the “essential parts” of their case, the applicant’s activities as an authoress in Iran. She alleged that she had written a book called “The Model…” about a woman who had defied the instructions of her Iranian father by becoming a model, indeed a model who appeared semi-naked or perhaps even virtually naked in strip clubs and elsewhere; that the Iranian government had substantially censored the book, including the picture of a woman on the cover, but, subject thereto, had permitted its publication; that her publisher in Iran had published it a month or two after her flight to the United Kingdom; that it had been very popular; that, both in its apparent approval of a woman’s display of her near naked body and of her defiance of her father, the book was likely to attract state disfavour as being corrupting Western propaganda or, in the words of her expert, “lewd and un-Islamic”, perhaps particularly when it proved popular; that initial government authorisation was no guarantee against later objection; and that, at the time of the hearing of that first appeal she did not know whether the state, which alone can authorise a second edition of a book, would authorise it. The applicant, however, went further. She alleged that she had written a second book inherently provocative to the Iranian state, namely “The Refugee Women” about women who fled from Iran and sought refugee status in the West, being indeed based on the applicant’s own experiences when unsuccessfully seeking asylum in Holland between 1998 and 2002. Her evidence was that her publisher had told her following her flight to England that the Iranian state had banned her second book.

It is highly arguable that, were the applicant to have established her assertions in these respects, she could have made out her claim for asylum. The flaw in the initial adjudication was in particular in its failure accurately to address the applicant’s case in that regard. In particular the adjudicator had quoted the applicant as claiming that, in relation to the second book, she awaited the states decision as to whether to allow it to be published, whereas she had alleged to him that she understood that it had by then been banned. When in December 2006 a senior immigration judge directed a full reconsideration of her appeal, albeit not of the appeals of her husband and of her son, it was upon the basis that the adjudicator had failed accurately to set out her case and that there needed to be proper findings made in relation to her evidence in that regard.

The need for reconsideration was thus in particular the need for a proper appraisal of the applicant’s evidence about the content of her books, the state of Iran’s reaction to them and, crucially, the likely consequences of them for her treatment in the event of her return there.

Before the tribunal in May 2007 the applicant adhered to her case about the books and added one fresh feature, namely that, whereas before the adjudicator it had been unclear whether a second edition of “The Model…” would be permitted, she had since learnt that it had not been permitted. If true, that evidence would presumably have strengthened her case.

In the event the tribunal declined to accept a substantial part of what the applicant said about the books. They did not question that she had written the two books, nor that the first had been published in Iran shortly after her flight to England. But there the tribunal’s acceptance of her account ended. Crucially the tribunal declined to find that the first book had sold well. On the contrary it found positively “that it did not sell well”; and from that positive finding, critical further findings or conclusions were made. The first, not actually a positive finding, was that the tribunal did not accept that the Iranian state had refused to license a second edition. The tribunal said, confusingly but very possibly reflecting confusion in the oral evidence given to it by the applicant, that “the publishers” had refused the second edition and also that the Iranian state had refused a licence for the second edition. The tribunal commented on that evidence in the following way:

“We are not in a position to say why the publishers refused a second print run. It could have been, of course, that according to [the applicant’s] own evidence, it was languishing in the sales rankings. We do not accept that this was because they wished to prevent publication on the grounds that they disapproved of its contents...”

There the tribunal seems to have run together the alleged refusal of the publishers to publish a second edition of the first book and the alleged refusal of the state to license a second edition. At all events, looking at it broadly, the tribunal clearly refused to accept that the state had declined a licence for the second edition because of its disapproval of the book; and the tribunal speculated that the much likelier explanation for the lack of a second edition was the poor sales of the first. But the matter does not end there. When the tribunal came to address the applicant’s allegation that the second book had been banned, it declined to accept that allegation and suggested instead that the reason why the second book had not been published in Iran was, again, that the first book had not sold well.

Thus the collapse of the applicant’s case for asylum before the tribunal was substantially founded upon its positive conclusion that, surely contrary to the applicant’s assertion that it “has been very popular since it was published”, the first book “did not sell well”. Whence did the tribunal obtain the evidence upon which that finding was based? It is clear from what I have already quoted that the tribunal understood the applicant’s own evidence to be that the first book had been “languishing in the sales rankings”. That understanding on the tribunal’s part follows from its earlier recital of her oral evidence as follows:

“She said that she had checked on Google and found that her first book position was 12,723 and she was not sure if this was the sales ranking.”

What, by paragraphs 1 and 2 of the suggested fresh grounds of appeal, Mr Dunlop would wish to press upon the full court is that the edifice for the conclusion that the first book had sold badly, with the resulting collapse of the applicant’s entire case for asylum referable to the books, was constructed on so slender a foundation as to amount to an error of law. The applicant, says Mr Dunlop, visits Google, finds that the number 12,723 has been assigned to “The Model…” and is unsure whether such was the sales ranking. This inconclusive and equivocal evidence, complains Mr Dunlop, then gets reorganised by the tribunal into an assertion that it was the applicant’s own evidence that the book was “languishing in the sales rankings”. Such, of course, was prima facie inconsistent with her evidence, earlier quoted by the tribunal, that the first book had been “very popular”. Far too much significance, submits Mr Dunlop, is attached by the tribunal to the number 12,723, of which the applicant herself had disclaimed any clear understanding. Even if such was the sales ranking, was it open to the tribunal (asks Mr Dunlop) to conclude that it was so obviously a sign of poor sales as to justify the domino-like collapse of the applicant’s case for asylum referable to the books? Mr Dunlop’s own visit, for example, to the Amazon website indicates that even Alan Hollinghurst's recent Booker-prize novel, namely “The Line of Beauty”, widely discussed and presumably widely bought, has a ranking in the United Kingdom of only 14,952.

Recognising, as I do, the difficulties for the applicant attendant upon the general criticism of her credibility and upon the fact that her need is to find an error of law in the tribunal’s treatment of the evidence, I consider that the appeal is fit to go forward and should collect our permission.

I agree.