SF v Secretary of State for the Home Department

LORD JUSTICE WILSON: SF, a male citizen of Iran aged 39, who came to the UK in June 2000, applies for permission to appeal on a point of law against the dismissal by the Asylum and Immigration Tribunal (Designated Immigration Judge Reeds and Immigration Judge Brookfield) on 31 May 2006 of his appeal against the refusal of the Secretary of State, the respondent, to grant him asylum in the U.K. or permission to remain here on human rights grounds. On 20 October 2006 Laws LJ directed on paper that the application be adjourned to be heard on notice to the respondent and on the footing that, were permission granted, the substantive appeal would be heard forthwith.

The decision of the AIT was following a reconsideration of the applicant’s appeal at a hearing, at which he was represented, on 16 May 2006. There had previously been an unsuccessful appeal on his part to an adjudicator but, at an earlier stage of its reconsideration, the AIT had held that the adjudicator had made a material error of law and directed its further reconsideration of the appeal; at the second stage, namely at the hearing on 16 May, it was agreed that the tribunal should conduct a rehearing of the appeal de novo. There is no need for me further to refer to the flawed determination of the adjudicator.

It was the applicant’s case before the tribunal that he was entitled to asylum owing to a well-founded fear, if returned to Iran, of persecution by reasons of political opinion. No separate argument was addressed to the tribunal by reference to the European Convention on Human Rights.

No one could say that the tribunal failed to conduct, or at any rate to attempt to conduct, a comprehensive survey of the case. Its determination proceeds for 106 paragraphs, spread over 26 pages; and, in that there were no live questions of law canvassed before it, the determination appears to be an intricate investigation of the history placed before it by the applicant such as was said on his behalf to give rise to the well-founded fear. Nor was it the type of decision in which the tribunal alights upon particular aspects of an applicant’s story which it finds incredible and by reference to which it proceeds to reject the entire salient parts of his story. On the contrary, the tribunal picked and the tribunal chose; here accepted the applicant's account and there rejected it; and, in each case, sought to explain why it did so.

The proposed appeal is brought on the basis that the tribunal made an error of law in two principle respects: first that, contrary to paragraph 18.2 and 18.4 of the AIT Practice Direction 1/2005, the tribunal failed to take into account the determination of the Immigration Appeal Tribunal (Mr Justice Collins, President) in the case of FK (Persecution – Refugee – Political Writer) Iran[2002] UKIAT 01328, designated as Country Guidance; and second that it reached factual conclusions by reference to a legally flawed methodology.

The tribunal, which received oral evidence from the applicant through an interpreter and studied a quantity of subjective and objective written evidence filed on his behalf, reached the following conclusions upon the history which he gave:

In the case ofFK the appellant had left Iran unlawfully in July 2000, i.e. only weeks after the applicant in our case had done so. The enquiry was into how the appellant might be treated upon return. His account, which an adjudicator accepted, was that in February 2000 he had published in a newspaper an article which was critical of the state-owned company for which he was working and, thus, critical of the state itself. The editor of the newspaper had been killed. In addition to writing the article, the appellant had gone on hunger strike at the company and had produced leaflets critical of its management. As a result of such activities he had been the subject of surveillance. Although no reprisals had actually been visited upon him, he had felt the pressure increasing upon him, had feared arrest and detention and had thus left Iran. In its “Guidance” the tribunal noted that a failed asylum-seeker who had left Iran unlawfully might, upon return, be prosecuted for having done so and sentenced to imprisonment and/or a fine. Such a consequence, according to the tribunal, was a penalty not disproportionate to the offence of unlawful departure. The appellant, however, was someone who had, at the time of departure, been under suspicion as being hostile to the state and such a person would, so the tribunal explained, be regarded with heightened suspicion and would face a real risk of detention and ill- treatment of such an order as to amount to persecution by reference to political opinion.

The case of FK was not cited to the tribunal in our case on behalf either of the applicant or of the Secretary of State. Indeed we have established in the course of argument today that the applicant’s advocate must have been aware of it, she having cited to the adjudicator during the first appeal an authority which expressly follows it. As it happens Ms Weston has demonstrated, by reference to the recent decision of this court in DK Serbia[2006] EWCA Civ 1747, that, if a tribunal fails to refer to relevant country guidance, it falls into legal error even though the failure is one for which it is not responsible and indeed for which the applicant’s advocate is responsible. Nevertheless that principle obtains only when the country guidance is relevant and, unless the factual findings made in the present case can be overturned as unsustainable even in point of law, there is, in my judgment, no relevant link between the facts of the present case and the guidance given in FK. In the latter everything turned upon highly overt, seditious activities on the part of the appellant, which had, as a matter of record, occurred in the months prior to his departure and which had attracted suspicion and thus surveillance. In the present case, by contrast, the tribunal went out of its way to make clear that it did not accept the applicant’s assertions of political activity as attracting state attention in the months prior to his departure. Indeed I should add, in deference to Ms Weston’s forceful submission (which may well have some validity) that the guidance in FK is not limited to the state’s reaction to seditious activities in the period immediately prior to departure, that in the present case the tribunal also went out of its way to make clear that it did not accept the applicant’s assertions of political activity attracting state attention in the years, indeed the 18 years, prior to his departure. Although it did not refer to the decision in FK, the tribunal in my view also asked itself what we might call the “FK” question, namely whether the applicant, in the words of the tribunal, “would have a profile upon return of interest to the authorities.” And its final answer -- in paragraph 104 -- was negative.

Thus it is that the applicant can link his case with the guidance given in FK only if he can manage, within an appeal on point of law, to undermine that crucial refusal on the part of the tribunal to find proved his allegations referable to what I will call the relatively recent history.

In this regard Ms Weston launches three assaults.

Her first complaint relates to the tribunal’s rejection of any link between the applicant’s detention in 1996 and his perceived membership of the MEK. The applicant agrees that he had not in fact been a member of the MEK or even a supporter of it since 1984; his case, however, was that it was his perceived connection with it which led to his detention in 1996. As I have said, the tribunal rejected that hypothesis by reference to the fact that, as he accepted, he had never been accused during his detention of having had any connection with MEK and because after only three months he was released without, so the tribunal found, even ongoing control.

Ms Weston’s charge is that the tribunal there fell into the trap of being too logical; that repressive regimes do not necessarily act either logically or reasonably; and that in cases in the IAT such as Suleyman, (16242) 11 February 1998, the dangers of attributing rationality to oppressive regimes have been stressed. Clearly such is a factor always to be borne in mind; but, so it seems to me, one should be careful not to throw the baby out with the bath water. Logic and reason are the principal tools by which courts in every sphere strive to winnow the credible from the incredible; and it would be absurd to rule that there was legal error on every occasion when a court perceived incredibility in a history by reference to the fact that a repressive regime would, had it been true, have acted contrary to expectation. In my view the conjunction of a failure to indicate to the applicant that he was detained by reference to a perceived connection with the MEK (however irrational their disposition, would not his captors in that event have wished to extract information about its activities from him?) and his release after a relatively short period of time was an entirely adequate foundation for the tribunal’s conclusion. Indeed on the tribunal’s findings, profoundly unhelpful to Ms Weston, it was a release without ongoing control in the form of reporting requirements. The circumstances of his release thus seemed to say: “This man is of no continuing interest”.

Second, Ms Weston attacks the refusal of the tribunal to accept that in the months prior to April 2000 the applicant resumed a low level degree of political activity. The tribunal found both that the applicant, who was already by 2000 far from well, had not given a credible reason for any sudden resumption of political activity and that, in respect of the leaflets that he claimed to have prepared and distributed, he knew too little about their content to be credible in that regard. It also added, however, that, had he been under the sort of surveillance from civilians to which he had referred, his activity would likely to have been discovered. That last argument is the subject of Ms Weston’s challenge. Her argument is primarily that light informal surveillance of the applicant from a distance would not necessarily have revealed his activities. I am not sure, with respect to her, that that argument goes very far, at least in the necessary context of legal error. I think that, had I been in Ms Weston’s shoes, I might have added a second argument, namely that in this area the tribunal appears to have wanted to have things both ways, namely to find that, by reference to the surveillance, the political activity was not established and later apparently to reject -- or at least not explicitly to accept -- that there had been such surveillance at all. But, as is already clear, such was only its third reason for rejecting the allegation of political activity; and, whether such was open to the tribunal or not, the first two reasons remain in tact as a legitimate basis for the tribunal’s refusal to accept the applicant’s case.

Third and finally Ms Weston attacks the tribunal’s conclusion that the applicant’s story of why he went to Tehran in April 2000 was inconsistent with the objective evidence that there was no particular unrest there at that time. The tribunal expressly recorded that the Home Office presenting officer had submitted to it that the account of unrest in Tehran in April 2000 was not confirmed by, nor consistent with, the objective material. It is not challenged that the presenting officer had so submitted. It is therefore a fact that before the tribunal there was a debate as to whether the applicant’s account, which the tribunal records as being that there had been an “uprising” in Tehran in April 2000, was, or was not, consistent with the objective material.

It certainly seems that, by reference to the objective material which each side placed before it, the tribunal was entitled to come to the conclusion that his account was inconsistent with it. The reports relied upon by the presenting officer and in particular a long report on behalf of the applicant about conditions in Iran by Professor Joffé dated 13 May 2006 were united in speaking of a very violent demonstration on the part of the students in Tehran in July 1999, replicated, on its first anniversary in July 2000, by a student demonstration which, as a result of police tactics, had apparently again descended into a riot. The tribunal however correctly noticed that in none of the objective material before it was there any reference to unrest, still less an “uprising,” in April 2000. Nor should we forget that the professor was writing a report upon circumstances in Iran specifically referable to this applicant’s case; so one might have expected that he at least would have pointed to any significant objective evidence which confirmed what the applicant was saying about conditions in Tehran in that month.

Ms Weston is as industrious as she is ingenious. Her recent researches on the internet have revealed objective material which does indicate a degree of unrest in Tehran on the part of the students even in April 2000. Ms Weston may go slightly too far when she writes that it shows that “April 2000 was a time of crucial significance in Iran described as ‘tumultuous’ by the Special Rapporteur [of the Commission on Human Rights in Iran, Mr Copithorne]” for, in his report dated 8 September 2000, he had written only rather more broadly that “the first seven months of 2000 had been tumultuous ones in … Iran.” Nevertheless that document and other material unearthed by Ms Weston speak of a rally, albeit peaceful, on the part of several thousand students in Tehran in April 2000 and of the arrest in that month of student leaders.

It is very hard even for Ms Weston to argue that, in relation to a trawl through objective evidence on a specific point at the hearing in which the applicant’s advocate participated, the tribunal fell into an error of law in not considering further objective evidence, more consistent with his case, which could have been collected and adduced on his behalf but which was not thus collected. Even in an asylum case, there must come a point at which normal rules about the adduction in this court of fresh evidence, and the normal principles which demarcate a point of law from a point of fact, have to be observed. Had the proposed new evidence, however, gone to a point which I regard as central to the tribunal’s determination, I would have regarded it at least as arguable that consideration should be given to it in order to discern whether it undermines the tribunal’s conclusion. Were we to admit this evidence, however, all that we would discern would be that, although there was no violent unrest in April 2000 analogous to that in July 1999 and July 2000 and no “uprising” in the usual sense of that word, there was nevertheless a substantial visible student protest, to which someone in the position of the applicant might in principle wish overtly to associate himself. But it was not conditions in Tehran in April 2000 which led to the dismissal of the applicant’s appeal. It was the overall lack of credibility, as the tribunal assessed it, of his account of any political involvement on his part, real or perceived, during the last four, and indeed in effect during the last 18, years prior to his departure which lay at the heart of its conclusion that he had not established refugee status. In my view, the evidence about circumstances in Tehran in April 2000, although not at the edge, was not at the centre of its conclusion or even (to mix the metaphor) one of its lynch-pins; and the new evidence could never serve to dislodge it.

In those circumstances I would refuse permission for the appeal to be brought.

LORD JUSTICE WALL: I agree.

LORD JUSTICE PILL: I also agree.