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

There were listed before the court this morning two appeals against decisions of single immigration judges of the Asylum and Immigration Tribunal (“the AIT”) upon what is now called a reconsideration, a process which is part of the streamlined asylum appeal system enacted by the Asylum and Immigration (Treatment of Claimants et cetera) Act 2004. In one of the cases, BR, the Secretary of State has conceded that the appeal is good and a consent order has been made. I mention the fact that the two were to be heard in order to introduce a little of the procedural history. That is a convenient course because the matters we have to decide this morning have been, to a considerable extent, addressed in a judgment of Buxton LJ in March of this year when both cases were live.

What happened very briefly was this. In both of these cases permission to appeal to this court was granted by a Senior Immigration Judge of the AIT. By paragraph 21(7)(iii) of CPR Practice Direction 52, a Notice of Appeal should have been filed in this court within 14 days of the appellant being notified of the grant of permission. In both cases, however, the appellants’ advisers were considerably out of time and the notices were very late.

Accordingly, the two cases were listed together for hearing of the necessary applications to extend time for the filing of the appellants’ notices, and so that the court might give guidance as to the correct approach to such delay in cases of this kind. Pursuant to directions given by myself, they were listed on the basis that if the court granted an extension of time in either or both cases, the substantive appeals would be heard on another date. The extension of time issue thus came before Buxton, Rix and Moses LJJ on 13 March 2007. The court decided to extend time in both cases and gave guidance as to the position to be adopted where the AIT has granted permission but there ensues delay in filing the appellant’s notice.

I need not with respect set out the guidance, and it is convenient to turn to what Buxton LJ said about the case that survives for our determination this morning, which is that of MD:

“MD's claim to asylum was based on his alleged membership of an organisation called UFIN. He also had passed though various tribunals, his claim having been originally rejected by an Adjudicator in January 2005, MD's evidence being found not to be credible. However, in February 2006 the AIT ordered reconsideration. That tribunal accepted that it was for the Adjudicator to make findings as to the applicant's credibility, but criticised the Adjudicator for not having addressed his mind to what purported to be extracts from the UFIN website showing MD as secretary of UFIN. The reconsideration panel went on to refer to a previous decision KM (Opposition activities-UFIN) Iran [2004] UKIAT 00329, which accepted that membership alone of UFIN would not put a claimant at risk, ‘but, if on the facts of a particular case, it was shown that there was a reasonable degree of likelihood that an applicant had engaged in opposition activities in Iran, whether on behalf of UFINor any other party, it was accepted that those activities were capable of giving rise to a well-founded fear of persecution.’ The AIT therefore concluded that:

‘In these circumstances we consider that there was a material error of law by the Adjudicator in not dealing with that single issue [ie, the presence of MD on the UFIN website]. We propose, therefore, to adjourn the matter for reconsideration on that one issue. At the Tribunal hearing the adjourned hearing will have to consider whether or not the Appellant's photograph did, in fact, appear on the UFIN website and, if so, the consequences thereof. All the other findings of fact by the Adjudicator in this case will stand.’

“That apparently modest agenda elicited from Immigration Judge Walters a 79 paragraph Determination, promulgated on 19 April 2006, delivered after what was in effect a complete rehearing, though subject to the findings of lack of credibility made in January 2005. The IJ rejected as a fabrication MD's claim before him to have been appointed Vice-President of UFIN, but held that in any event that was irrelevant to any prospect of persecution, since objective evidence showed that the Iranian authorities treated UFIN more as a subject of ridicule than as anything that they needed to worry about. The LJcontinued at 70 and 72 of his Determination:

‘[70] I am prepared to accept and note that the respondent has conceded, so far as the video cassette is concerned, the appellant has attended organised meetings, demonstrations, televised interviews, and given speeches all of which may have been the subject .of public broadcast to Iran. I accept that he may be involved in a magazine known as Ashena. I am prepared to accept that he has demonstrated outside the Iranian Embassy in protest at Iranian Presidential elections and that, because he took photographs, he was stopped by the Metropolitan Police, had his mobile telephone examined, and was questioned. None of these issues has been disputed none of these issues relates to or is otherwise relevant to any issue remitted to me for reconsideration.

‘[72] To address directly the question posed by the Asylum and Immigration Tribunal directing re-consideration of this appeal on 13 January 2006 there is evidence which persuades me that the appellant's photograph may appear on a UFIN web site under the address www.ufin.org and that photograph may, in addition, contain what the appellant describes as his appointment as Vice President. Nevertheless, for reasons set out herein, I find that, and taking fully into account the evidence adduced before me, and the jurisprudence to which I have and have been referred, the appellant would not attract the adverse or indeed any other interest of the Iranian authorities’.”

Buxton LJ later had this to say about MD’s case (paragraph 27):

“This case is less straightforward. The IJ [of course the Immigration Judge] was required to deal with the two issues identified for reconsideration set out in paragraph 10 above. Mr Coppel, for the Secretary of State, said that that was what the IJ had done, and in terms that could not be faulted. First, as to whether MD’s photograph did appear on the UFIN website, when the IJ said that ‘there is evidence which persuades me that the appellant’s photograph may appear’ there he was accepting that fact as proved for the purpose of further consideration of the case. The Senior Immigration Judge in her grant of commission…had misunderstood what the IJ was saying. I think there is force in that criticism. Second, in considering the consequences of the presence of the photograph on the website, Miss Eshun [I interpolate she was the Senior Immigration Judge who granted permission] said that the IJ’s conclusion that that was of no consequence was at odds with his findings in his paragraph 70 about MD’s UFIN activities. Mr Coppel said that the IJ’s confusion was a logical and permissible finding, not significantly criticised by the applicant, that was open to the IJ because of his earlier conclusion that UFIN was not regarded as of any consequence by the authority in Iran: see paragraph 11 above.”

Then I go to paragraph 29 of Buxton LJ’s judgment:

“This case comes near to being one in which the court should refuse to permit the appeal to proceed, but I am not prepared to hold that the Senior Immigration Judge’s order was plainly wrong, to the extent that subsequent delay by the applicant’s advisers should override the grant of permission.”

This morning, Ms Vidal has addressed us with great tenacity and economy in support of the appeal. First of all, she attacks the way in which the Immigration Judge dealt with the first issue before him -- that relating to the photograph on the website. She said that an assumption in her client’s favour is not as good as a distinct finding that the photograph there appeared. She said there might have been material on the website in addition to the photograph on its own that would have supported the case being made by the appellant.

There is no trace, as far as I can see, of an argument of that character having been advanced or canvassed or anticipated at any earlier stage. In my judgment the Immigration Judge was plainly accepting, for the purposes of the case before him, that the appellant’s photograph may be treated as having appeared on the website. It seems to me that that is not legally objectionable. I consider also that the Immigration Judge dealt perfectly properly with the second question before him, that is to say: what were the consequences of the appellant’s photograph being so displayed? As Buxton LJ indicated in the passage I have quoted, the Immigration Judge said at paragraph 72 of the determination:

“… for reasons set out herein, I find that, and taking fully into account the evidence adduced before me, all issues that have been raised before me, and the jurisprudence to which I have and have been referred, the appellant would not attract the adverse nor indeed any other interest of the Iranian authorities.”

That is of course cast in entirely general terms, but it is obvious, if I may say so, that the Immigration Judge is referring back to earlier reasoning in the determination. It is necessary to have in mind that the appellant’s case was that he had made it known that he supported (or would support) what is called the Hakha Movement, an Iranian opposition group in the United States, on behalf of UFIN. The Immigration Judge confronted that case; specifically he did so at paragraphs 66 to 69. He considered evidence adduced by the appellant himself to the effect that Iranian state television had treated such opposition figures as figures of fun (see paragraph 66) and had offered other disparagement (see paragraph 67). At paragraph 68 he said this:

“I consider that whatever the importance the appellant might claim for any liaison or support UFIN offers the Hakha Movement, it is of little or no consequence in Iran, and the item the appellant has adduced in evidence before me from the worldwideweb merely serves to underline that.”

It seems to me he was entitled so to conclude, and the finding was not inconsistent with the case of KN, to which the Immigration Judge referred at paragraph 40 of his determination. That was a case in which the Immigration Appeal Tribunal had considered the position of UFIN in Iran. It is sufficient to go to paragraph 43, where the Immigration Judge makes observations about certain findings there made. He says:

“However, the Immigration Appeal Tribunal found that, the fact that surveillance took place and that the Iranian regime targeted opposition activists did not provide an adequate evidential basis for an assertion that anyone who is mentioned in a website of literature produced by an opposition party would be at real risk of persecution in Iran. The Immigration Appeal Tribunal was not satisfied membership of UFIN would put a claimant at risk in Iran. However, if on the facts of a particular case, it was shown that there was a reasonable degree of likelihood that an applicant has engaged in opposition activities in Iran whether on behalf of UFIN of any other party, it accepted that those activities were capable of giving rise to a well-founded fear of persecution.”

The Immigration Judge has thus considered the position relating to UFIN and specifically considered it against the background of the appellant’s own case and evidence. It seems to me that he has addressed the two matters which, upon reconsideration, he was required to address by the earlier direction of the AIT and in those circumstances there is no legal flaw in his determination.

For those reasons for my part I would dismiss the appeal.

I agree.

I also agree.