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

This is the adjourned hearing of a renewed application for permission to appeal from the decision of the AIT (Immigration Judge Baird) dated 3 December 2007, rejecting the appeals of KP and her son, RD. I adjourned the application on a first hearing to be heard on notice to the Secretary of State because I was concerned about one aspect of the application, namely the contention by Mr Chatwin for the applicants that RD’s appeal had not been separately dealt with. I indicated at the first hearing that I did not consider there to be any merit in the other grounds for the application.

KP and her son RD are both citizens of Iran. KP is now about thirty-three and RD is about ten. KP claims to have left Iran in September 2006 and to have come to the United Kingdom via Dubai. She is in poor health, having had a bypass operation and suffering from ovarian cysts. She claimed that her husband had abused her and that her medical conditions resulted from a history of violence suffered at his hands, and she also claimed that her son RD had suffered violence also. She claimed that she had had an affair with a neighbour which was discovered by her husband and his mother, and that forced her to flea from Iran. She also claims that her husband is a member of Herasat, which is a position, she says, earning him considerable influence. She therefore claimed that she would not receive adequate protection from the judicial system or the authorities in Iran were she forced to return.

In January 2007 the Secretary of State rejected the asylum claim and the applicants appealed on Refugee Convention and humanitarian grounds. The appeals were heard in May 2007 by Immigration Judge Trotter, who dismissed them. An order for reconsideration was made in June 2007 by Senior Immigration Judge Southern in relation to both appeals, and in September 2007 Senior Immigration Judge Lane found that the determination contained material errors of law; in particular, inadequate reasoning. Senior Immigration Judge Lane referred to the fact that Immigration Judge Trotter had given a separate short determination for RD, which Senior Immigration Judge Lane also found to be flawed because of the problems with the determination in relation to KP.

On 3 December 2007 Immigration Judge Baird heard and dismissed both appeals. The judge found that there were serious difficulties with the credibility of KP, and her account was a tissue of lies. The following claims were rejected: that she did not know that she was having a bypass operation; that her medical difficulties and condition were caused by her husband beating her; that she could not have got evidence of her husband’s ill treatment and drug abuse; that her husband was involved in Herasat; that the only reason her husband had not made any effort to see her son during her year with her parents was that he knew there was nothing she could do and that she would go back to him; that she was having an affair; that she escaped from her husband in the way that she claimed.

The AIT refused permission to appeal on the ground that the findings were cogent, proper, intelligible and adequate, and that any reliance on the fact that article 8 would be infringed by the loss of custody was foreclosed by the decision of the Court of Appeal in EM (Lebanon) v SSHD [2006] EWCA Civ 1531. On 19 March 2008 Longmore LJ rejected an application to this court on paper. He found that no question of law arose in relation to Immigration Judge Baird’s findings and agreed that the reasons for disbelieving KP were cogent, proper, intelligible and adequate.

KP’s application was based on an allegation of an insubstantial consideration of all the facts, causing the judge to arrive at an unsafe determination. In particular, she relies upon the following matters: Immigration Judge Baird had insufficient knowledge about Iranian legislation regarding child custody; the judge gave insufficient consideration to the effects of the decision on her relationship with her son; the assumption made regarding the burden of proof in adultery proceedings in Iran was unrealistic; the objectivity of the judge was diminished as a result of feelings of frustration towards KP; the judge also made an unwarranted speculation, casting doubt on the existence of a husband at all; while recognising KP’s depression, the judge did not consider this might affect her description of the issues; and to describe her report (the application says) as a tissue of lies is a gross exaggeration.

In addition, on the human rights aspect it is said that the patriarchal-based system in Iran would enable the father to remove RD from KP’s custody without consideration of the best interests of the child.

It is said that EM (Lebanon) is on appeal to the House of Lords and judgment is expected, and that the court might wish to defer consideration of the present application until the judgment is available.

I do not consider there is anything in any of those grounds. I have re-read the decision of the immigration judge and agree with the AIT and Longmore LJ that the decision that KP’s evidence was a tissue of lies and wholly untrue was cogent and intelligible, and I agree with the Secretary of State’s submission that the factual findings in paragraphs 113 and 117 dispose of the human rights claim and, in particular, any arguments which might be put should the House of Lords reverse the decision of this court in EM (Lebanon).

I revert to the point which troubled me, which was that the appeal of RD had not been dealt with. Longmore LJ dismissed this part of the application on the basis that the judge had made plain that KP’s counsel made no separate claim in respect of RD, and agreed that only one determination should be provided. He said that the appeal of RD has not been determined. I revert to the history, some of which I have already mentioned. At paragraph 8B of the original determination, Immigration Judge Trotter noted that KP had left Iran with RD:

“…whose case is linked to this and in respect of whom I have delivered a separate Determination.”

That determination is not among the papers. The order for reconsideration made on 7 June 2007 by a senior immigration judge was in relation to appeals by both KP and RD, as is apparent from the order. In the decision on reconsideration, Senior Immigration Judge Lane referred to the fact that Immigration Judge Trotter had given a separate short determination for RD which Senior Immigration Judge Lane also found to be flawed because of the problems with KP’s determination. In paragraph 5 of the determination, which is the subject matter of the present applications, Immigration Judge Baird said:

“I would say at the outset that it was decided at the Case Management Review Hearing (CMR), in this case that only one Determination would be provided. Mr Chatwin confirmed at the hearing that he had no separate evidence to lead or submissions to make in respect of the Appellant’s son, who he considers to be a dependant on his mother’s claim.”

The judge dealt with the separate position of RD at the end of paragraph 113 of his determination, and the only argument specific to RD is that he faced the risk of being separated from his mother and being returned to his abusive father. But the judge did not accept that KP had custody contrary to the wishes of the father. I am therefore satisfied that Longmore LJ was right to find that there was nothing in this point. It does seem that both appeals were in fact dealt with; that Immigration Judge Baird had made it plain that counsel for KP had made no separate argument in relation to RD, or at any rate no independent evidence was produced. I would add that if there had been anything in this point, the suggestion on behalf of the Secretary of State that the outcome would not have been different if separate consideration be given to RD’s appeal would not have been a very attractive argument and I would have given permission to appeal; but looking at the circumstance as a whole and the whole history of the matter, there were, throughout, two appeals dealt with together, not necessarily in separate documents, and I am therefore satisfied that there is nothing in the point and therefore I dismiss the application.