Secretary of State for the Home Department v AKRAM DAVOODIPANAH/
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KENNEDY,LORD JUSTICE CLARKE,LORD JUSTICE JACOB |
| Judgment Date | 29 January 2004 |
| Neutral Citation | [2004] EWCA Civ 106 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 January 2004 |
| Docket Number | C4/2003/2125 |
[2004] EWCA Civ 106
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Royal Courts of Justice
Strand
London, WC2
Lord Justice Kennedy
Lord Justice Clarke
Lord Justice Jacob
C4/2003/2125
MR RAZA HUSAIN (instructed by The Rights Partnership, Birmingham) appeared on behalf of the Appellant
MR GERALD CLARKE (instructed by Treasury Solicitor) appeared on behalf of the Respondent
This is an asylum-seeker's appeal from the decision of the Immigration Appeal Tribunal which, on 25 July 2003, allowed an appeal by the Secretary of State against the determination of an adjudicator. The issue at stake is the extent and effect of concessions alleged to have been made by the Home Office Presenting Officer before the adjudicator.
Background
The appellant is a native of Iran, born on 26 January 1967, now 37 years of age. She grew up in Tehran and qualified as a nurse, working at the Al-Ghadir Hospital, Tehran. On 15 August 1995 she married Mojtaba Boozary, an accountant. There were no children, and it is the appellant's case that she has been unfaithful, having more than once had extra-marital relationships.
One such relationship was with Reza Mortezai. On 18 November 2001 she met him by arrangement in a rest room at the hospital during her shift. By then her husband was suspicious. He tried to contact her, went to the hospital, was directed to the rest room, but could not get in because the door was locked. She escaped out of the window and went to a friend's house where she hid. With the aid of another friend she went on the following day, 19 November 2001, to Tabriz near the border, and raised some money there by selling her watch and her jewellery.
On 22 November 2001 she left Tabriz by lorry and arrived in the United Kingdom on 4 December 2001. She then claimed asylum. However she failed to return her statement of evidence form within 10 days, so on 4 January 2002 her application was refused. Had she not fled she would, she contends, have been arrested for adultery, the penalty for which is death by stoning.
On 29 January 2001 her solicitors gave notice of an appeal to the adjudicator. The matter then came before an adjudicator at Birmingham in October 2002. She contended that removal to Iran would be in breach of the Refugee Convention and in breach of her rights under the European Convention on Human Rights.
The appellant gave evidence before the adjudicator and called one witness. The adjudicator also considered written material placed before her, including material relating to conditions in Iran. Before she gave evidence the appellant had made two written statements. At paragraphs 17 and 18 of her determination, when dealing with the respondent's case, the adjudicator said:
"17 Having now had the benefit of seeing the appellant's statements, filed within the appeal proceedings, the respondent concedes that if the appellant succeeds in persuading me that her account is accurate, she would be a refugee within the definition contained in section 1 (A) (2) of the Refugee Convention, as she would come under the umbrella of a social group. It is also conceded that should she be convicted of adultery, the punishment could be stoning to death, and this is supported by objective evidence.
18 The issue for the respondent is credibility. The respondent does not believe that the appellant is credible."
The adjudicator then set out the evidence given at the hearing before turning to the submission made by Miss Mepsted, the Home Office Presenting Officer on behalf of the respondent. At paragraph 28 the adjudicator said:
"It was submitted on behalf of the respondent that the sole issue was that of credibility. It was accepted that the appellant was a member of a social group within the Refugee Convention, and that the penalty for adultery could be stoning to death. Essentially, did I believe the account given by the appellant?"
The Presenting Officer's submissions in relation to credibility were then summarised. At paragraph 32 the adjudicator turned to the submissions made by Mr Henry Davies, counsel for the appellant. That paragraph reads:
"It was submitted that if I found the appellant to be credible then the claim should succeed both under Article 1 (A) (2) of the Refugee Convention, and also under the ECHR. As the issue was solely in relation to credibility, my attention was drawn to the line of authorities helpfully summarised in Macdonald's Immigration Law and Practice (Fifth Edition) ."
The adjudicator went on to compare the accounts given by the appellant as to her time in Iran and her journey to the United Kingdom. Allowing for inconsistencies, she found that the appellant had committed adultery with possibly one or two persons, that her husband was suspicious and that as a consequence she left Iran clandestinely and in a hurry.
The respondent had conceded that the appellant, as an Iranian adulteress, did come within the definition of a social group contained in Section 1 (A) (2) of the Refugee Convention. The objective evidence led the adjudicator to conclude that the appellant's evidence would not be fairly assessed in Iran, and further that as an adulterous wife she could be deprived of her life by stoning. The appeal was therefore allowed, both under the Refugee Convention and under the European Convention on Human Rights.
Grounds of Appeal to IAT
On 15 November 2002 the Secretary of State sought leave to appeal to the Immigration Appeal Tribunal on three grounds:
(1) That the appellant was not a member of a social group. Adulteresses, it was said, cannot be said to constitute a social group sharing an "immutable" characteristic, and the social group argued for does not exist independent of the persecution feared.
(2) Even if the social group did exist there is no serious possibility of persecution because in order to be found guilty of adultery under the Islamic Penal Code the adultery must be witnessed by at least three others before there can be death by stoning. In this case there were no witnesses. (3) Given the high threshold for...
To continue reading
Request your trial
-
Upper Tribunal (Immigration and asylum chamber), 2020-07-22, HU/10860/2019
...by the respondent, may be withdrawn where there is good reason and it would be fair and reasonable to do so (see, SSHD v Davoodipanah [2004] EWCA Civ 106 at [22]; NR(Jamaiaca) v SSHD [2009] EWCA Civ 856 at [12] and AK(Sierra Leone) v SSHD [2016] EWCA Civ 999). The appellant will, if he cann......
-
Upper Tribunal (Immigration and asylum chamber), 2021-11-15, DC/00051/2020
...concession is extant in the absence of any application to withdraw it (see Secretary of State for the Home Department v Davoodipanah [2004] EWCA Civ 106). 18. It is submitted that this concession is practically identical to the one made in Sleiman (deprivation of citizenship; conduct) [2017......
-
Upper Tribunal (Immigration and asylum chamber), 2020-10-07, DC/00098/2019
...was rationally made in public law terms. Goldring LJ, with whom Mummery and Lloyd LJ agreed, echoed what had been said in Davoodipanah [2004] EWCA Civ 106, noting that ‘the Tribunal may in its discretion permit a concession to be withdrawn if in its view there is good reason in all the circ......
-
AM (Iran) v Secretary of State for the Home Department
...principles that will apply beyond those implicit in CPR Part 1.1. 41 In Secretary of State for the Home Department v. Davoodipanah [2004] EWCA Civ 106 a concession had been made before the Immigration Adjudicator. On an appeal to the Immigration Appeal Tribunal, the Secretary of State consi......