Torabi v Secretary of State for the Home Department [Court of SessionInner House Extra Division]
| Jurisdiction | Scotland |
| Judgment Date | 05 May 2006 |
| Docket Number | No 37 |
| Date | 05 May 2006 |
| Court | Court of Session (Inner House - Extra Division) |
Court of Session Inner House Extra Division
Lord Macfadyen, Lord Mackay of Drumadoon, Lord Marnoch
Immigration - Human rights - Appellant to stand trial for adultery if returned to Iran - Whether Immigration Appeal Tribunal erred in evaluating evidence - European Convention on Human Rights and Fundamental Freedoms, Arts 2, 3, 6
The European Convention on Human Rights and Fundamental Freedoms provides, inter alia, by Art 2 "Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law"; by Art 3 "No one shall be subjected to torture or to inhuman or degrading treatment or punishment"; and by Art 6 "In the determination … of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."
An application for asylum by an Iranian national was refused by the adjudicator. The claim was based on alleged contraventions first of the Refugee Convention and secondly of Arts 2, 3 and 6 of the European Convention on Human Rights. The appellant appealed to the Immigration Appeal Tribunal, relying only on the second ground. She claimed that following a divorce and custody dispute in Iran, she was falsely accused of adultery by her former husband. She fled the country with her daughter when she learned that evidence had been fabricated against her, because conviction would have resulted in a sentence of death by stoning. The tribunal accepted as a fact that she had not committed adultery, and concluded that there was not a real risk that she would be convicted. It refused the appeal. The appellant appealed to the Court of Session. She submitted that the tribunal had failed to make clear whether it accepted the evidence that in Iran a woman's evidence is accorded less weight than a man's; that judges are responsible for prosecution; that trials are often held in camera; and that the penalty for adultery is death by stoning, and is in fact implemented. In the absence of clear findings on these points, she argued that the conclusion that court proceedings in Iran would not be in breach of Art 6 was irrational. In relation to Art 3, she argued that the tribunal had applied the wrong test, and had gone further than it was entitled to do in holding it to be an established fact that she was innocent of adultery, thus vitiating its reasoning. The respondent accepted that the tribunal had misinterpreted the evidence that in Iran judges were responsible for prosecution and that trials were often held in camera, but submitted that the error was immaterial, and that the appellant's evidence did not establish that such unfairness would arise in her case.
Held that: (1) in relation to Art 6, the correct test, as identified in R v Special Adjudicator, ex p UllahELR[2004] 2 AC 323 is, in foreign cases, it must be shown that a person has suffered or risks suffering a flagrant denial of a fair trial (para 26); (2) the tribunal had erred in its evaluation of the evidence in relation to the Art 6 case, first in misinterpreting the evidence that in Iran judges were responsible for prosecution and that trials were often held in camera, so that it placed less weight than it would otherwise have done on the appellant's evidence on those points, and secondly in failing to make clear findings on the evidence that in Iran a woman's evidence is accorded less weight than a man's, so that it was not clear what was the effect of its conflicting observations on its reasoning (para 29); (3) in relation to the Art 3 case, the tribunal materially misdirected itself in holding it to be an established fact that the appellant was innocent of adultery, with the result that it concluded that any decision to the contrary would be perverse; it accordingly formulated the issue as being whether there was a real risk of 'a perverse decision', whereas the correct test is whether there is a real risk of a person being subjected to treatment contrary to Art 3 (paras 31, 32); and appeal allowed, and case remitted to the tribunal.
R v Special Adjudicator, ex p UllahELR [2004] 2 AC 323 applied.
Fatema Torabi appealed to the Immigration Appeal Tribunal against the determination of the adjudicator, dated 19 July 2002, which held that her return to Iran would not contravene the Refugee Convention or the European Convention on Human Rights. On 3 April 2003 the tribunal refused her appeal.
The appellant appealed to the Court of Session.
Cases referred to:
AB v Slovakia App No 41784/98, 4 June 2003, unreported
B v Sweden App No 16578/03, unreported
Dehwari v NetherlandsHRC (2001) 29 EHRR CD 74
Devaseelan v Secretary of State for the Home Dept[2002] UKIAT 702; [2003] Imm AR 1
Drozd and Janousek v France and SpainHRC (1992) 14 EHRR 745
Ezeh and Connors v UKHRC (2004) 39 EHRR 1
Headley v UK App No 39642/03, unreported
Jabari v Turkey [2001] INLR 136
Kacaj v Secretary of State for the Home Dept [2002] Imm AR 213; [2001] INLR 354
Karanakaran v Secretary of State for the Home DeptUNK[2000] 3 All ER 449; [2000] Imm AR 271; [2000] INLR 122
Mamatkulov and anr v TurkeyUNK (2003) 14 BHRC 149
Mamatkulov and anr v TurkeyHRC (2005) 41 EHRR 25; 18 BHRC 203
Öcalan v TurkeyHRC (2003) 37 EHRR 10
Piersack v BelgiumHRC (1982) 5 EHRR 169
R v Secretary of State for the Home Dept, ex p DalyUNKELRWLRUNK[2001] UKHL 26; [2001] 2 AC 532; [2001] 2 WLR 1622; [2001] 3 All ER 433
R v Secretary of State for the Home Dept, ex p IranUNK[2005] EWCA Civ 982; [2005] Imm AR 535; [2005] INLR 633
R v Secretary of State for the Home Dept, ex p SaadiUNKWLRUNK[2002] UKHL 41; [2002] 1 WLR 3131; [2002] 4 All ER 785
R v Special Adjudicator, ex p UllahUNKELRWLRUNK [2004] UKHL 26; [2004] 2 AC 323; [2004] 3 WLR 23; [2004] 3 All ER 785
Secretary of State for the Home Dept v AkaekeUNK [2005] EWCA Civ 947; [2005] Imm AR 701; [2005] INLR 575
Secretary of State for the Home Dept v Fazilat [2002] UKIAT 00973, unreported
Singh (Daljit) v Secretary of State for the Home DeptSC2000 SC 219; 2000 SLT 243
Soering v UKHRC (1989) 11 EHRR 439
Textbooks etc. referred to:
Home Office, Country of Origin Information Report: Iran(October 2001)
The cause called before an Extra Division, comprising Lord Macfadyen, Lord Mackay of Drumadoon and Lord Marnoch, for a hearing on the summar roll, on 8 December 2005.
At advising, on 5 May 2006, the opinion of the Court was delivered by Lord Macfadyen-
Opinion of the Court-
[1] This is an appeal, at the instance of an Iranian national, against a determination of the Immigration Appeal Tribunal ('the tribunal') dated 3 April 2003. By that determination the tribunal refused the appellant's appeal against the determination of an adjudicator dated 19 July 2002 in which it was held that her return to Iran (a) would not contravene the United Nations Convention Relating to the Status of Refugees 1951 ('the Refugee Convention'), and (b) would not contravene Arts 2, 3 or 6 of the European Convention on Human Rights and Fundamental Freedoms ('the Human Rights Convention'). On 8 May 2003 the tribunal refused the appellant's application for leave to appeal to this court, but this court subsequently granted such leave by interlocutor dated 5 May 2005.
[2] The appellant was born on 22 May 1953. In May 2001 she left Iran with her daughter, who was born on 21 August 1988. The appellant and her daughter travelled by way of Turkey, where they stayed for two months, and another unidentified country, to the United Kingdom, where they arrived on 18 July 2001. On arrival, the appellant made a claim for asylum. By letter dated 10 September 2001 the respondent refused that claim. A notice of refusal of leave to enter after refusal of asylum dated 23 September 2001 was served on the appellant. She appealed against that notice to the adjudicator. As we have already recorded, he refused her appeal. He did so both in so far as it was based on alleged contravention of the Refugee Convention, and in so far as it was based on the proposition that her return to Iran would involve contravention of the Human Rights Convention. In the appellant's appeal to the tribunal, she did not maintain her reliance on the Refugee Convention, but did maintain that her return to Iran would contravene Arts 2, 3 and 6 of the Human Rights Convention. The appeal to this court was of the same scope.
[3] In these circumstances it is not necessary to summarise the events which gave rise to the appellant's asylum claim, except in so far as they form the background to her human rights claim. The appellant was a teacher. She was also a supporter of the Azadi Movement. They and she believed in openness and, as a result, when her students asked her about politics, she gave what she regarded as honest answers. That brought her to the attention of the Intelligence Services, and she was arrested, detained and badly treated. Her husband was unhappy about these developments, and mistreated her. They were divorced on 20 April 2001. In face of opposition from her husband, she was awarded custody of her daughter. Then the appellant received a summons requiring her to go to court on 2 May 2001. She was accused of adultery. When she went to court, she spoke to the court administrator, and learned that there was a statement on file that bore to prove her adultery. Although she maintains that the statement was false, and that she has never committed adultery, she was greatly frightened when she learned of the existence of the statement. That was because the punishment for adultery was and is death by stoning. She fled the court building and arranged to flee from Iran to the United Kingdom. She travelled to the United Kingdom with her daughter in the manner already...
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