Upper Tribunal (Immigration and asylum chamber), 2006-04-18, [2006] UKAIT 37 (AS (Appeals Raising Article 3 & 8))
| Jurisdiction | UK Non-devolved |
| Judge | Mr C M G Ockelton, Mr G Warr |
| Status | Reported |
| Date | 18 April 2006 |
| Published date | 26 April 2006 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 14 March 2006 |
| Subject Matter | Appeals Raising Article 3 & 8 |
| Appeal Number | [2006] UKAIT 37 |
Asylum and Immigration Tribunal
AS (Appeals raising Articles 3 & 8) Iran [2006] UKAIT 00037
THE IMMIGRATION ACTS
|
Heard at Field House |
Determination Promulgated |
|
On 14 March 2006 |
On 18 April 2006 |
|
Prepared |
………………………………… |
Before
Mr C M G Ockelton, Deputy President
Mr G Warr, Senior Immigration Judge
Between
Appellant
and
Secretary of State for the Home Department
Respondent
Representation:
For the Appellant: Mr S Chelvan of Counsel instructed by Powell Spencer & Partners Solicitors
For the Respondent: Mr P Deller, Home Office Presenting Officer
In a Human Rights appeal, an immigration judge should deal with each relevant and plausible human rights Article that is raised and indicate at the conclusion of the determination on which Article or Articles the appellant succeeds. Where an appeal is allowed under Article 8 that does not preclude an appellant seeking an order for reconsideration on the basis that the judge erred in law in not allowing the appeal under Article 3 also. In general a longer period of leave will be conferred and settlement will be achieved more readily under current Home Office policy where an appellant succeeds under Article 3 as opposed to Article 8.
DETERMINATION AND REASONS
1. The appellant is a citizen of Iran born on 21 August 1979. He entered the United Kingdom on 14 March 2005 on a forged passport. He claimed asylum on 20 March 2005. This application was refused on 17 May 2005. The appellant appealed under Section 82 of the Nationality, Immigration and Asylum Act 2002 and the matter came before an Immigration Judge (Miss P Clough) on 5 August 2005 when the appellant was represented, as he was before us, by Mr Chelvan.
2. The appellant's case before the Immigration Judge was that he would be persecuted in Iran because of an adulterous relationship with a Miss GS and that returning him to Iran would engage Articles 2 and 3 of the European Convention on Human Rights.
3. At the hearing before the Immigration Judge both the appellant and Miss GS gave evidence. There was a concession at the outset of the proceedings that the child born to Miss GS had been fathered by the appellant. We shall refer to the husband of GS as F. and the child of GS and the appellant as M.
4. The Immigration Judge sets out her findings in the following concluding paragraphs of the determination as follows,
13. "The appellant's evidence is that he was a minicab driver. He met Miss GS … in March or April 2001. He met her through driving her in his cab. They began an illicit relationship. The appellant's family sought GS's hand in marriage, but was refused because the appellant was younger than GS, because of his employment and because he was less educated than GS. Two weeks after this failed application the appellant was stabbed on his right arm by a man who told the appellant to leave GS alone. The appellant's father called the police. The appellant made a complaint to the police but did not reveal the reason for the attack. This was because he knew GS was promised to her paternal cousin by her father. After this the appellant and GS continued to meet in secret. In May 2003 GS discovered she was pregnant. They unsuccessfully sought an abortion because they could not provide documentation of their marriage. They decided the only solution was for GS to marry her cousin.
14. The marriage duly took place and the appellant did not have any contact with GS until about February 2006 when she came to the appellant's home with their child in the middle of the night. She explained she had been repeatedly beaten by her husband, whose second wife she was, and that she had asked him for a divorce, but he had refused to consent to one. The appellant said GS could not stay in his home but he would take her to his mother's house. As they were going to his car, the appellant was attacked by a man from behind. GS shouted "Don't do it F". The appellant realised this was the appellant's husband. They managed to escape and went to the appellant's father's house outside the city.
15. GS's husband is an officer in the Iranian organisation known as Etelehad. The appellant feared for both of them if they were caught because of the husband's influence. From his father's house the appellant and GS went to another part of Shiraz until the situation calmed down. From there, they went to his cousin's. They remained there for two weeks when they heard the police sought them. They moved to Oromia near Turkey, but decided they had to leave. The appellant's cousin arranged for an agent to take them to safety. They travelled with an agent and under his direction. They were arrested leaving the UK and this prompted the asylum claim.
16. After hearing from the appellant and GS, I find their claim to have had an illicit relationship from 2001 to be credible and that they are the parents of the child, M, born on 1 January 2004. This is because of the manner in which they gave evidence and because GS's claim to have been ill treated by her husband is corroborated by medical evidence.
17. I had an impressive Report from Dr Enayat regarding the legal consequences of the appellants' actions. I accept from the content of this Report that the appellant is at risk of being charged with adultery or of having an illicit relationship with GS. The appellant, himself, fears that he will be liable to a sentence of flogging. This punishment is not behaviour serious enough to engage Article 3. In addition, I do no consider the evidence before me supports a finding that Article 2 would be engaged on return.
18. It was argued that the appellant formed part of a particular social group, in that he was a member of a group that was disadvantaged, namely those who were part of a group who transgressed the strict Islamic law on sexual relationships outside marriage. I do not find, having considered the case law before me, in particular, TB (PSG – Women) Iran and other authorities to which I was referred, that because the Iranian Penal Code proscribes adultery and illicit sexual relationships (that is, sexual relationships outside marriage) persons who transgress the law form a particular social group. The Iranian Penal Code is clearly based on an Islamic "view" of morals. That the Iranian Penal Code has its ultimate origin in a religious code does not make transgressor of it fall within one of the Refugee Convention groups. In particular prosecution for breaching the Code does amount to persecution of a person on account of their religion.
19. I find that the appellant has not proved he will suffer persecution for a Convention reason or that he will be treated in a way that will engage Articles 2 or 3 or the 1950 Convention.
20. However, there is another factor to be considered here. The appellant and GS are parents of a child born to GS while married to another man. The law regarding a child born of an illicit relationship is discussed at 1.8 of Dr Enayat's Report. It is clear under Article 1162 of the Civil Code that a child born out of wedlock shall not belong to the parents who had an immoral connection. How this leaves the legal position of M is unclear, but I consider, if returned with his parents his paternity will be challenged and his true paternity will be revealed. I consider there is a real risk that the child would be removed from the care of both parents and raised by the State. The child and his parents now have a family life, in that they are living together as a family. I find that removing the appellant or GS and the child either together or singly to Iran, will run a real risk of destroying that family, either in Iran or elsewhere, forever. As such, I consider this risk falls within the very unusual circumstances discussed in Huang so as to engage Article 8.”
5. The Immigration Judge accordingly dismissed the appellant's asylum appeal, refused the appeal under the European Convention on Human Rights under Articles 2 and 3 but allowed the appeal under Article 8.
6. An application for an order of reconsideration was made on 9 September 2005 and the grounds were settled by Mr Chelvan. It was submitted that the Immigration Judge had erred in finding that the ill-treatment that the appellant would expect by being lashed would not breach Article 3 and reference was made to HA (Iran) [2003] UKIAT 00095 CG and HS (Iran) [2005] UKAIT 00120.
7. On 19 September 2005 the Tribunal made no order on the application on the basis that the appellant's appeal had been allowed under the European Convention on Human Rights and the appellant did not have separate rights under each Article.
8. The application was renewed before the High Court. Neuberger LJ accepted that if the consequences for the appellant of a successful appeal under Article 8 were in all ways as good as or better than the consequences would have been if he had succeeded under Article 3 then the decision of the Tribunal to refuse to order reconsideration must be correct. Paragraph 3 of the reasons reads as follows:
"However, if the appellant would have been better off in a practical and significant way had his case under Article 3 been accepted, then I think it must be at least strongly arguable that he could have been...
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