Y v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLORD JUSTICE KEENE,LORD JUSTICE CARNWATH,Lord Justice Keene,LORD JUSTICE WARD
Judgment Date26 July 2006
Neutral Citation[2006] EWCA Civ 1223
Docket NumberC4/2005/0694
CourtCourt of Appeal (Civil Division)
Date26 July 2006
Y
Claimant/Appellant
and
Secretary of State for The Home Department
Defendant/Respondent

[2006] EWCA Civ 1223

Before:

Lord Justice Ward

Lord Justice Keene

Lord Justice Carnwath

C4/2005/0694

[AIT NO. HX/03935/2004]

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

MR R SINGH QC and MS A WESTON (instructed by Messrs Robert Lizar, 159 Princess Road, MANCHESTER, M14 4RE) appeared on behalf of the Appellant.

MR N GARNHAM QC and MR J SWIFT (instructed by Treasury Solicitor, LONDON, SW1H 9JS) appeared on behalf of the Respondent.

LORD JUSTICE KEENE
1

This is an appeal from a decision of the Immigration Appeal Tribunal ("IAT") notified on the 4 th February 2005. By that decision the IAT dismissed an appeal from an adjudicator who had rejected the appellant's asylum and human rights claims. The adjudicator's decision was promulgated on 5 th May 2004 with the consequence that an appeal to the IAT lay only on a point of law. Some of the basic facts were not in dispute. The appellant is a citizen of Iran, born in September 1980. He had worked as a motor mechanic in Tehran. He arrived in the United Kingdom on 23 October 2002 and subsequently applied for asylum, which was refused by the Secretary of State.

2

However, much of the account which he gave to the adjudicator of events leading to his departure from Iran was challenged and his credibility was undoubtedly central to the case. His account was that a lot of the work carried out at the garage where he was employed was on military vehicles. He had been wrongly accused of stealing a rifle from one such vehicle; the rifle, it was alleged, having been carelessly left there. This took place in late September 2002. He was arrested, he said, and detained for ten days, during which time he had been questioned about his politics and asked who he was going to assassinate. He claimed that he had been tortured while in detention, with his arm being broken as a result.

3

He said that he was released at the end of that 10-day period when a high-ranking member of the Etalaat, that is to say the Iranian intelligence services, who was a friend of his uncle, put up his house as security for the appellant to be granted bail. The appellant, having been released, then left Iran. The friend's home had been confiscated as a result. Subsequently, he said, his father sent him a number of documents dealing with charges against him and his trial in absentia. He was sentenced to 10 years' imprisonment and 150 lashes. The appellant only had faxed copies of these documents and was unable to produce originals.

4

The adjudicator noted that there was reference in the Home Office CIPU report to the widespread use of torture by the security forces in Iran. Nonetheless, he did not accept the appellant's account of events. He referred to a number of matters which rendered it, in his eyes, not credible. The first was that it was not credible that someone connected with the security forces would put himself forward as a surety for a person suspected of links with terrorism and anti-Iranian actions. Next, if the appellant were suspected of terrorism he would not have been released, regardless of the influence of an individual surety.

5

Next, given that individuals in Iran are not allowed to own weapons, it was inconceivable that a member of the armed forces would leave a rifle in a vehicle being repaired. It was also implausible, said the adjudicator, that someone would risk confiscation of his home by standing surety in these circumstances, when he would have been aware of the possibility of the appellant fleeing and seeking asylum.

6

In addition, the adjudicator noted that there was no medical evidence to support the claim of a broken arm and no evidence that documents produced were genuine. No originals had been produced and there was evidence in the CIPU report that documents were easily forged in Iran. Consequently, the adjudicator found that the appellant's account of past persecution was not credible and that he had no well-founded fear of persecution in the future for a Convention reason, or at all, so that there would be no breach either of articles 2 or 3 of the European Convention on Human Rights ("ECHR") resulting from his return to Iran.

7

The adjudicator also considered the sentence allegedly imposed of 10 years' imprisonment and 150 lashes. He held that this came within the "structure of punishment" in Iran and was not disproportionate and therefore for that reason also article 3 was not engaged.

8

Permission to appeal to the IAT was given on two grounds. Those were:

"1. The phraseology of some of this determination is obscure, as the grounds assert and it is arguable that the adjudicator has given insufficient reasons for some at least of his findings.

2. The alternative finding that being lashed as a punishment is not contrary to Article 3 of the ECHR is also arguably wrong in law."

9

The second of those grounds only arose of course if it were to be accepted, as the adjudicator had not, that the appellant was credible in his account of the facts relating to events in Iran. That was a point noted by the IAT in its decision on the appeal. The IAT rejected the appeal against the adjudicator's findings on credibility, and therefore did not deal with that second ground. No criticism is advanced of that course of action as such.

10

On credibility, the IAT reminded itself that it should not interfere with the adjudicator's findings of fact unless they could be regarded as perverse; that is to say, one which no reasonable adjudicator could have made. The IAT also had some fresh evidence put before it by the appellant in the shape of a medical report from a consultant radiologist at Manchester Royal Infirmary dated 15 December 2004. The report found that there was an indication of a fracture two years before of the left elbow. It went on to state:

"Normal alignment … there has been remodelling since the previous fracture."

11

The IAT commented that this new evidence was not relevant unless there was an error of law in the adjudicator's approach, which was undoubtedly right, but even if there were the report did not greatly assist the appellant. At paragraph 9:

"… his account was of a fracture which had not been treated, not an old fracture with subsequent 'remodelling' which implies treatment. A car mechanic, dealing with heavy machinery, may get a broken arm in a number of ways other than torture, and we note that the fracture site was not visible on the x-ray."

12

12. The IAT also noted that section 8 of the Asylum and Immigration (Treatment of Claimants, Etc) Act 2004 ("the 2004 Act") was now in force. The appellant, it recorded, had been convicted on a plea of guilty on November 2004 of a breach of his conditions of temporary admission, using a forged document, and obtaining a pecuniary advantage by deception. These offences arose out of him being found in possession of false Home Office grant of status letters which he had been using in order to work illegally.

13

The IAT set out its conclusions in the final three paragraphs of its decision, beginning at paragraph 14. That paragraph it is necessary to quote in full:

"The Tribunal reserved its determination for postal delivery which we now give. We remind ourselves that we are debarred from interfering with an Adjudicator's finding of fact unless they are perverse or unsustainable at the level of error of law. In relation to this Adjudicator's determination, we consider the findings of fact to be sound and far from perverse. The documentary evidence was vague and did not support the appellant's account of the number of lashes to which he would be subject on return. The medical evidence is late, and indicates a treated fracture too old or slight to show clearly on the x-ray. The Adjudicator's consideration of credibility was sound and this appeal was therefore bound to fail. If the core account is rejected, then there is no question of Article 3 and the sentence to 99 or 120 lashes on return; there is no conviction and in consequence no risk engaging Article 3 or the Refugee Convention."

14

It then, and it should be noted only then, went on to consider in paragraphs 15 and 16 the effect of section 8 of the 2004 Act. Section 8, if I may seek to summarise its effect for present purposes, requires decision makers in such cases to take into account certain types of behaviour by an asylum claimant and to treat such behaviour as damaging to his credibility. I do not set out the terms of that section verbatim, for reasons which will become apparent in a moment. The section came into effect on 1 January 2005.

15

The IAT took the view that the behaviour of the appellant in using a number of false instruments to obtain work illegally while in the United Kingdom fell within section 8(2) because it was designed or likely to conceal information and designed or likely to mislead. The tribunal rejected an argument that the behaviour referred to in section 8(2) was limited to behaviour related to the asylum appeal, of the kind set out in section 8(3) . It stated that it was required to regard his behaviour over the false documents as damaging to his credibility and it added that this supported the adjudicator's approach to the Iranian documents produced by the appellant; that is to say, its doubts as to their genuineness.

16

A number of interesting issues are raised by the appellant in his written skeleton argument about the meaning of section 8 and about its compatibility with articles 3 and 6 of the ECHR. In essence, it is argued that section 8 is incompatible with...

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