AS (Iran) v Secretary of State for the Home Department [2015] EWCA Civ 824

Case No C5/2014/2742

[2015] EWCA Civ 824

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL

(IMMIGRATION AND ASYLUM CHAMBER)

(UPPER TRIBUNAL JUDGE KEKIC)

Venue Royal Courts of Justice

Date Thursday, 25th June 2015

Strand

London, WC2A 2LL

B E F O R E:

LORD JUSTICE RYDER

AS (IRAN)

Applicant/Claimant

-v-

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent/Defendant

(Computer-Aided Transcript of the Stenograph Notes of

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Ms C Meredith (instructed by Sentinel Solicitors) appeared on behalf of the Applicant

The Respondent did not attend and was not represented

J U D G M E N T

Between

AS (Iran)Appellant

Secretary of State for the Home DepartmentRespondent

LORD JUSTICE RYDER:

[1]The appellant is an Iranian national who is the subject of an anonymity direction. She seeks permission to appeal the Upper Tribunal determination of Deputy Judge Manuell on 11 April 2014 which upheld the determination of First Tier Tribunal Judge Beg of 15 January 2014.

[2]The appellant's applicant's statement, which supplements and substitutes for the skeleton argument upon which Laws LJ refused permission on paper, identifies the following grounds, and I shall number them(i) to (iv): (i) the Upper Tribunal judge misdirected himself in law in dismissing the appeal without considering whether or not the FTT erred in finding that the appellant was not a refugee on three Convention grounds - religion, membership of a particular social group or risks arising in the context of illegal exit;

(ii) the Upper Tribunal judge misdirected himself in law in rejecting risk on account of sur place political activities when there had been unfairness and/or she had failed to apply the correct standard of proof;

(iii) the judge's findings were inconsistent with the evidence of the medical experts; and

(iv) the finding that the appellant did not face an Article 3 risk on account of suicide was unsupported by evidence and/or a misdirection of law.

[3]The decision of the Upper Tribunal Judge was succinct. In truth, one cannot ascertain from the terms of his decision whether any error of law was considered or not. It is necessary therefore to go to the detail of the decision promulgated by Judge Beg in the First Tier Tribunal, and the basis of this appeal rests primarily in errors of law that it is asserted Judge Beg made arising out of her factual determinations. Those factual determinations are not themselves likely to be the subject matter of this appeal, and I hazard an opinion that they would be unassailable in any event.

[4]The first ground of appeal encompasses four factual situations. It is convenient to outline them by cross-referencing them to the paragraphs of Judge Beg's judgment so that they can be extracted rapidly when the matter comes on for full hearing:(a) as to her associations with the Mojahedin Khalg involvement, the judge made her findings at paragraph 44 of the judgment;

(b) as to the alleged sur place activities in the United Kingdom, the judge made her findings at paragraph 52;

(d) as to the political opinions held by her, the findings were made at paragraph 54. The critical paragraph for the purposes of this permission judgment relate to (e), which is the domestic violence which she suffered, the relevant paragraphs are at 58, 68 and 70. Before coming to those paragraphs in a little detail, there is then (f), the judge's findings relating to the appellant's conversion to Christianity, which are at 62 and 67.

[5]There is no question that religion, political activity, opinions and associations and membership of a particular social group, that is women in Iran who had been domestically abused, were considered on the evidence and that factual determinations were made by Judge Beg.

[6]The primary question that arises in respect of this application for permission to appeal, without prejudice to the success of any other applications that Ms Meredith will pursue at the substantive hearing, is whether Judge Beg was right to conclude at paragraph 58 of her judgment that the appellant was a woman in Iran, even in the circumstances of claimed domestic abuse, but not a member of a particular social group. That follows through to paragraph 70 of her judgment, where the judge, somewhat unhappily, summarises her factual conclusions in this way:

"I find that she may well have had an unhappy life with her husband and returned to the United Kingdom in 2012 leaving behind her daughter. The appellant has also claimed that she suffered domestic violence including an abortion. I find that all of those factors have undoubtedly contributed to the appellant's symptoms of post-traumatic stress disorder. I do not however find that there is clear evidence before me that the appellant is at risk of suicide if she is returned to Iran."

[7]Ms Meredith pursues the point in this way. The judge concluded that this claimant suffered over four years of battery, matrimonial rape and a forced abortion by husband, who refused her a divorce and effectively placed her under house arrest. Having regard to the Home Office Guidance entitled "Gender Issues in the Asylum Claim" and Article 9(1)f of the Qualification Directive, the judge made an error of law in not concluding that the acts which were found as a fact to have occurred, and the post-traumatic stress disorder and severe depression which were found as a fact to be the consequence on the medical evidence that was before the court, were sufficient to hold that the appellant was a member of a particular social group, having regard to her innate characteristics and the lack of sufficient protection in Iran. Had she so held, it would have been arguable that she had faced persecution and a risk of persecution such that a Convention reason would exist to afford her protection.

[8]There is, in my judgment, a real prospect of success in the argument that the judge made an error of law on this basis.

[9]I make no comment as respect the other heads or grounds of appeal that Ms Meredith seeks to pursue. I do not deny her that opportunity by refusing permission or limiting it because the overall context of the circumstances in which AS left Iran for the second time to be in the United Kingdom are relevant to the determination of the appeal.

[10]I grant permission for the matter to go before the full court of three judges, one of whom shall be an immigration specialist with a time estimate of one day.