Adeli, R (on the application of) v Secretary of State for the Home Department [2006] EWHC 474 (Admin)

[2006] EWHC 474 (Admin)Case No CO/2623/2005
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 16/03/2006
Before
THE HONOURABLE MR JUSTICE McCOMBE
THE QUEENOn the application of
Between
ABBAS ADELIClaimantTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Mr. Raza HUSAIN (instructed by TRP) for ClaimantMr. John O’FLAHERTY (instructed by the Treasury Solicitor) for DefendantHearing Hearing date: 6 March 2006
JudgmentThe Honourable Mr. Justice McCombe :
[1]This is an application, brought, with the permission of Sir Richard Tucker as single judge, by Mr. Abbas Adeli for judicial review of a decision of the Defendant made on 14 April 2005 refusing to grant him refugee status. The facts giving rise to the claim are unusual. Mr. Adeli is an Iranian citizen, born on 22 January 1968. He arrived in this country on 21 October 2002 and claimed asylum on that day. On 10 December 2002 his application for asylum was refused by the Defendant, the Secretary of State for the Home Department. Mr. Adeli appealed and his appeal was heard by an Adjudicator, Mr. R.A. Cox, at Birmingham on 30 June 2003.[2]The basis of Mr. Adeli’s claim was that he had been employed from 1989 in a senior capacity in a state owned iron and steel company operating at Esfehan in Iran. In about 1999 he uncovered a massive fraud being perpetrated within that company. He reported his findings to his superiors. Because of this he was threatened and he abandoned any attempt to pursue the matter. Very shortly afterwards, however, in circumstances which he claimed to be contrived by the Iranian authorities, he was introduced to a woman and was caught by the police, red-handed, in the commission of adultery with her. He was subsequently convicted of adultery for which the prescribed punishment is stoning to death. Attempts to appeal against conviction and sentence were made, but to no avail. After serving 33 months in custody, Mr. Adeli escaped by means of bribing an Army Colonel and fled to the UK.[3]As recorded by the Adjudicator in his decision, Mr. Adeli’s claim had been rejected by the Defendant because he did not consider the case to fall within any of the five “Convention reasons” under the 1951 Refugee Convention. He doubted Mr. Adeli’s credibility and “thought that the Appellant’s alleged fear was of prosecution rather than persecution”. He rejected Mr. Adeli’s claim to asylum and to protection under the Human Rights Convention.[4]By a determination prepared on 1 July 2003 and promulgated on 16 July 2003, the Adjudicator allowed Mr. Adeli’s appeal “under both Conventions”. As he stated in his determination he had no hesitation in finding that Mr. Adeli’s removal from the United Kingdom “would be a breach of this country’s obligations under the 1950 Human Rights Convention having regard to Article 3”. With more hesitation he considered Mr. Adeli’s claim that the 1951 Refugee Convention was “engaged”. He concluded that he was persuaded by Mr. Adeli “that in the politico/religious culture in Iran the Applicant’s “whistle blowing” so far as an alleged corruption within a state run industry was concerned and also his “un-Islamic” activity in respect of his adultery would be perceived as political acts and that thus the Convention reason of imputed political opinion does apply”. In the light of those conclusions he allowed the appeal, as he put it, “under both Conventions”. His decision in the final two paragraphs reflected those conclusions.[5]By permission of the Immigration Appeal Tribunal granted on the 20 September 2003, the Defendant appealed to the Tribunal. The appeal was heard on 12 December 2003 by the Tribunal, consisting of Mr. M.W. Rapinet, as chairman, and Mr. A. Smith. By its decision notified on 20 January 2004, the Tribunal stated, “For these reasons we would accordingly dismiss the Secretary of State’s appeal.” (See paragraph 15 of the Tribunal’s written decision.)[6]So far, the case is relatively easy to state. It might appear that the Defendant’s appeal had been unsuccessful. However, the matter did not end there. By two letters dated 5 February 2004 from the “Appeals Implementation Unit” of the Defendant’s department to Mr. Adeli’s solicitors, the Defendant stated first that Mr. Adeli’s asylum claim had been refused, but secondly that he had been granted humanitarian protection by way of a discretionary grant of leave to enter or remain in the United Kingdom, such leave to enter being until 5 February 2007.[7]The distinction is of practical significance for two reasons. First, the grant of humanitarian protection does not carry with it the right for Mr. Adeli’s wife and children to join him in the UK. Secondly, until 30 August 2005 the Defendant had a policy to grant indefinite leave to remain to recognised refugees. On that date, the policy changed to granting to refugees 5 years leave to remain only. It is argued on Mr. Adeli’s behalf that he ought to have been granted refugee status and indefinite leave to remain shortly after the dismissal by the Tribunal of the Defendant’s appeal from the Adjudicator’s decision.[8]It emerged in correspondence between Mr. Adeli’s solicitors and the Defendant’s department that the Defendant’s contention was that, when read as a whole, the Tribunal had in fact allowed the Defendant’s appeal against the Adjudicator’s decision on Mr. Adeli’s Refugee Convention claim, but had dismissed the appeal against the decision on the Human Rights Convention claim. It appears that, from the outset, Mr. Adeli’s solicitors had also perceived an ambiguity in the manner of expression of the Tribunal’s decision which they acknowledged in their first letter to the Home Office following receipt of the two letters of 5 February 2004.[9]The seeds of the ambiguity and divergence of understanding between Mr. Adeli’s solicitors on the one hand and the Home Office on the other, lie in the concluding paragraphs, namely paragraphs 13 to 15, inclusive of the Tribunal’s decision. Those paragraphs read as follows:
“13. It is our view that the Adjudicator on the basis of the evidence before him, was perfectly entitled to conclude that the whole basis of the claim was credible, and to make findings which would arise out of such conclusions. We would therefore dismiss the Secretary of State’s appeal so far as it attacks the Adjudicator’s findings as to credibility. We would also accept, on balance, that the Adjudicator’s findings that the disclosure of fraud in the respondent’s company by a number of colleagues, could in the circumstances arising in Iran, amount to an imputed political opinion. However, the fact that he was set up and prosecuted for adultery and, it would appear, was convicted, does mean that the danger to him is that of returning as an escaped convicted adulterer. This means further that the consequences arise more from this prosecution than the action which led up to that prosecution. We have considered whether or not the prosecution amounts to persecution but in the circumstances of this case we do not think it does. Accepting the Adjudicator’s findings that the prosecution of the respondent was a ‘set up’ the fact remains that he did commit adultery and thus committed a criminal offence for which he was prosecuted and convicted. 14. There then arises the question of the risk to the respondent upon return. This risk is greater in the case of this respondent because he would not be returning as an ordinary failed asylum seeker but as someone already convicted of the offence of adultery. As the Adjudicator rightly points out in paragraph 11 of his determination, there will be a record of his conviction and it is therefore almost inevitable that he will be detained on arrival. The fact that he is an escaped prisoner must result in the very least, a further period of detention and could possibly trigger a decision as to stoning. We have taken account of the Tribunal’s determination in the case of Sazilat and in particular what the President of the Tribunal has to say with regard to prison conditions in Iran and as to whether or not such conditions could amount to a breach of Article 3. We would not dissent from the President’s conclusions, but the circumstances of this case are somewhat different in that this respondent has been convicted of an offence for which the ultimate penalty could be death. In the circumstances, therefore, we do consider that the Adjudicator was perfectly entitled to the conclusion to which he has come, namely that there is a risk of an Article 3 breach were this appellant to be returned. 15. For these reasons we would accordingly dismiss the Secretary of State’s appeal.”
[10]It has been and remains the Defendant’s case that, notwithstanding the unequivocal terms of paragraph 15 in dismissing the Defendant’s appeal, the true effect of the decision, having regard to paragraph 13, was that the appeal against the Refugee Convention claim had been allowed by the Tribunal whereas it had dismissed the appeal against the decision on the Human Rights Convention point.[11]The matter was not greatly assisted by valiant attempts on the part of Mr. Adeli’s solicitors to obtain from the Tribunal Chairman clarification of the reasoning and decision reached by the Tribunal. The enquiries by the solicitors resulted in three letters from the Tribunal administration dated 10 March, 17 September and 1 December 2004 respectively. These letters are in the following terms: 10 March. “I am directed by Mr. Rapinet, the Acting Vice President and Chairman of the Tribunal that determined this appeal to reply to your letter of 3 February 2004. Mr. Rapinet’s view is that having upheld the Adjudicator’s findings as to credibility the Tribunal considered that the appeal should be allowed under Article 8 of ECHR for the reasons set out in paragraph 14 of the determination, namely the risk of death upon return as a person convicted of a criminal offence, carrying the death penalty. Your comments with regard to reporting the case are noted and will be considered”. 17 September. “I am directed by Mr. Rapinet to reply to your letters of 22 March and 11 May 2004. It is apparent from the determination that the Secretary of State’s appeal has been dismissed with the results that flow therefrom. It is regrettable that the letter to you of 10 March refers to Article 8 of ECHR. This was a typographic error. The correct Article is Article 3”. 1 December. “I am directed by Mr. Rapinet to reply to your letter of 11 November 2204. It is his view that paragraph 13 of the determination makes it clear that the Home Office appeal in relation to the Refugee Convention claim is allowed for the reasons set out in that paragraph, namely that the claimant would be prosecuted not persecuted. Paragraph 14 makes it clear that the Home Office appeal in relation to Article 3 is dismissed for the reason given in that paragraph.”[12]So far as these letters from the Tribunal are concerned, the parties are agreed that they cannot be determinative of the true meaning of the decision in issue, but can only serve as extrinsic aids to construction of the decision itself. If that is the correct status of the letters, it can be seen that they are actually contradictory and are, in my view, therefore, little (if any) help in the task before me. I have borne in mind the points made about a similar problem by Stanley Burnton J in Nash v Chelsea College of Art & Design [2000] EWHC Admin 538 paragraphs 34-36, cited to me by Mr. O’Flaherty. Mr. O’Flaherty recognised that this case did not assist his submission that I should be guided by the Tribunal’s letter of 1 December 2004 alone.[13]In support of Mr. Adeli’s challenge to the Defendant’s decision, Mr. Husain made three principal submissions: 1) that, on its true construction, the Tribunal decision dismissed the Defendant’s appeal on both Conventions; 2) that if he was wrong about that a) the decision was made without jurisdiction, and/or b) it was manifestly erroneous in law; and 3) his client could not reasonably be expected to pursue the “alternative remedy”, suggested by the Defendant, that is that Mr. Adeli should pursue an appeal out of time to the Court of Appeal. The principal point for decision is the true meaning of the Tribunal’s decision.[14]On an initial reading, it seemed to me to be clear from paragraph 15 of the decision that the Defendant’s appeal from the Adjudicator had been dismissed in its entirety. The Adjudicator’s decision apparently unsuccessfully challenged was, “I allow the appeal on asylum grounds. I allow the appeal on human rights grounds, having regard to Article 3.” Nothing could apparently be clearer. However, Mr. O’Flaherty, who argued the case for the Defendant most persuasively, submits that that initial impression is wrong. He submits that paragraph 13 of the Tribunal decision, which deals with the Refugee Convention point, has the effect of allowing the Defendant’s appeal on that point. He argued that the crucial sentence in that paragraph is the following:
“We have considered whether or not the prosecution amounts to persecution but in the circumstances of this case we do not think that it does”
. It follows, says Mr. O’Flaherty, that the Tribunal allowed the Defendant’s appeal on this point because it decided that, on the facts as found, there was no well founded fear of persecution for Convention reasons.[15]Mr. Husain argues that this takes the quoted sentence out of context. He says it is clear that the Tribunal was accepting that the fraud disclosure could amount to “imputed political opinion” for the purposes of the Refugee Convention. The consequences of Mr. Adeli’s conviction arose “more” (but ex hypothesi, not exclusively) from the fact of prosecution than from the antecedent act of adultery and the Tribunal concluded that, so far as the prosecution alone was concerned, it did not amount on its own to persecution. Mr. Husain argues that the Adjudicator’s conclusion as to the political nature of the fraud disclosure was accepted; moreover, the adultery prosecution was accepted as a “set up” and, therefore, the Adjudicator’s decision on the Refugee Convention was being upheld. Otherwise, submits Mr. Husain, how could the Tribunal have ended its decision by dismissing the Secretary of State’s appeal.[16]Clearly, the meaning of the Tribunal’s decision must be construed in the light of its terms as a whole, without taking any particular passage or paragraphs out of context. The task is far from straightforward. In my view, paragraph 13 of the Tribunal decision is capable of bearing the meaning contended for by Mr. O’Flaherty. Equally, I find it impossible to rule out Mr. Husain’s construction of that paragraph. However, when looked at as a whole, I cannot find that the Decision really means that for which the Defendant contends. In paragraph 15, the Tribunal unequivocally dismisses the Defendant’s appeal as a whole. It is the determinative and operative part of the decision setting out the result of the case. If it had been truly intended to allow the appeal on one point and dismiss it on the other, I would have expected that distinction to be made clearly in paragraph 15 and the appropriate distinction to be made earlier in the reasoning. I would have expected, in short, that paragraph 13 would have said unequivocally that the Defendant’s appeal on the Refugee Convention point was allowed and paragraph 14 to have said that the appeal on the Human Rights Convention was dismissed. As it is, the decision dismisses the appeal as a whole but with one passage, on one reading, suggesting that another result should follow as to part. Given the ambiguity in paragraph 13 recognised by all in this case (see e.g, the Home Office letters at pp. 43 and 53 of the bundle), I think that the only reasonable course is to interpret the decision as a whole by reference to the unambiguous terms of paragraph 15.[17]There are good reasons for thinking the Tribunal would have intended the document to be read this way. I was told that the old Immigration Appeal Tribunal, unlike the High Court, did not produce formal orders consequential upon its decision; the decision constitutes the formal order. Such documents must be clear. Many litigants before the Tribunal (and before its successor body) will have limited (if any) recourse to legal representation. All will be relative strangers to this country. It cannot be right that they would have been expected to comb the interstices of legal reasoning to determine the results of their cases and I cannot believe that the Tribunal would have so intended. I am sure that the Tribunal would have intended that the result of the proceedings before it should be entirely clear even to a layman. It would have wished the parties to see clearly, at the end of the decision, the overall result of the case. It did this in paragraph 15, in spite of the difficulties that emerge when one analyses the earlier paragraphs.[18]For these reasons, I would hold that this claim for judicial review succeeds. In the circumstances, it is unnecessary to deal with the alternative points of challenge to the Defendant’s decision. I understand it to be conceded that, in this event, I should direct the Defendant to grant to Mr. Adeli indefinite leave to remain. However, in view of the history of this case, I would propose to hear Counsel as to the precise form of order, hopefully after they have agreed a draft between them.