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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> R v Immigration Tribunal, ex p. Alavi-Veighoe [1989] EWHC 1 (Admin) (20 July 1989) URL: http://www.bailii.org/ew/cases/EWHC/Admin/1989/1.html Cite as: [1989] EWHC 1 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
(CROWN OFFICE LIST)

MR. JUSTICE ROSE: This applicant seeks an order of certiorari in relation to a decision of the Immigration Appeal Tribunal on 23rd August 1988.

The applicant is a citizen of Iran who arrived in the United Kingdom with his father on 10th July 1984, holding a visit entry clearance issued in Vienna. They were found to be carrying £600,000 worth of heroin. They were arrested. They were tried and convicted on 31st July 1985 of an offence of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug. The applicant was sentenced for that offence to six years' imprisonment, and his father to nine years' imprisonment. The trial Judge made no recommendation for deportation.

Subsequently both father and son applied for political asylum and those applications were refused. On 1st June 1987 the Secretary of State for the Home Office decided to make deportation orders against both father and son under section 3(5)(b) of the Immigration Act 1971, on the ground that he deemed their deportation to be conducive to the public good. Both appealed under section 15 of the Immigration Act to differently constituted Tribunals who heard those two appeals separately on different occasions. On 14th July 1988 the father's appeal was allowed. On 23rd August the applicant's appeal was dismissed.

The relevant law is common ground. By virtue of the United Nations Convention relating to refugees, a refugee is any person who has "a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion". By paragraph 165 of the Statement of Changes in Immigration Rules, HC169, a deportation order will not be made against a person who refugee. It is common ground that the test of "wel is whether there is "a substantial risk" or "a re likelihood" of persecution.

Paragraph 154 of the Immigration Rules provides as follows:

"In considering whether deportation is the right course on the merits, the public interest will be balanced against compassionate circumstances of the case. While each case will be considered in the light of the particular circumsances, the aim is an exercise of the power of deportation that is consistent and fair as between one person and another, although one case will rarely be identical with another in all material respects."

Paragraph 159 provides:

"The Secretary of State has the power to deport a person if he deems it conducive to the public good. General rules about the circumstances in which deportation is justified on these grounds cannot be laid down, and each case will be considered carefully in the light of the relevant circumsances known to the Secretary of State including those listed in paragraph 156. Paragraph 156 provides:

"In considering whether to give effect to a recommendation for deportation made by a court on conviction the Secretary of State will take into account every relevant factor known to him, including... ..compassionate circumstances. ....".

In the case of R. v. Immigration Appeal Tribunal Ex parte Bakhtaur Singh (1986) I.A.R. 352, the House of Lords in a speech delivered by Lord Bridge held that paragraph 154 had to be read in conjunction with paragraphs 156 and 158, (the latter being immaterial for present purposes), and that there is no restriction on the ambit of "every relevant factor" and "all the relevant circumsances".

On behalf of the applicant Miss Weber attacks the decision of the Tribunal on the grounds: first, double jeopardy, secondly, consistency and fairness, and thirdly, religious persecution.

As to double jeopardy, Miss Weber submits that the Tribunal fell into error in that having correctly placed the applicant in the category of drug courier, they applied a policy for deportation without regard to the applicant's particular circumstances. She relies in particular on a passage at page 23 of the bundle, page 8 of the Tribunal's decision, which is in these terms:

"The truth of the matter is that those who elect to act as couriers if not principals in heroin smuggling must accept the consequences of what they choose to do for gain."

The particular circumstances in relation to this applicant were, submits Miss Weber, that so far as the offence itself was concerned, he had received a lesser sentence than his father because of the comparatively minor role which he had played and because that role was attributable to filial devotion. Furthermore, submits Miss Weber, the Tribunal failed to take into account other factors which increased from possibility to likelihood the risk of imposition of the death penalty if this applicant is deported to Iran. Those she identified as being that his brother, who was apparently implicated in an attempted coup has refugee status in France, his father has been recognised as qualifying for refugee status, this is a family which is westernised and was pro-Shah, and this applicant, before the events which led to his arriving at Heathrow in the circumstnaces which I have described, was, whilst in the United States of America, converted to Christinaity in a ceremony which included renunciation of the tenets of Islam.

Further submits Miss Weber the Tribunal, having rejected the claim for asylum on the basis of conversion to Christinaity and the potential consequences of the drug-smuggling conviction, paid no regard to those factors in relation to the possible imposition of the death penalty. She further submits that of the four cases cited by the Tribunal at pages 25 to 26 of the bundle in the course of their decision, only the case of Bhart is relevant to double jeopardy, and in none of the other three authorities was double jeopardy a factor.

As to consistency and fairness, Miss Weber submits that the Tribunal failed to follow the guidance in paragraph 154 which I have already read, in that they failed to compare like with like in order to achieve the consistencey and fairness to which that paragraph refers. At page 24 of the bundle she says that the Tribunal distinguished the case of father and son on the basis that the father's claim to asylum was accepted but the son's claim was not accepted, but the Tribunal failed to see the conspicuous points of similarity between the cases which made them virtually identical, in particular that it was a joint criminal enterprise upon which they were together involved, and that they were father and son. She submits it is difficult to imagine a case in which the comparison carried out to procure the consistency enjoined by paragraph 154 would be more appropriate.

She further submits that there are two further factors which, if anything, make the son's position stronger than that of the father, namely his conversion to Christianity to which I have referred, and which the Tribunal at page 22 accepted would cause his position to be difficult, and the father's major role compared with the son in the criminal offence.

As to persecution on the grounds of religion, Miss Weber relies first on a passage at page 22, where the Tribunal say:

"Nor do we consider the evidence sufficient to hold that he will face persecution for his religious opinions...",

and a similar passage at page 23:

"...we do not accept in the events which have happened that he would be persecuted for his religious opinions...".

That, submits Miss Weber, is plainly an application of the wrong test, which is not certainty, but, as is common grond, reasonable likelihood. In response to those submissions Mr. Laws says that the Tribunal were entitled to, and did, take a very grave view of drug smuggling, but albeit they took that view, they did not in any way fetter the discretion which they had to exercise, taking into account the circumsances of the particular case before them. The Tribunal took into account, as they were entitled to, that the law in Iran imposing the death penalty for drugs offences dated from 1979 and its draconian provisions can therefore be taken to have been known to the applicant when he embarked upon his criminal acitivities. And, says Mr. Laws, the context of the Tribunal's comment in relation to the consequences of drug smuggling is such that it shows that the Tribunal was merely expressing a general view in response to Amnesty International's view recited a little earlier in the decision and set out at pages 22 and 23 of the bundle.

Mr. Laws relies on this passage at the foot of page 23:

"We have read with care the letters on file from Mr. Goodman, Lt. Col. Wilson and Pastor Wall: we have studied the written submissions of the appellant and noted his and other witnesses evidence before us. We consider his claims in relation to political asylum to be exaggerated, we do not accept in the events which have happened that he would be persecuted for his religious opinions and we do not accept that the possible effect of Iranian laws constitutes a strong compassionate circumstance."

A fair reading of the decision, submits Mr. Laws, shows that in context the comments of the Tribunal are a response to Amnesty International's view, that the Tribunal have considered the evidence in relation to compassionate circumstances and therefore, submits Mr. Laws, the challenge on the basis of fettering fails: unless that is, he concedes, the Tribunal have failed to consider a piece of evidence so that it can be said that the decision is Wednesbury unreasonable.

So far as the authorities cited by the Tribunal are concerned, the three which appear at page 26, submits Mr. Laws, are part of the decision where the Tribunal is not considering double jeopardy but the seriousness of heroin smuggling. The last paragraph on that page shows, he says, that there was no misunderstanding of those authorities. That passage is as follows:

"It seems however to us that the High Court has consistently taken the view that drug smuggling on a commercial scale is one of the most serious offences to which deportation under section 3(5)(b) may attach."

As to inconsistency, Mr. Laws rightly draws attention to the passage at page 25, where part of paragraph 154 is set out, namely, "the aim is an exercise of the power of deportation that is consistent and fair as between one person and another". The Tribunal, says Mr. Laws, mentioned some of the distinctions between the son's case and the father's, but the decision made by the Tribunal is made not on the basis that the cases are different, but because in the Tribunal's view no sufficient compassionate circumsance exist to Justify allowing the appeal.

The whole decision on a fair reading shows that the Tribunal have assessed the relevant factors, including the conversion to Christianity and the role played by the applicant in the criminal offence. The decision of the Tribunal, submits Mr. Laws, really comes in two stages, the first stage ending at the foot of page 23 in the passage which I have just read and at the top of page 24, whee the Tribunal says this:

"Taking account of the nature and extent of the crime and balancing that against the factors prayed in aid on behalf of the appellant, we conclude that the decision to deport was correct ...... we do not consider that the compassionate circumstances outweigh the public interest."

Thereafter, submits Mr. Laws, there comes the comparison with the case of the father, but the Tribunal have already earlier, and properly, dealt with all the points relied on by Miss Weber. If, submits Mr. Laws, the first stage of the Tribunal's decision is unimpeachable, and if they had then gone on to allow the appeal, such a decision, he suggests, would have been susceptible to challenge, because they would have elevated paragraph 154 to a position as touchstone, overriding the earlier properly reached decision.

As to the risk of religious persecution, Mr. Laws submits that the passages at pages 22 nd 23 which I have read out, and on which Miss Weber relies, disclose no misdirection when those passages are viewed in the context of the Tribunal's earlier references at pages 19 and 20 to the "low standard of proof" in the context of political asylum. And, submits Mr. Laws, the references at page 21 to the evidence of the probation officer, Mr. Goodman, show an apparent carry through in the Tribunal's thinking from political asylum to religious asylum.

In considering the relevant merits of these sumissions, I approach the matter having well in mind three principles. First, it is not the role of the Court to substitute its view for that of the Tribunal whose decision in the present case can only effectively be challenged if it discloses an error in law or a failure to consider relevant matters or unfairness. Secondly, the decision of the Tribunal must not be construed like a statute. Thirdly, as Lord Bridge emphasised in Bugdacay v. Secretary of State for the Home Department (1987) AC 514 at page 531F, a decision such as in the present case, which involves the gravest of issues is susceptible to rigorous examination.

In the light of these principles I am nable to accept the essence of Mr. Laws' submission which is that a fair reading of this decision shows that the Tribunal adopted an unfettered approach to double jeopardy and a correct direction as to religious asylum. I do not accept in relation to either of these matters that the content or context of the decision are capable of such an interpretation. On the contrary, as to double jeopardy, although at page 23 the Tribunal starts, as I accept, by making a general comment in response to Amnesty International's views, that comment appears to conclude with the words, "We cannot accept that proposition and the universal condemnation of large-scale drug smuggling by the United Nations and other international bodies leads us to believe that such a proposition would receive very little general support." That is a reference to the opposition by Amnesty International to the death penalty in all cases. In my judgment the separate paragraph which follows is not capable of being understood as part of a general riposte to Amnesty International. I quote it again, although I have quoted it at an earlier stage:

"The truth of the matter is that those who elect to act as couriers if not principals in heroin smuggling must accept the consequences of what they choose to do for gain."

That, in my judgment, is a clear statement of the Tribunal's view that those who smuggle heroin must accept the high probability, if not the expectation, of deportation. It is a view which is repeated and underlined by the authorities cited and the conclusion expressed at page 26 of the decision to which I have already referred. Yet there appears to be in the Tribunal's decision no consideration given, for example, to the potential difference of particular significance in the present case, between deportation to a country with and to a country without the death penalty in relation to drug smuggling. This, as it seems to me, is capable of being a relevant matter in considering compassionate circumstances.

Furthermore there is no express reference at pages 22 and 23, where the Tribunal are considering the double jeopardy point, to the part played by the applicant in the criminal offence, to the lesser sentence that he received, to the particular circumstances of his brother and father, or to the applicant's conversion to Christianity. I am not persuaded that the reference at page 23, which I have already read out, to the letters from Mr. Goodman, Lt. Col. Wilson and Pastor Wall, and to the submissions on the applicant's behalf, shows that the Tribunal had regard to these factors in relation to their possible impact on double jeopardy and in relation to the carrying out of the death sentence.

Alternatively, it cannot in my view be said that the Tribunal here unequivocally considered these matters in this context. Therefore the ambiguity in a case such as this must, as it seems to me, be resolved in the applicant's favour.

Similar considerations, in my judgment, apply in relation to the Tribunal's approach to religious asylum. The Tribunal did, as it seems to me, misdirect themselves on this aspect in the passages to which I have referred and on which Miss Weber relied. In the alternative, the comments made by the Tribunal are sufficiently ambiguous, if they are properly to be regarded in the context of those passages to which Mr. Laws referred, for the matter again to be resolved in the applicant's favour.

I furthermore accept Miss Weber's arguent that the Tribunal at pages 25 and 26 did not fairly carry out a comparison of like with like and the decisin is therefore susceptible to challenge on that ground, having regard to the terms of paragraph 154, which require a striving for consistency. There could, in my judgment, hardly be two more similar cases than of this father and of this son, and the distinctions sought to be drawn by the Tribunal are, as it seems to me. without a difference, and demonstrate in all the circumstances unfairness of which complaint can properly be made.

For these reasons this application succeeds and the decision of the Tribunal will be quashed.

MISS WEBER: I am grateful my Lord. I think that the only other application that I have is of costs.

MR. LAWS: Which is not resisted, my Lord.

MISS WEBER: I am grateful. I would ask for legal aid taxation.

MR. JUSTICE ROSE: The applicant will have his costs and an order for legal aid taxation. I am grateful to both counsel for their help.