ASYLUM AND IMMIGRATION TRIBUNAL

MM (Section 8:  commencement) Iran [2005] UKAIT 00115

THE IMMIGRATION ACTS

Heard at: Field House					Date of Hearing: 25 May 2005            

Date Promulgated: 5th July 2005

Before:

Mr C M G Ockelton (Deputy President)
Miss E Arfon-Jones (Deputy President)
Mr A Jordan (Senior Immigration Judge)

Between

Appellant

and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant:		Mr S Chelvan instructed by Switalski’s Solicitors
For the Respondent: 	Mr G Phillips, Home Office Presenting Officer

Section 8 of the 2004 Act came into force on 1 January 2005 and applies to decisions made after that date even if the claim was made previously.  It has no objectionably retrospective effect.

DETERMINATION AND REASONS

1.	The Appellant is a citizen of Iran.  It is not in dispute that he entered the United Kingdom illegally.  His account of that is that he went from Iran to Turkey about 9 October 2004 and travelled from Turkey to the United Kingdom by road in the back of a lorry.  He claimed asylum on 26 October 2004, which he says is the day he arrived here.  After examination of his claim, the Secretary of State refused it on 9 December 2004 and made a decision to remove him from the United Kingdom.  Against that decision the Appellant appealed, and his appeal was heard by an Adjudicator, Dr A Thorndike, who, in a determination sent out on 1 March 2005, dismissed it.  The Appellant applied for and was granted permission to appeal to the Immigration Appeal Tribunal.  Following the commencement of the appeals provisions of the 2004 Act, that grant takes effect as an Order for reconsideration of the Appellant’s appeal by this Tribunal.

2.	The basis of the Appellant’s claim was that he was at risk of persecution in Iran because of his association with Iran Paad, a banned pro-royalist group.  His claim is that he and a friend had a women’s clothes-making and boutique business in partnership.  One day, when the friend was out, the Appellant noticed that he had left some Iran Paad publicity material in the office.  When his friend returned, the Appellant expressed his interest and was shown a secret part of the building where there was a photocopier and a paper cupboard.  That was in February 2004.  One day when he came to work in September 2004, he saw the police arresting his partner and friend, so, with the help of his father, he immediately made arrangements to go to London.  

3.	The Appellant expanded on this account in his oral evidence.  He was cross-examined, and a number of apparent implausibilities and inconsistencies were put to him.

4.	During the course of his evidence, the Appellant confirmed that he had not in fact himself had any dealings with Iran Paad when he was in Iran.  He said, however, that he had been involved with the organisation in the United Kingdom and had participated in a demonstration outside the Iranian Embassy in London on 11 February 2005.  In the course of submissions, the Adjudicator was invited by the Appellant’s representative to treat him as credible and to find that, in any event, the Appellant was now a refugee sur place as he would be at risk as a result of his known Iran Paad activities whilst in the United Kingdom.  

5.	The Adjudicator does not appear to have been shown any evidence tending to suggest a current risk to Iran Paad supporters in Iran.  He was asked to take the view that, as the United States State Department and Human Rights Watch both spoke of a repressive state, he should assume that those associated with Iran Paad would be subject to persecution.  In particular, he was asked not to take account of the fact that the most recent CIPU Report made no reference to current persecution of Iran Paad members.

6.	The Adjudicator’s findings and conclusions are set out in the seven paragraphs numbered 34 to 39 (sic) of his determination, which are as follows:

“34.	In reaching my conclusions I have taken account of all the evidence before me, including the background information, particularly in so far as the Iran Paad is concerned.

35.	I regret to say that I do not find the appellant to be credible, because of the number of discrepancies and the distinct lack of evidence regarding the activities of Iran Paad in Iran and the persecution of its activists by the Iranian state authorities.  I do however accept that he was in partnership in a business making and selling women’s clothing.  It may well be that his business partner was arrested, but for what reason I do not know.

36.	It is my belief that he has taken advantage of this arrest to fabricate a story in order to justify asylum in this country.  If he had been truthful as to why he had come to United Kingdom, he would have clearly stated on arrival that it was for political reasons.  If he had been truthful about the organisation of which he said he was a member who distributed leaflets on a regular basis, he would have known full well what the name of the organisation was at the outset.  He would have also known that it would have been noted on the literature.  If Nazari had gone to such precautions to hide from the appellant the fact that there was a secret sub-basement in the building – a secret kept for some three years – I do not find it plausible that he would have left Iran Paad (or any opposition) leaflets around in a place where staff could easily see them.

37.	The appellant made serious allegations regarding the conduct of the interpreter at the screening interview.  This is not noted by the Home Office interviewer and until the hearing nothing had been said about this before.  I believe he has made this up to cover up shortcomings in his evidence.

38.	Credibility is as noted in paragraph 4 above an issue in the respondent’s decision.  I also take account of section 8 of the 2004 Act (“credibility”) which obliges me to take note of challenges to credibility.  As recorded in the immediate preceding paragraphs, there are a number of discrepancies which I regard as significant as going to his credibility.

39.	Despite Mr Andre’s submission, although I am conscious that no country report can be fully inclusive there is absolutely no evidence to show Iran Paad has any significant presence in Iran, let alone that is adherents of whatever level were persecuted.  In any event, the appellant by his own admission was a very low level activist.  It was only right at the end of his evidence under cross-examination that he mentioned his parents were supporters of the monarchy.  The fact of the matter is that the monarchy was overthrown over 25 years ago.  It is history.  I also note that the demonstration in London was not organised by Iran Paad but by another pro-monarchy organisation exiled in London.  Even if I were to find the appellant credible, which I do not, his claim to asylum is not objectively well-founded.

39.	For these reasons, I do not believe he was persecuted for political reasons, and I do not believe he would be persecuted if returned to Iran, or subjected to ill-treatment to be threshold demanded by article 3 ECHR.  I therefore dismiss both his asylum and human rights appeals.”

7.	There are three grounds of appeal on which permission was granted.  They may be summarised as follows.  First, the Adjudicator should not have applied section 8;  secondly, he should have placed minimal emphasis on the CIPU Report in the light of criticism of CIPU Reports in general;  thirdly, he should have taken more seriously the risk arising from the Appellant’s claimed activities in London.

8.	We deal first with section 8 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004.  The ground of appeal to the Immigration Appeal Tribunal on section 8, settled, we understand, by counsel (not, we emphasise, Mr Chelvan, who appeared before us) is as follows:

“The application of s.8 2004 Act (para 38) breaches natural justice;  ECHR Art 6;  and the (unwritten) constitution, because it has been applied in such a manner as:

(a)	the executive seeks to bind the judiciary;  and
(b)	is applied with an imprecise broad brush by not identifying the weight placed on each (purported) inconsistency.”

9.	Very wisely, Mr Chelvan did not seek to rely on the ground in precisely those terms before us.  What he did argue was that, although section 8 of the 2005 Act came into force on 1 January 2005, the Commencement Order should not be regarded as affecting those who had made their claim before that date.  The reasons argued were first, retrospectivity, and, secondly, unfairness.

10.	Section 8 of the 2004 Act is complex.  We do not need to set it out in full.  Subsection (1) is as follows:

“(1)	In determining whether to believe a statement made by or on behalf of a person who makes an asylum claim or a human rights claim, a deciding authority shall take account, as damaging the claimant’s credibility, of any behaviour to which this section applies.”

Subsections (2) to (6) then set out, by way of definition, the types of behaviour to which the section applies.  They include, for example, failure to claim asylum in a safe country, destruction or alteration of documents, and other behaviour designed or likely to mislead.  Subsection (7) contains definitions, including that of “deciding authority” which is defined to include the Secretary of State, immigration officers, and this Tribunal, which itself by subsection (13) is extended to include Adjudicators and the Immigration Appeal Tribunal.

11.	As Mr Chelvan recognised, section 8 was brought into force, by SI 2004/3398, on 1 January 2005.  There were no express transitional provisions.

12.	Mr Chelvan’s argument was that, despite the absence of transitional provisions, section 8 could not have been intended to have effect in the assessment of claims already in progress on the commencement date.  That would be to give it a retrospective effect, because it would apply to behaviour by an Appellant that had already taken place.  He referred us to Bennion’s “Statutory Interpretation:  A Code”, 4th Edition, 2002, section 97, which is headed “Presumption against retrospective operation” and reads:

“Unless the contrary intention appears, an enactment is presumed not to be intended to have a retrospective operation.”

13.	Unfortunately for Mr Chelvan, his argument faces formidable difficulties.  As Bennion’s comment on section 97 makes clear, the concept of retrospectivity is often misunderstood:

“It is important to grasp the true nature of objectionable retrospectivity, which is that the past legal effect of an act or omission is retroactively altered by a later change in the law.  However, the mere fact that a change is operative with regard to past events does not mean that it is objectionably retrospective.  Changes relating to the past are objectionable only if they alter the legal nature of an act or omission in itself.  A change in the law is not objectionable merely because it takes note that a past event has happened, and bases new legal consequences upon it.”

14.	Antonelli v Secretary of State for Trade and Industry [1998] QB 948 is cited as an example.  In that case, an act of 1979 enabled estate agents to be inhibited from practice if they had been convicted of an offence involving fraud or dishonesty or violence.  It was held that there was no objectionable retrospectivity in applying the Act to a person who had been convicted of such an offence before the coming into force of the Act.  The parallel with the present case is quite close:  indeed, it is closer still when we take into account Mr Chelvan’s second principal submission, which was that the Appellant is prejudiced by the application of section 8 to him.  For that submission to have any force, it must be assumed that the Appellant had a choice whether or not to engage (without reasonable explanation) in behaviour which is now behaviour to which section 8 applies.  If he did have such a choice, it does not seem to us that he can claim that he is prejudiced by a decision maker taking his behaviour into account as damaging his credibility, whether under section 8 or otherwise.  The estate agent in Antonelli may have wished, in retrospect, that he had taken better care not to be convicted of an offence:  but he had to take the consequences of his acts, and this Appellant must do so too.

15.	We have dealt with Mr Chelvan’s arguments under section 97 of Bennion because that is the way in which he put them to us.  It does, however, appear clearly to us that the provisions in question are procedural rather than substantive.  The general rule for procedural provisions is that they have effect in pending as well as future proceedings, so the application of section 8 to claims already in progress would not be particularly surprising.  (We recognise that an argument against objectionable retrospectivity can be applied to procedural provisions too.)

16.	For the foregoing reasons, we reject the Appellant’s claim that section 8 of the 2004 Act should not have been applied to him.  We have to say, however, that we are surprised that the argument was put.  The Adjudicator’s treatment of section 8, in one sentence of paragraph 38 of his determination, is clearly hopelessly inadequate.  In fact, it is surprising that the sentence “I also take account of section 8 of the 2004 Act (‘credibility’) which obliges me to take note of challenges to credibility” could have been written by a person who had even glanced at the provisions in question.  Not only is the title of the section abbreviated, but its effect is wholly omitted.  As we have indicated above, section 8 is about the effect of certain types of specified behaviour in assessing credibility:  it applies regardless of any specific challenges.  There were no doubt  a number of matters which the Adjudicator ought to have taken into account as behaviour to which section 8 applies.  There is no trace of his having done so.  All he says in this context is “There are a number of discrepancies which I regard as significant”.  That is not something with which section 8 has anything specifically to do.

17.	Our conclusion on this issue is that section 8 bound the Adjudicator;  that he failed to apply it;  that that was an error of law;  but that it was not a material error, because he disbelieved the Appellant in any event.  

18.	We pass on to Mr Chelvan’s second major ground of appeal, which related to the Adjudicator’s treatment of the objective evidence.  That ground was originally formulated by reference to a general criticism of the CIPU Reports, which itself is of doubtful currency.  So far as the present case is concerned, we must look to see what was before the Adjudicator.  There were of course in all the country reports before him general statements about the repressive nature of the government in Iran.  So far as Iran Paad itself is concerned, however, the only reference appears to be that at paragraph 6.185 of the CIPU Report, as follows:

“According to a 1998 report from the Netherlands Ministry of Foreign Affairs on the situation in Iran, activities of opposition groups such as Tudeh, Iran Paad, Komala and Fedayeen had not been evident in Iran in recent years.  However, since then it has been reported that over 1,000 members of such dissident groups were executed in 1988/1989, including 38 named members of Tudeh and the situation for the Kurds appears to have deteriorated recently.  However, according to a March 2003 Amnesty International Report a number of Kurds, including members of Komala, have been executed in recent months.”

19.	Mr Chelvan confirmed that there was no evidence before the Adjudicator that those with royalist views are currently at risk in Iran.  That, as it appears to us, is sufficient to conclude the matter.  The evidence before the Adjudicator was wholly insufficient to demonstrate that the Appellant would be at risk as having been associated with Iran Paad activities in Iran, even if he were to be regarded as credible.

20.	The third ground of appeal relates to the claimed sur place activities.  As Mr Chelvan conceded to us, there was no evidence other than that from the Appellant.  The Adjudicator did not believe the Appellant, and, bearing in mind that the Appellant was not generally regarded as credible in his story, there is no reason why he should be regarded as credible in his claim of having been involved in a demonstration.  The Adjudicator gave other reasons for his doubts about that.  But even if it were the case that the Appellant had taken part in an Iran Paad demonstration in London, there is absolutely no evidence of a record being taken by the Iranian authorities in such a way as might endanger the Appellant if he were to be returned.

21.	For the foregoing reasons, these latter two grounds disclose no error of law by the Adjudicator.  He made his decision properly on the evidence that was before him.  The error of law in relation to section 8 was not, as we have said, material.  

22.	There was no material error of law and we therefore affirm the Adjudicator’s determination.

C M G OCKELTON
DEPUTY PRESIDENT
          Date: