The decision

MS (Fresh Evidence) Iran [2004] UKIAT 00130


Date of Hearing: 13th May 2004
Determination delivered orally at Hearing
Date Determination notified:
08 June 2004


The Honourable Mr Justice Ouseley (President)
Miss K Eshun (Vice President)
Miss J Grimmett




Secretary of State for the Home Department

For the Appellant: Ms R Chowdhury, instructed by Clore & Co Solicitors
For the Respondent: Mr S Bilbe, Home Office Presenting Officer


1. This is an appeal against the determination of an Adjudicator, Mrs S Turquet, promulgated on 4th September 2003 following a hearing on 21st August 2003. The appeal against the Notice of Decision of the Secretary of State containing removal directions for the Appellant to Iran, raised asylum and human rights grounds. The appeal was dismissed on both grounds.

2. The essence of the Appellant’s case was that she had been persecuted by her husband, his family and her family that she had also been persecuted by the Islamic regime of Iran, and she had been summonsed to appear before a religious court for adultery. She had said that her marriage had been terrible and that her husband had subjected her to very degrading treatment. She had been abandoned by him and, in order to provide for herself and her child, had gone to stay with a friend but had been treated as a servant there.

3. Later, she had met Daroush who helped her obtain a divorce from her husband. In addition to obtaining a divorce from her husband, she had succeeded in obtaining custody of her child. She said that her family had taken against her because she had written poetry which was adverse to God and she had had a dream about Christ. She had also gone to church with a friend which had lead to her being arrested by the Kometi.

4. After her divorce, she had entered into a “mattah” or temporary marriage for a period of five years. She had entered into it one month after her divorce and thus during the period of three months and eleven days, the “Iddah”, during which it is forbidden to a Muslim woman to remarry following a divorce. This meant that her family knew that she was guilty of adultery; they had reported her to the Iranian religious authorities, her brother and her ex-husband’s family threatened her and sought to take her child away from her and her life had ceased to be safe in Iran.

5. The summons before the religious court meant that she risked death from stoning. She explained various matters about her involvement with the church. It was plain from what she was saying that her concern was not to escape the husband; her concern was about the way in which her adultery would cause her to be stoned to death, and whether her father and brothers, if they wished to kill her, would be able to do so because they would face no punishment.

6. The Secretary of State rejected the claim for a variety of reasons. In particular, he did not accept the credibility of her claims in relation to the way in which she became involved with Daroush and the risk of any adultery charge. That letter made it clear that the Secretary of State considered that the information she had given was vague and had been fabricated in order to enhance a weak asylum claim. The significance of those comments are that the Appellant would have been very clear from the Secretary of State’s letter of 11th February 2003 that the success or otherwise of her claim could depend critically upon her showing credibly that she was indeed at risk of prosecution for adultery and that the religious and other authorities were taking what she said she had done seriously in that respect.

7. The Adjudicator agreed with the findings of the Secretary of State. She referred to inconsistencies in the Appellant’s various accounts. She pointed out that the Appellant is a well educated woman who worked in Iran. Her work was variously described as a psychiatric consultant or a family consultant dealing with exceptional children. She had said that she had managed to pay the rent for accommodation because she was working, although on another occasion she said she had had to sell valuables to pay rent and for food which were seen as inconsistent statements. There was inconsistency over certain of the allegations of treatment by the husband in the marriage. The Adjudicator concluded that the introduction of rape allegations at a late stage was an attempt to elaborate her asylum claim.

8. The Adjudicator also found inconsistencies in the way in which the Appellant described her relationship with her family. In her SEF statement she said that her family did not help her when her husband had started to abuse her, they had rejected her; but in her interview she said that her family agreed that she was being abused, asked her to get a divorce, and told her husband to permit the divorce. She said later that she had not sought help from her family; she had only sought help from a maternal aunt and had not been in contact with her family for about eight years. Again, later she said that she had never told her family about the beatings, but her mother had seen how she was treated in public. Her mother had advised her to divorce her husband.

9. There were other discrepancies in relation to whether it was her brother or brother-in-law or both who were waiting for her when she had gone to fetch her son from school on one occasion in order to do her harm. The Adjudicator found implausible various statements that were made about her interest in Christianity and dreams about Christ.

10. The Adjudicator pointed out that the Appellant said that she started to live with Daroush in 2000 shortly after meeting him. She said this:

“35. At this time she was married to her husband but living apart. I accept that in Iran a woman suspected of adultery may well face serious consequences; I therefore find it implausible that this Appellant, an intelligent and well-educated woman, would have taken the risk of living with another man, while still married. I note that the Appellant has not mentioned any problems, while living with Daroush, until shortly before her divorce. This leads me to conclude that she was not living with him in a sexual relationship. Mr Daroush gave evidence. I found some of his answers evasive, when he was asked about his future intentions in relation to the Appellant. He was very hesitant in answering. He said that he lived with the Appellant, although he knew she was in the process of getting a divorce because he thought that he was doing a humanitarian job and the Appellant was lonely. I find it implausible that he would put the Appellant more at risk by living together in a sexual relationship. I find it likely that he may have helped her with her divorce but that they did not live together in a relationship as claimed”.

(Although the Adjudicator refers to 2000 as when the Appellant started living with Mr Daroush, and she may well have said that, the questionnaire (Q23) refers to it being April 2002. If the latter date were correct, it would simply raise the alternative problems for the Appellant that she had lived on her own, separated from her husband, for two years, and had no need to rush into a temporary marriage for security, least of all during the Iddah period.)

11. The Adjudicator then turned to the way in which the relationship was said by the Appellant to have developed:

“36. The Appellant and Mr Daroush have said that they went through Mattah, a temporary marriage, on 27.3.2002. Ms Brewer submitted that this marriage was to give the Appellant some security. I find it implausible that the couple, if they were living together in a relationship, which could have disastrous consequences for the Appellant if known, would then seek to regularise the situation by this ceremony. The report of Dr Ansari, submitted by the Appellant, indicates that a registered temporary marriage would be viewed with contempt by Iranian families. She would have been viewed as little more than a prostitute, a woman of ill-repute. She would have been seen as conducting a very blatant act of adultery. I do not find that this Appellant, in these circumstances, would have gone through a temporary marriage. There is a document purporting to be the marriage contract. I place little weight on this document as evidence of the marriage. There is nothing official on it.”

(The marriage certificate may have been changed from 2000 to 2002, but nothing appears to turn on that.)

12. The divorce deed showed that the divorce was at the wife’s request and that the husband had indeed not been granted custody of the child. The Adjudicator rightly pointed out that that suggested that the husband may have had mental problems, because it is normal on divorce in Iran for the father to receive custody of the child.

13. The Adjudicator then turned to a related matter of some significance:

“38. The Appellant had mentioned in her SEF that she was summoned to a religious court on 4.9.1381 (25.11.2002) to attend on the 28.11.2002. She repeated this in her interview. She had submitted a copy of this at the hearing that was adjourned. This document is an invitation asking her to attend to explain some issues. The place of presence was the Social Circle Department. There had been no mention before the date of the hearing before me of any further summons. At the hearing, the Appellant submitted a summons issued on 10.9.1381 (1.12.2002) to attend the Family Community Bench on 14.12.2002 to answer questions relating to her illegal marriage before ending her marriage. I do not place weight on this document. If it had been in existence before, I would have expected the Appellant to have mentioned it. Mr Daroush said that it was delivered to his home and he told the officer that the Appellant had left. If the officer had been told that the Appellant had left, it would not be plausible that the summons would be left on the premises. I note that the letter from the British Embassy in Tehran dated 4.12.2000, in the Respondent’s Bundle, states that outside every court in Iran there are any number of freelance typists, who can produce all sorts of legal and bureaucratic documents. Similarly I place little weight on the document, which was called the Police Summons at the hearing. It is couched in very vague terms. If adultery were regarded in such a serious way in Iran, I do not find it likely that someone suspected of this would be invited to attend to explain some issues. I do not find that the Appellant was summoned to court in relation to adultery.”

14. The Adjudicator dealt with other matters including the fact that she continued to work at her former employment provided by Mr Daroush and she would deal with those who made appointments in her other occupation dealing with exceptional children. She concluded that these were not the acts of woman in genuine fear: the Appellant would not have stayed so long in Iran before leaving if she were being persecuted. The Adjudicator rejected the claim that the Appellant was accused of adultery and concluded as well that she was not, therefore, a member of a particular social group and would not face risk as a returned asylum seeker.

15. The grounds of appeal in relation to the asylum claim are dependant, it is accepted, upon the report of an Iranian lawyer based now in Sunderland, a Mr Kakhki. In a report of 20th September 2003, he was asked if the original copy of the summons, which is referred to in paragraph 38 of the Adjudicator’s determination, was authentic. He sets out the tests which he uses to analyse whether a document is authentic and he comes to the view that it was an authentic document. He makes various other comments in a general way about the procedures in Iranian courts and what would happen to the Appellant if she went back. He says that on immediate arrival she would be arrested and taken directly to the court where she would be punished according to the law if she were found guilty. The punishment that he is talking about is punishment for adultery, which is being stoned to death.

16. The qualifications of Mr Kakhki are LLB 1990 Tehran, LLM 1997 Shiraz, and he is a first class attorney at law admitted before the Supreme Court, who spent five years as a practising first class attorney. Since August 2002, he has been providing expert evidence in relation to legal and immigration matters, as a resident of the United Kingdom since March 2002. He specifically states that as a first class attorney he has authority to assess and verify the authenticity of a variety of Iranian legal and government documents.

17. The Appellant, having obtained leave to appeal, then seeks from this Tribunal permission to rely on new evidence, the report of Mr Kakhki. The Immigration and Asylum Appeals (Procedure) Rules 2000, Rule 21, sets out what must be done if a party wishes the Tribunal to consider evidence not submitted to the Adjudicator. The two features of the written notice which must be served are that it must indicate the nature of the evidence and explain why it was not submitted to the Adjudicator. There is a time constraint on the service of the notice setting out those matters.

18. Ms Chowdhury, who has said everything which could be said on behalf of the Appellant, had to acknowledge that the Rule had not been complied with in any respect. She contended that the Secretary of State was not prejudiced because he knew that the Appellant was looking to rely upon the report of Mr Kakhki. It may very well be the case that the Secretary of State is not prejudiced by the failure to provide the notice, in terms of understanding the nature of the evidence. But it is also important to recognise that the Rules require an explanation as to why the evidence was not submitted to the Adjudicator; that explanation is an important part of the Tribunal’s consideration as to whether or not the evidence should be admitted. It is for the Tribunal to decide whether or not evidence should be admitted and it is a grave mistake, one unfortunately too often made, for parties to suppose that the Rules can be ignored and they can just turn up and put the evidence in without having to comply with the Rules.

19. The Tribunal, however, considered what explanation there was as to why the report of Mr Kakhki had not been submitted to the Adjudicator. There was no evidence as to why it had not been submitted to the Adjudicator. The only available explanation was that set out in the grounds of appeal prepared by counsel other than Ms Chowdhury. The grounds of appeal say that the summons had been sent by post to the Appellant with other documents on the 19th June 2003 and that the Adjudicator had failed to realise that the last witness statement was signed on 17th June 2003, before the documents had been received. Further, the Appellant stated to the Adjudicator, according to the grounds of appeal, “that she had not sent it to her solicitors because this document had been overlooked by her in amongst the other various documents that were kept inside the envelope” in which the summons had been sent to her.

20. We point out that where it is sought to rely upon an explanation of that sort, it is incumbent on the party to provide evidence as to what was said to the Adjudicator and as to why the document was not produced earlier. We are prepared to accept, however, for these purposes, that that is the explanation given to the Adjudicator as to why the summons, which is the subject matter of the expert’s report, was not produced until the day of the hearing. Inferentially, the reason why the expert report was produced later than the Adjudicator’s hearing was because the Appellant herself did not make the document available to her legal advisers until the day of the hearing. Indeed, Ms Chowdhury accepted that there was no evidence that anybody other than the Appellant or Mr Daroush was aware of the document until the day of the hearing. She had not communicated its existence to her solicitor at all, even by telephone, to see if this was something which was of relevance to her asylum claim.

21. We regard this underlying explanation as to why there could be no expert’s report made available to the Adjudicator as simply incredible. We point out that the summons was served, on its face, on the 1st December 2002 and that Mr Kakhki says that where a summons is served, it is signed for by the husband if served at his residence and that explains the signature of Mr Daroush upon it.

22. Mr Daroush, however, saw the Appellant on the 12th December 2002 according to answers which she gave in interview. Although the Appellant says that she had left his address before the summons arrived, because of an earlier summons from the religious court which she had failed to answer, it is inconceivable, if this document was genuine and has the import which Mr Kakhki attaches to it, that it was not mentioned to the Appellant by him.

23. It is also regarded as quite extraordinary that this document, which the Appellant said put her in fear of facing a serious charge which could lead to death by stoning, was not regarded by her as having a significant effect upon her asylum claim in the light of the Secretary of State’s dismissal of her application. She is, as assessed by the Adjudicator, an intelligent woman and the assertion that she received this summons only after signing her last witness statement provides no credible explanation as to why it was not submitted to the solicitor almost immediately upon receipt. The idea that it was just overlooked in amongst some other documents, as if it was a parking ticket, is not, to our mind, credible. We do not accept the suggestion by Ms Chowdhury that the Appellant was in such a state of mind that she could not possibly have been thinking in a normal way. The psychiatric evidence to which the Adjudicator refers simply does not bear out any such mental state.

24. The position, therefore, is that the explanation that has been provided is not credible. Even if true, it is perfectly clear that the evidence of Mr Kakhki could have been obtained with only the most modest amount of diligence by the Appellant referring the document to her solicitor, who would have realised that if headway was to be made with it, it would need to be supported by something weightier.

25. The Court of Appeal in E v Secretary of State for the Home Department [2004] EWCA Civ 49 is relevant to how the Tribunal should approach the admissibility of fresh evidence. It is concerned directly with the exercise by the Tribunal of its power to reconsider a case rather than to grant permission to appeal to the Court of Appeal; it was also decided under the 2000 Rules. However, having considered a number of earlier Court of Appeal decisions, including those which have commonly been cited in this Tribunal, it sets out principles which are also applicable to the reception of fresh evidence by the Tribunal when considering whether to grant leave to appeal to it and the appeal itself. The basis for the reception of such evidence cannot be wider under the 2003 Rules where the appeal is limited to a point of law. The principles in Ladd v Marshall, as set out in paragraph 23(ii) of E, are to be applied, but recognising that exceptional circumstances may exist in which justice requires that the fresh evidence be admitted. The failure of legal representatives is not a general exception. The mere fact that fresh evidence is admitted is not sufficient of itself to mean that an appeal should be allowed and a decision remitted.

26. The Court of Appeal said, in paragraph 92:

“92. In relation to the role of the IAT, we have concluded:
i. The Tribunal remained seized of the appeal, and therefore able to take account of new evidence, up until the time when the decision was formally notified to the parties.
ii. Following the decision, when it was considering the applications for leave to appeal to this Court, it had a discretion to direct a re-hearing; this power was not dependent on its finding an arguable error of law in its original decision.
iii. However, in exercising such discretion, the principle of finality would be important. To justify reopening the case, the IAT would normally need to be satisfied that there was a risk of serious injustice, because of something which had gone wrong at the hearing, or some important evidence which had been overlooked; and in considering whether to admit new evidence, it should be guided by Ladd v Marshall principles, subject to any exceptional factors.
We should emphasise that this analysis is based on the regime applicable to this case, under which the right of appeal to the IAT was not confined to issues of law (before the change made by the 2002 Act, s 101: see para 17 above).”
27. The principles in Ladd v Marshall are set out in paragraph 23(ii):

“New evidence will normally be admitted only in accordance with ‘Ladd v Marshall principles’ (see Ladd v Marshall [1954] 1 WLR 1489), applied with some additional flexibility under the CPR (see Hertfordshire Investments Ltd v Bubb [2000] 1 WLR 2318, 2325; White Book para 52.11.2). The Ladd v Marshall principles are, in summary: first, that the fresh evidence could not have been obtained with reasonable diligence for use at the trial; secondly, that if given, it probably would have had an important influence on the result; and, thirdly, that it is apparently credible although not necessarily incontrovertible. As a general rule, the fact that the failure to adduce the evidence was that of the party’s legal advisers provides no excuse: see Al-Mehdawi v Home Secretary [1990] 1AC 876.”

28. The new evidence in this case fails the first test in Ladd v Marshall.

29. In order to reach a view as to whether the material should be admitted exceptionally, we turn to the nature of the material. There are a number of problems with the report of Mr Kakhki. The first is that much of what he has to say is rendered rather less valuable than it might otherwise be because he is very dependant on the provenance of the document in the context of the evidence given to the Adjudicator. Of course, one cannot rule out material which may be relevant to credibility by saying that someone has been found to be not credible, where the evidence in question might go some way to supporting the credibility of that witness. But, as the Tribunal has made clear in Tanveer Ahmed [2002] UKIAT 00439*, how documents of this sort are approached involves a consideration of the reliability of the document and the weight to be attached to it in the context of all the evidence about it, and the evidence which the Appellant has given.

30. In this case, the evidence that the Appellant received a summons for having entered into an illegal marriage, illegal because it was in the Iddah period, involves the Adjudicator’s conclusions in paragraphs 35 and 36 of her determination. It is clear to us that those conclusions mean that the background to the production of this summons require considerable scepticism. As the Adjudicator pointed out, the Appellant gave evidence that she was living with Mr Daroush whilst she was still married to the husband before she got divorced. The address given on the divorce papers and the address where the summons was served are the same. It is extraordinary that the Appellant, now so concerned about the impact of her activities on the risk of a serious criminal charge, should have been in a relationship of that sort whilst she was still actually married.

31. It is even more extraordinary that the Appellant, after the divorce, with only a period of three months and eleven days to wait, should enter into an explicit form of temporary marriage after one month, and then obtain and present to the Adjudicator an expert’s report which, as summarised correctly by the Adjudicator, shows that those acts would undermine her honour and integrity in the minds of what might be called right-thinking members of the ordinary Shi-ite community. The “mattah” marriage is seen as a form of licence for clerical licentiousness and is generally disapproved of for that reason.

32. The next factor in the background is that Mr Kakhki makes no reference to a matter to which the Adjudicator adverts in her determination in paragraph 38, when she refers to it being evidenced, and not disputed, that outside every court there are freelance typists able to provide every type of court form for every purpose. Given that is so, it is particularly important for an expert to explain how he can tell that the document that he is examining is not one of those, and is instead a genuine document, bearing in mind that genuine blank forms may be obtained, indeed genuine stamps may even be applied to them, through bribery or inefficiency. He does not deal with that obvious problem, which the Adjudicator raised.

33. It is also our view that the report itself is over-simple in its approach to what might be said to the family court, and its response to the alleged offence of forming a temporary marriage during Iddah and the risk of stoning. This is particularly important in the light of what the Adjudicator said about the way in which adultery has to be proved. The Adjudicator specifically draws attention to the limitations on the evidence which has to be given; the strictness of the evidence is a corollary of the severity of the penalty. In order to be convicted of adultery, it is necessary for the evidence of the act of adultery to be given by four just men or three just men and two just women, neither of which condition was fulfilled (paragraph 24).

34. It is simply unrealistic for an expert to say that someone is at risk of that penalty without dealing with the ways in which the allegation has to be proved, and it would have been a problem for him even if the Adjudicator had not mentioned it. We would also point out, as indeed has been the case for a while, that the infliction of stoning is sporadic, rare, and according to the latest CIPU Report of April 2004, paragraph 6.212, is currently in abeyance.

35. The position, therefore, is that the expert’s report is not one which we regard it as necessary to admit exceptionally in order for justice to be done. It suffers from significant weaknesses in the Appellant’s case in any event, and itself contains significant weaknesses. We do not consider that, if it were allowed in, there would be a proper basis for saying that the Adjudicator might have erred in law and that the case needed to be reconsidered on credibility.

36. We now turn to the argument in relation to Article 3, Article 8 and suicide risk. The Appellant produced to the Adjudicator a report from a Consultant Psychiatrist, who is not unknown to the Tribunal, called Dr Steadman. He produced a lengthy report dealing with a range of psychiatric conditions. The Adjudicator referred to these matters in paragraph 45 of her determination:

“Article 8. Ms Brewer argued that the Appellant’s Article 8 rights would be breached if she were returned to Iran. She said that it would be disproportionate to return the Appellant, particularly in the light of Dr Steadman’s report and the report on the Appellant’s son. Dr Steadman’s Report gives a diagnosis of anxiety and depression. This was given after one meeting and based on the Appellant’s account. There is no indication that the Appellant is receiving psychiatric treatment. In any event, the CIPU Report states that there is an extensive range of specialist care in Tehran in both the private and governmental sectors. There are four regional centres for the prevention of mental health disorders. Efforts were being made to increase inpatient and outpatient mental health facilities and counselling services. If the Appellant returns to Iran, I am satisfied that there would be adequate health provision for her and her son. Dr Steadman stated that the Appellant’s son demonstrated abnormal attachment to his mother and was overactive and rather anxious. These conditions may well be attributable to being in a foreign country, where he has no one but his mother and cannot speak the language. The conditions in the receiving country do not meet the threshold for Article 3.”

37. Ms Chowdhury points out, and it is correct, that the Adjudicator in that paragraph makes no specific mention of one matter to which in the middle of his report Dr Steadman refers and that is risk of suicide. He sets out that the Appellant was sorrowful through most of her assessment and described various fears which she had. She said that she had taken three overdoses in Iran, the first one six months after her husband left her, the last some months before coming to the United Kingdom. On the last occasion, she had seen a psychiatrist and had been given medication because her heart would rise suddenly without warning. She then said when asked how she would cope if she was sent back to Iran that she would kill herself in preference to this but would not harm her son. Dr Steadman mentioned various risk factors and then said “it is my view taking all of the above into account that this lady would be at significantly increased risk of further self harm or suicide where she be returned to her country”.

38. Ms Chowdhury submits that the matter should be returned to an Adjudicator for him to assess the degree of risk in the light of that report and having heard evidence from the Appellant. She submitted that it was established that to return someone to a country, or indeed to decide to return someone to a country, where that person would face a real and significantly increased risk of suicide, involved a breach of Article 3. In this context she referred to the decision of Silber J in Kourtolli v SSHD [2003] EWHC 2744 Admin and to the Tribunal’s decision in P (Yugoslavia) [2003] UKIAT 00017. It is not necessary for the purposes of this decision to enter the debate about the effect, if any, of the decision in N v SSHD [2003] EWCA Civ 1369 on the earlier Court of Appeal decision in Soumahoro.

39. However, taking Ms Chowdhury’s proposition as broadly correct, the argument does not succeed on the facts. First, almost the sole basis for the briefly expressed material upon which Dr Steadman relies for his conclusion is what the Appellant told him. The Appellant has not been found to be credible in significant aspects of her evidence. Dr Steadman’s report is not a sound basis for doubting the Adjudicator’s conclusions in that respect. But it means that little weight can be given to what she told him. It is clear that she gave no such evidence herself to the Adjudicator, yet she had the opportunity to give any such evidence had she been so minded; it plainly is capable of being relevant.

40. Secondly, it is evident, simply from the case of P (Yugoslavia) and the criteria that are set out there for the assessment of risk of suicide, that Dr Steadman’s report is generalised, poorly analysed, and an unstructured document which provides very little by way of a sound basis for the conclusion to which he comes. We would expect cogent evidence to be adduced in order to make out any asserted risk of this sort because of the ease with which such an allegation can be made to bolster a weak case.

41. It is necessary for evidence of suicide risk to be far clearer than here; and the adding together of further self-harm and suicide in one sentence dealing with risk, as if there were no difference between the two and as if they could be equated, is entirely inappropriate. It does not follow at all that every act of self-harm could constitute some form of exposure to treatment which breaches Article 3.

42. We find the comments made by Dr Steadman in that respect wholly unpersuasive and though the Adjudicator might have mentioned it, we recognise that in the course of her very careful determination, she had dealt with the main points which were raised by the Appellant before her. It is expecting too much of an Adjudicator for her to trawl through every passage in a report of that length from Dr Steadman, unless particular points are clearly made by the Appellant at the hearing and supported in submission so that the Adjudicator knows what points really matter. We emphasise that because the volume of material produced in these cases is so extensive that it is not difficult at all for an advocate to find something that might have been placed in front of an Adjudicator that has not been referred to. We ourselves have been favoured, if that is the word, with a voluminous bundle of material including background material much of which is out of date and most of which is completely irrelevant.

43. This appeal is dismissed.