The decision

Heard at: Field House

On 5 July 2004

MS (Grounds of appeal: late amendment) Iran [2004] UKIAT 00200


Corrected transcript of decision given at hearing
Signed: 08.07.2004
Issued: 20.07.2004     


Mr JG Freeman (vice-president)
Ms JA Endersby
Mrs W Jordan




Secretary of State for the Home Department



For the appellant: Mrs A Heller, counsel instructed by Tann and Tann
For the respondent: Mr D W Saville


This is an appeal by a citizen of Iran from a decision of an adjudicator, Mr Nigel Mylne, QC, sitting at Surbiton on 24 October 2003 dismissing his appeal on both asylum and human rights grounds. The first ground, on which permission to appeal was given, suggests that the adjudicator misunderstood the nature of the appellant’s case about being forced to play football for the Basij paramilitary security force.

2. Ground 2 refers to a subsidiary ground for the adjudicator’s decision, which was mainly based on his rejection of the claimant’s credibility. This referred to the lack of any Refugee Convention reason for what the claimant said he feared. Grounds 3 to 6 also challenge the adjudicator’s credibility decision; but not on any basis which Mrs Heller has been able to put forward as potentially amounting to an error of law on his part in terms of E & R [2003] EWCA Civ 49. Although, as Mr Saville pointed out, the adjudicator gave some very detailed reasons for rejecting the appellant’s credibility, if Ms Heller could manage to show that he had clearly misunderstood the position of the Basij, then that might arguably amount to an error of law in terms of a decision of the Court of Appeal in ER.

3. Mrs Heller however, sought to add another completely new ground, which does not even appear in the detailed skeleton argument which she produced before us and first made its appearance at our hearing itself. That is based on the claimant having appeared in a vide film since shown on ITV in this country under the title of “Lions in the Dust”. He gave a history of that before the adjudicator, which appears at pages 6 to 7 of the decision. [We should say that we very much hope the adjudicator will in future adopt what is now the almost universal practice of numbering individual paragraphs.] The relevant history is as follows:

In the UK he had joined his demonstration in front of the Iranian Embassy and he had granted an interview explaining his history. He did not know if the film had been shown on satellite television but it had been shown in the UK. He believed that it may have been shown in Iran 6 months after his flight.

4. The adjudicator dealt with that at page 10 as follows:

My views as to credibility of the appellant’s case have not been altered by the videos which he has produced. The contents have not been produced to me in evidence. I have heard no credible evidence to lead me to suppose that so long after the event the authorities in Iran will pay any regard to them.

5. It is now suggested that the claimant had produced before the adjudicator a still photograph showing one frame from that video. There is no trace whatever of this on the adjudicator’s file, although there is some reference to videos in his handwritten record of proceedings. We have been quite unable to find any other still photograph, and we regard as inconceivable that an adjudicator of Mr Mylne’s experience who was presented with such a piece of evidence would not have made some record of it.

6. If the claimant had wished to challenge the way in which Mr Mylne treated the evidence about the videos, then that is something which very much needed to be done in the grounds of appeal to us. We understand that his solicitors chose to draft those themselves (despite having instructed experienced specialist counsel - not on that occasion Mrs Heller) to appear for the appellant before the adjudicator. If that point had been taken in the grounds of appeal a copy of the video, and any apparently still in the claimant’s hands of any still photograph produced, could have been called for, and arrangements could have been made for the Tribunal to view them. A typed copy of the adjudicator’s record of proceedings could also have been called for.

7. It follows that if we were to deal with this point on its merits, a substantial adjournment would have been required, which is discouraged by r. 40.2 of the 2003 Procedure Rules, unless the appeal cannot otherwise be justly determined. To see whether justice does require the very late amendment of the grounds of appeal which this point would need if it were to be taken at all, we start by looking at r. 20 of the Procedure Rules:

1. A party may vary his grounds of appeal only with the permission of the Tribunal.
2. Where the Tribunal has refused permission to appeal on any ground, it must not grant permission to vary the grounds of appeal to include that ground unless it is satisfied that, because of special circumstances, it would be unjust not to allow the variation.

8. In this case of course, permission was not refused on the basis of the video, or the still from it, because it was never sought on that basis in the first place. We have to ask ourselves: should this claimant be in any stronger position because that was not done? In our view he should not be. No special circumstances have in our view been shown why it would be unjust not to allow that amendment. In our view the interests of justice go the other way: the proper administration of it requires some finality and some order. If this amendment were allowed, it would in effect be open season for claimants to resurrect features of their individual cases which, on the considered judgment of their legal advisers at the adjudicator stage, did not figure at all in their case for permission to appeal. It follows that we refuse the amendment sought. (Different considerations would of course apply to a point which had been taken in the original grounds of appeal, but not pronounced on in the grant of permission).

9. That leaves substantially ground 1, relating to the adjudicator’s claimed misunderstanding of the position of the Basij. The claimant’s case is put in more ingenious terms by Mrs Heller in her skeleton argument, on the basis of what is said to be confusion by the adjudicator between the Basiji Football Team, which we understand to be the adjectival form of the name, and the organisation itself, which is the Basij. That organisation is extremely well known to all adjudicators of any experience, of whom Mr Mylne is one.

10. The point is essentially based on the form of Mr Mylne's decision, which is if anything over-elaborate in its treatment of the case. Instead of relating the appellant’s case once only (usually the version given in oral evidence at the hearing), and noting any deviations from that, which we should regard as the best practice, what Mr Mylne did was to give a full treatment of the appellant’s case at each stage at which it had been presented.

11. Mr Mylne’s section 2 deals with the claimant’s statement of evidence form of 17 November 2000. He summarizes it as follows:

The appellant at this time was a well known football player in Tehran and one of the reasons that he was taken by Spahah-e-Basdaraan another security organisation was that they wanted him to play for a football team called Basij for 2 years which count towards his military service. For 4 years the appellant played in the Basij team although under the law he was only required to do 2 years military service. One night in June or July 1999 the appellant was asked to guard a weapon depot of Basij.

12. That is as far as we need go on that point, because, even from that, it is clear the adjudicator had no reason to suppose that the Basij was no more than a name of a football team. It would indeed be a strange football team that was in possession of their own weapons depot (desirable as that might seem to some, in view of some of the events which have taken place from time to time in western Europe).
13. Going on to section 3, that deals with the appellant’s interview of 20 December 2000. Here the claimant is expressly quoted as saying that “Basij were Islamist militia”. Section 4 deals with the refusal letter, where the Secretary of State is quoted as accepting that “the appellant had been forced to join the Basij football team instead of completing his military service in the usual way”. It is only necessary to refer back to what we have already said about section 2 to show that that did not involve any misunderstanding on the part of the adjudicator.

14. Section 5 deals with the grounds of appeal to the adjudicator, and nothing more turns on that. Section 6 refers to the Basij, and to the claimant saying in oral evidence that the Basij had sworn to kill him if he did not play for their football team. Again, we do not see any misunderstanding in that. Section 7, dealing with the claimant’s, or rather his counsel’s submissions at the hearing, refers to his having been “watched by the Basij” again a term more appropriate to a vigilante organisation than a mere football team. There is a reference in the adjudicator’s unnumbered determination section to “the Basij football team”; but it is clear that the adjudicator had well in mind the appellant’s account, which he rejected about theft of weapons at the Basij depot; and equally clear that he was very well aware that this was far from being just, or even mainly a football team.

15. The final point made turns on the adjudicator’s subsidiary finding at page 10:

Even if there were truth in the appellant’s story, his political opinions have never been in issue, neither real nor imputed, and the worst that could be said against his failure properly to guard the weapons is one of negligence or of ineptitude.

This is said to support the adjudicator’s claimed misunderstanding of the position of the Basij. It was not however part of the adjudicator’s credibility findings. There was no question of this appellant having held political opinions of any conspicuous kind, as they would ordinarily be understood; but only in terms of the extended meaning given to them under the Refuge Convention. Again, we see nothing in that point to suggest that the adjudicator misunderstood the position of the Basij, as (at the very least) a semi-official armed body.

It follows that this appeal is dismissed.

John Freeman

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