The decision


JG (Al – Hagh – Fresh evidence at hearing) Iran [2004] UKIAT 00317

Date of Hearing: 9 September 2004
Date Signed: 27 September 2004
Date Determination Notified:      

Given orally in court


Mr J Barnes (Vice President)
Mr C P Mather (Vice President)
Mr N Kumar JP






For the Appellant: Mr Waheed of Counsel, instructed by Southerns, Solicitors
For the Respondent: Mr A Sheikh, Home Office Presenting Officer

1. The Appellant is a citizen of Iran born on 23 August 1965 who arrived in the United Kingdom on 31 July 2000 and claimed asylum on the same date. He submitted a Self Evidence Form and was subsequently interviewed on behalf of the Secretary of State who refused his application for the reasons contained in a letter dated 22 July 2003. On 28 July 2003 the Secretary of State issued directions for his removal from the United Kingdom to Iran as an illegal entrant after refusal of his asylum application. He appealed against that decision on both asylum and human rights grounds and his appeal was heard on 14 October 2003 by Mr G A Irvine, an Adjudicator.

2. Save in one respect, the Adjudicator found that the Appellant was credible in his account. He summarised his account at paragraph 11 of his Determination in the following terms:

“(i) In 1999 he was expelled from university when it was discovered that he used to follow the Al-Hagh religion and had been accused of insulting the Islamic religion during a discussion at university. After he was expelled the security forces raided his house in Iran to arrest him but he was not there. When he found out about this he went into hiding with a nomadic tribe and heard that his father was arrested and detained for two days. He feared for his life and on 30 June 2000 he left Iran.

(ii) There is a big difference between the religion of Al-Hagh and Islam. The holy book of Al-Hagh is called the Pardivar or Saranjam and they believe in the five prophets and also believe that everything evolves from the soul and the soul will reappear again after death. They believe that God is a creator of everything.

(iii) The followers of Al-Hagh are a minority in Iran since the majority of people are Muslims who follow Islam. Some people call followers of the Al-Hagh, Ali-Allahi and therefore followers of the religion may be referred to as being part of either religion. At the age of 16 each individual has to confirm that they believe in Al-Hagh. If they do not want to be part of the religion they are free to practise any religion. Some believers mark Friday night as a holy night but others mark Saturday night as a holy night. Numerous obstacles have arisen as a result of their religious beliefs and when applying for positions within the government in Iran in the application form they would have to state their religion and to avoid conflict and problems they would lie and state that they were Muslims in order to obtain a job. If it was discovered that they had lied and actually followed Al-Hagh they would be immediately sacked from their job.

(iv) After his brother was executed in Iran he grew to hate Islam and at university there was a Muslim priest who always talked about the twelfth Imam believing that he is still alive and could be anywhere in the world and when this discussion was taking place the Appellant disagreed with those views and asked the priest whether this twelfth prophet could be the Appellant. There was an uproar amongst the people and this was regarded as an insult to Islam and he was thrown out of the university for this comment. After he was thrown out of university the head of the university informed the Iranian authority of his outspoken view and this is what led to his problems as the authorities wanted to arrest him and question him about his behaviour. As he realised that there was a possibility that they would kill him and that his house had been visited by members of an intelligence service he realised his life was in danger and fled Iran”.

3. The Adjudicator considered the evidence in relation to the religion of Al-Hagh at some length at paragraph 16 of his Determination but, having read the documents produced by the Appellant’s then representative, he commented that very little was revealed about that religious sect or other sects associated with it and virtually nothing was said about members of the religions being persecuted by reason of such membership. He noted that CIPU made no reference at all to Al-Hagh but that it did contain paragraphs about religion at paragraphs 5.53 to 5.46 of the version before him, which confirmed that religious freedom was provided for in the 1979 Constitution and in particular that at paragraph 5.44, Article 13 of the Constitution recognises the Zoroastrian, Jewish and Christian minorities specifically described in the Constitution as “protected religious minorities”. Members of those faiths were free to perform their religious rights and ceremonies and to act according to their own canon in matters of personal affairs and religious education. Paragraph 5.46, he noted, confirmed that religious minorities suffer discrimination in the legal system and at paragraph 5.47 it showed that the government was suspicious of any proselytising of Muslims by non-Muslims and could be harsh in its response, in particular against Baha’is and Evangelical Christians. He then continued to deal with the evidence before him in the following terms:

“17. It is not contended that the Appellant has himself been persecuted for his religious beliefs or the alleged insult to Islam when he spoke to a Muslim priest. This resulted in him being expelled from university several months later at the end of 1998 and in June 1999 the Etelaat went to his home but he was not there and they detained his father for two days.

18. I find the Appellant to have given a consistent account and I find that what he has said apart from the detention of his father to be credible. It is credible that in order to get into university he did not disclose his true religion but he said he was Muslim and that for five years he was able to keep his religion a secret but that in one discussion he made a statement which was treated as an insult to Islam. He dropped out of university for a term of four months which was then followed by the three months summer holiday and when he returned to university he was told that he was being expelled. He went to work on his father’s farm and some six months later the Etelaat came to see him but he joined a nomadic tribe and eventually left Iran.

19. Although I find the majority of his account to be credible, I do not find there are substantial grounds for believing that his involvement in Al-Hagh would have caused him to be persecuted. It is a personal religion and he had not been proselytising. If he had made himself available to the Etelaat there was not a real risk that this would have resulted in persecution or torture. He had not in his earlier Statement of Evidence Form said that his father was detained. If his father had been detained it is expected that he would have mentioned it in the Statement of Evidence Form. He also said that his father was released after two days. If I had accepted that his father had been detained his father would not have been released so soon if the authorities were holding his father in the place of the Appellant. The incident which caused him to be expelled from university had taken place over a year earlier and if he had been of interest to the authorities because of what he had said they would have sought him out much sooner.

20. The objective evidence such as it is shows that religious minorities are tolerated although they may suffer discrimination. Provided there is no proselytising of Muslims they will not come to harm. The fact that his brother was executed in 1981 is explained by the fact that he was specifically writing religious books on Al-Hagh and distributing them to other people. His brother had been warned about this but continued his activities. The Appellant was not in anything like that sort of situation”.

4. For those reasons the Adjudicator came to the view that the Appellant had not discharged the burden of proof upon him of having a well-founded fear of persecution for a Refugee Convention reason or of breach of his protected rights under Article 3 of the European Convention, and he dismissed his appeal.

5. The appellant then sought permission to appeal to the Tribunal. In his grounds of appeal he did not in any way seek to challenge the findings which the Adjudicator had made on the basis of the evidence before him but asserted that the appeal was dismissed because the Adjudicator had found there was insufficient evidence on the treatment of Al-Hagh believers in Iran to justify a finding of persecution. This had led the Appellant to make considerable efforts to obtain evidence as to the position of Al-Hagh followers and it was his belief that Al-Hagh were affected by restrictive and persecutory attitudes compared to some non-Islamic religions in Iran.

6. Permission to appeal was granted on the basis that those grounds were arguable and it was noted that the appellant sought to rely on expert evidence that was not available before the Adjudicator and he would need first to comply with rule 21 of the Immigration and Asylum Appeals (Procedure) Rules 2003.

7. Notice of this hearing was sent to the parties on 6 May 2004. Shortly before on 30 April 2004, in response to the grant of permission the Appellant’s solicitors had submitted a formal application under rule 21 enclosing a copy of a report made by Dr Rebwar Fatah which they sought leave to introduce at the hearing of the appeal together with other information giving background detail about the Al-Hagh religion. That was the position when this appeal opened before us today. We asked Mr Waheed what on the basis of the grounds of appeal was the material error of law on the part of the Adjudicator upon which he placed reliance, but he accepted that there were difficulties in this respect because of the lack of evidence before the Adjudicator as to the Al-Hagh religion and what occurred to its followers. He sought leave to amend the grounds of appeal by adding a challenge to the sustainability of the Adjudicator’s findings in the following terms taken from his written skeleton argument.

“The conclusion that surrender to the Iranian security policy would not entail a risk of persecution is contrary to the background evidence and is unreasonable (see Hathaways’s first and second categories of rights as set out in Horvath 1999 INLR 7 at 25). Alternatively the combined circumstances of the illegal exit, an interest in return from abroad, Kurdish ethnicity, minority religious belief, continuing security police attention, widespread legal impropriety and heresy”.

8. Those extracts from the skeleton included reference to various passages in the evidence which had been before the Adjudicator to which Mr Waheed directed our attention. He could not otherwise, however, give any reason why this application, which fundamentally sought to change the basis on which permission to appeal had been granted, had been made at such a late stage. For the Respondent Mr Sheikh objected to the application being allowed by reason partly of its lateness and partly because in his submission it did not in any event show any real prospect of success as on the evidence before the Adjudicator his findings were sustainable and disclosed no material error of law. In particular, the Adjudicator had given clear reasons as to why he did not consider that there was a real risk from the Etelaat and those reasons were sustainable in his submission.

9. We gave due consideration to the application by Mr Waheed in which he had relied on background evidence pointing to the arbitrary nature of detention and risk of persecution in Iran as it is recorded in various documents in the public domain provided to the Adjudicator. His application was made under the provisions of rule 20(1) of the Procedure Rules which provides that a party may vary his grounds of appeal only with the permission of the Tribunal. We are mindful of the strict time limits for making an application for permission to appeal which are imposed by rule 16 of the Procedure Rules and the requirement in rule 17(3) that the grounds of appeal submitted within that time frame must:

“(a) identify the alleged errors of law in the Adjudicator’s Determination and

(b) explain why such errors made a material difference to the decision.

10. The degree to which Mr Waheed has sought without any prior notice to raise issues which are fundamentally distinct and different from the basis on which permission was granted is in our view a matter of importance in our consideration of his application to amend. It was clearly a matter which would take Mr Sheikh by surprise because he could not conceivably have prepared his appeal on that basis and we are mindful that there has been ample time for such an application to have been submitted earlier. There is in our view really no excuse for such matters being raised for the first time only at the hearing.

11. So far as the question of whether there would be any real prospect of success in relation to those amended grounds is concerned, we have come to the view that on the evidence before him it could not be said that the Adjudicator had erred in law in reaching the decision which he did. He made clear at paragraph 7 of his Determination that he had recorded the oral evidence and submissions from both representatives in his Record of Proceedings and that he had also taken into account all the documentary evidence which had been produced to him, which he then proceeded to identify. He had relied particularly in his approach on the fact that there had been no earlier approach by the Etelaat to the Appellant who had apparently indicated that they wished him to report to them, so that the delay was an important element in his reasoning. He had also noted at paragraph 20 of his Determination that the objective evidence showed that religious minorities were tolerated although they might suffer some discrimination and that they would not come to harm absent proselytising of Muslims. It was not suggested this had occurred on the part of the Appellant at any point in time. It does not seem to us that even had we granted this late application it would arguably have led to a finding that there had been any material error of law on the part of the Adjudicator on the basis of the totality of the evidence which was before him. That there may be a possibility of arbitrary arrest and persecutory treatment in detention by the Iranian authorities does not seem to us to form a basis for saying that it is a real risk in all cases and the Adjudicator clearly explains why in this particular case he did not consider it to be so. That was a decision which was properly open to him on the totality of the evidence before him, which included the generality of objective evidence commonly relied on, namely the CIPU Report for April 2003 filed on behalf of the Secretary of State and an objective current bundle from the appellant, running to 49 pages and including the United Stated State Department Report for 2002 and reports from Amnesty International and Human Rights Watch .

12. For the above reasons we refused the application to extend the grounds of appeal. Mr Waheed very properly acknowledged that this then placed him in considerable difficulties, particularly having regard to the recent decision of the Court of Appeal in CA v Secretary of State for the Home Department [2004] EWCA Civ 1165. In that case the Tribunal had sought to reconsider a decision made by an Adjudicator to which the provisions of the Nationality, Immigration and Asylum Act 2002 applied. By virtue of section 101 of that Act the jurisdiction of the Tribunal is confined to cases where there has been a material error of law on the part of the Adjudicator but, absent such material error of law, the Tribunal is not entitled to revisit the merits of the case either at the date of the hearing before the Adjudicator or at the date of the hearing before them. The matter is put clearly at paragraph 30 of the Judgment of Laws LJ in the following terms:

“… It may be that it is perfectly possible to conclude that the Adjudicator was wrong on the merits. Such a conclusion might have justified overturning his decision under the earlier wider appellate jurisdiction (see this court’s judgment in Subesh) but the jurisdiction under Section 101 forbids in effect the IAT deciding the merits itself unless at least it first concludes that the Adjudicator’s decision cannot stand because it is marred by error of law”.

The more limited jurisdiction of the Tribunal applies not only to those decisions to remove made by the Secretary of State on or after 1 April 2003 but also to earlier removal decisions made by the Secretary of State where the appeal against them is heard by an Adjudicator on or after 9 June 2003, the date provided by Schedule 2, paragraphs 4A and 4B of the Nationality, Immigration and Asylum Act 2002 (Commencement No. 4) Order 2003 (SI 2003, No. 754) dealing with transitional provisions relating to the 2002 Act.

13. For the reasons which we have explained, the grounds of appeal as they stand before us disclose no error of law on the part of the Adjudicator. They rely entirely on the effect of later evidence which could have been produced before the Adjudicator had the Appellant so desired. The fact is that he did not seek any expert opinion on the position of those who are followers of the Al-Hagh religion in Iran and the Adjudicator quite rightly records that there was nothing in the usual public reports which were produced to him which gave him any assistance as to the position of such followers. There was certainly nothing which suggested that they were generally at risk of persecution. It may be that the evidence of the expert which was sought to be introduced gives far greater information as to the situation of followers of Al-Hagh in Iran than appears either in the CIPU Reports or any other documents in the public domain. Given the absence of any error of law it seems to us that we are precluded from considering that evidence. But had we considered that we should do so we find that there would be a further difficulty in admitting it, applying the ratio in E & R [2003] EWCA Civ 49, because taking into account what is said at paragraph 66 of the judgment, there must be no responsibility for the failure to produce the evidence on the part of the appellant or his advisers, and the new evidence must be established in the sense that it is uncontentious and objectively verifiable. Although we did not hear Mr Sheikh at length on these issues, it was apparent from his submissions in relation to the application for leave to appeal that he did not concede that the report sought to be introduced fell into that latter category. Indeed, given the absence of any similar evidence readily available it would almost certainly have been necessary, had we been able to consider this new evidence, to have adjourned the hearing so that the expert could himself attend in order to give oral evidence and to be cross-examined.

14. Nevertheless we think it is appropriate to note that there is an absence of evidence in the CIPU Report and other documents in the public domain. If the Appellant seeks to make a fresh application for asylum based on this new evidence then it is a matter which the Secretary of State would no doubt wish very carefully to consider given the absence otherwise of evidence as to the situation of the Al-Hagh religion and its followers in Iran.

15. For the reasons which we have set out above, however, it follows that there is no material error of law in the Adjudicator’s determination in our judgment and that, in consequence, we are not able to consider the matter further. This appeal is accordingly dismissed.