Case No: C5/2011/1659
Neutral Citation Number: [2011] EWCA Civ 1557
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
(SENIOR IMMIGRATION JUDGE C.N. LANE

Royal Courts of Justice
Strand, London, WC2A 2LL

Thursday, 10 November 2011

Before:

LORD JUSTICE LAWS

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MG (IRAN)

Appellant	
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SECRETARY OF STATE FOR THE
HOME DEPARTMENT

Respondent	

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(DAR Transcript of 
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

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Mr John Nicholson (instructed by Messrs Parker Rhodes Hickmotts) appeared on behalf of the Appellant.

The Respondent did not appear and was not represented.
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Judgment

Lord Justice Laws: 
	
1.	This is a renewed application for permission to appeal against a decision of the Upper Tribunal (SIJ Lane) dated 10 March 2011, by which he dismissed the applicant’s appeal against the refusal on 21 April 2009 to grant him asylum.  Permission to appeal to this court was refused on consideration of the papers by Stanley Burnton LJ on 4 August 2011.  The applicant is a national of Iran born on 19 February 1983.  He arrived in the United Kingdom on 9 February 2009 and claimed asylum.  The essence of his claim was his adulterous relationship with a married woman in Iran.  He claimed to fear persecution if he were returned by the authorities and/or by a man called Saghafi, a businessman with whom he had quarrelled.  

2.	The applicant’s appeal against the Secretary of State’s decision was first heard and determined on 28 June 2009 by IJ Howard.  He allowed the appeal, making it quite clear that he accepted the applicant’s factual account.  However reconsideration was ordered by SIJ Nichols on 22 July 2009.  On 1 December 2009, SIJ Taylor set aside IJ Howard’s determination and directed as follows:

“The finding that the appellant has been involved in a relationship with a married woman is preserved.  Further findings need to be made, namely whether the relationship had been discovered in the manner claimed by the Appellant, and if so whether there were any consequences for the Appellant before he left Iran, and if so whether on return he would face a real risk of prosecution [is the word in the transcript] either for adultery or for the offence of being in an illegal relationship, and if so whether any likely punishment would potentially breach Article 3 of the ECHR.”

3.	The reconsideration hearing took place before DIJ Dearden at Bradford on 31 March 2010.  He dismissed the appeal on 15 April 2010, but by a consent order of this court made on 6 September 2010 the matter was remitted to the Upper Tribunal for a fresh decision.  Apparently DIJ Dearden had failed to preserve the finding that the applicant “had been involved in a relationship with a married woman”.  I note that in the decision now sought to be challenged SIJ Lane made it plain that he had preserved that finding (see paragraph 2).  

4.	SIJ Lane proceeded to set out the applicant’s case.  He claimed (paragraph 6) that the man Saghafi had: 

“... accessed data on his [that is to say, the applicant’s] mobile phone and discovered that the appellant was in a relationship with Atefah".  

5.	The applicant had left the phone behind when he had been thrown out of his own office by Saghafi.  The applicant had said (paragraph 8) that Atefah’s phone number was not saved under her name on the directory of his phone; there was just a number.  Shortly after the applicant’s argument with Saghafi, and on the same day, his home was raided by plain clothes’ officers, so his sister had told him; he was somewhere else at the time (paragraph 9).  

6.	So the essence of the case being made was that Saghafi, with whom the applicant had just had a serious quarrel, had then and there found out by means of the telephone that there was a relationship between the applicant and the woman, Atefah.  As a result of that events were put in train that led to the applicant’s home being raided, and on the applicant’s case may lead to further consequences that will violate his rights if he is returned.

7.	SIJ Lane did not believe that Saghafi or anyone else had used the applicant’s phone to access information concerning his relationship with Atefah, nor that his home had been raided by the Iranian authorities (see paragraph 14).  The judge gave detailed reasons for so concluding.  He said in the critical paragraph, to which Mr Nicholson has drawn my attention, that he did not think it likely that Saghafi would have recognised Atefah’s number on the phone with nothing to identify it as such in the directory.  Nor was it explained why, in any event, Saghafi or the applicant’s father, who on the applicant’s account berated the applicant on the phone, assumed that he was having an affair with Atefah.  The judge thought (paragraph 16) that the letter from the applicant’s aunt, which was relied on, had probably been concocted for the appeal; and he was sceptical (paragraph 17) at the apparent speed with which the relevant events happened on the applicant’s account.  He found (paragraph 18) that the relationship with Atefah had not come to the attention of his own family or of Saghafi.

8.	The case very largely, or entirely, turned on what the judge made of the contention that Saghafi had somehow or another got to know about this adulterous relationship by means of the mobile phone left behind in the office.  In paragraph 15, as I have indicated, the judge puts it on the basis that there was really no ground on which it could reasonably be held that Saghafi had recognised the number; the number was not on the directory.  However it had been submitted to the judge that one explanation, and a perfectly probable explanation, was that Saghafi had dialled numbers that had been recently called on the telephone, and they would have included Atefah’s number, and everything followed from that.  That may or may not be speculative; but it is right to say, as I understand it, that the applicant has always been consistent in his account.  He did not pretend to know for himself how it was that Saghafi had got to Atefah through the telephone; he put forward a possibility that many might think a reasonable one.  

9.	It seems to me that given the way it is in fact put in paragraph 15 of the determination, the judge has not reasoned out a response that in truth confronts the case that was put to him.  Again and again in these cases, we have arguments that really seek to do no more than turn points of fact into points of law; that is what Stanley Burnton LJ said happened in this case, when he refused leave, and at first blush it seemed to me with respect that that was entirely right.  However as it is well-known we are enjoined to apply an anxious scrutiny to these cases, and although I am very far distant from saying that the judge was in any sense bound to accept any part of the applicant’s case, other than the fact of the adulterous relationship, it does seem to me arguable that as a matter of his duty to give proper reasons, he should have confronted the case as it was put to him on the critical point.  

10.	For that reason and that reason only I will grant permission to appeal.  I do not think there is anything in the rest of the grounds.  Permission therefore granted only on the point as to the telephone.  I am required to indicate a time estimate; if Mr Nicholson agrees, I would have thought that one and-a-half hours would be sufficient.  The point is a single and short one.  The court is to be of three judges, but one may be a High Court Judge, because sometimes the case may come  on that way.

Order:  Application granted.