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Interesting fresh claim case

Interesting fresh claim case

Personal favourite of mine

I’ve no time for a proper post at the moment but as a filler take a look at a few choice quotes from an interesting fresh claim judicial review concerning an Iranian convert to Christianity and her son, the case of R (on the application of SA (Iran)) v Secretary of State for the Home Department [2012] EWHC 2575 (Admin). The fresh claim was certified as ‘clearly unfounded’ meaning there was no right of appeal. That certificate was successfully challenged by the excellent David Jones of Garden Court Chambers, resulting in quite a fun judgment.

As ever for a fresh claim, the starting point was the first immigration judge’s findings of fact. The original judge had rejected the claimant’s entire account:

The judge, although stating that “I do not pretend to find this an easy case” (paragraph 15(a)) rejected the claim in very robust terms… He disbelieved the Claimant’s account.Despite his professed difficulty in resolving the issues, he elected to do so in colourful, not to say on occasion exclamatory, tones. He disbelieved her account of her husband’s conduct, disbelieved her account that he was a member of the Basij, and rejected her account of how she had come to the UK. He also disbelieved her account that she had converted to Christianity, and did not accept that she would be in danger on her return to Iran. It is a decision where he formed a strongly adverse view of her credibility.

New evidence was submitted, though, including considerable psychiatric and pyschological evidence from and about the claimant’s son. The evidence was rejected out of hand by the UK Border Agency, a stance strongly criticised by the judge in the judicial review proceedings:

The Home Secretary has formed the judgement that the symptoms exhibited by the son are explicable by his disappointment at the result [of the appeal]. That may turn out to be the explanation, but no-one could fairly argue at this stage that there could be no other explanation, and certainly could not do so when the expert opinions advanced are not to that effect. The Home Secretary simply had no evidential basis upon which she could safely and conclusively exclude the effect of earlier events on the son’s exhibited symptoms and presentation. Expert psychiatric and psychological evidence cannot simply be set aside in the manner adopted by the Home Secretary, least of all when it is apparently supported by evidence of physical examination which appears to support his account of injury.

Next, the judge turned to the submission by Counsel for the Secretary of State, Mr Mandalia, to the effect that corroborating witness evidence was worthless:

Mr Mandalia argued that because the Claimant had given evidence about her husband’s conduct and membership of the Basij, the evidence of her son added nothing, and could not make a difference. That approach by Mr Mandalia (which echoes that of the Home Secretary) is one which a moment’s reflection will show is unarguable, if advanced as some rule of general application. In cases where credibility is in issue, the fact that a witness’ account is corroborated by that of another witness can add to its credibility. Were it otherwise, prosecutors in criminal cases, or parties in personal injury actions, would not seek to call as many eye (or other) witnesses of events as can give relevant evidence, nor would Defendants in criminal cases advancing a defence of alibi be keen to call any supporting witnesses if they can do so. I find it concerning that so straightforward and long standing a concept as one witness giving support to another’s credibility should be overlooked by the Home Secretary.

That last sentence rings particularly true. As far as the UK Border Agency is concerned witness evidence is worthless, even if from reputable third parties.

Lastly for our current purposes the judge has some wise words on assessing the ‘credibility’ of a conversion:

What appears to have impressed the immigration judge, and then the Home Secretary, is that the Claimant’s conversion to Christianity was not regarded by him as genuine, and had been manufactured to assist her asylum claim. It is a dangerous thing for anyone, and perhaps especially a judge, to peer into what some call a man or woman’s soul to assess whether a professed faith is genuinely held, and especially not when it was and is agreed that she was and is a frequent participant in church services. It is a type of judicial exercise very popular some centuries ago in some fora, but rather rarely exercised today. I am also uneasy when a judge, even with the knowledge one gains judicially in a city as diverse as Manchester, is bold enough to seek to reach firm conclusions about a professed conversion, made by a woman raised in another culture, from the version of Islam practised therein, to an evangelical church in Bolton within one strand of Christianity. I am at a loss to understand how that is to be tested by anything other than considering whether she is an active participant in the new church. But I accept that such judicial boldness as this judge showed does not necessarily undermine a decision in law if he does so, and his decision was not successfully appealed. But that is not the only point. There must be a real risk that if she has professed herself to be a Christian, and conducted herself as one, that profession, whether true or not, may be taken in Iran as evidence of apostasy. On the basis of the Home Secretary’s now stated position, that amounts to a potentially different circumstance from that addressed by the Immigration Judge.

So, the judgment includes some fairly robust comments on the ‘bold’ approach of the original immigration judge to the question of the claimant’s truthfulness, on the UK Border Agency approach to expert evidence and to corroborating witness evidence and on the wisdom of peering into the souls of others. Quite a fun read.

Free Movement
The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.

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