Secretary of State for the Home Department v. Mirfattahi and Others

SECRETARY OF STATE FOR THE HOME DEPARTMENT v MIRFATTAHI and others

Immigration Appeal Tribunal

[1992] Imm AR 517

Hearing Date: 16 June 1992

16 June 1992

Index Terms:

Adjudicator -- seized of appeal against Secretary of State's refusal to grant first respondent political asylum -- first respondent never interviewed by Home Office -- adjudicator failed to determine issue of political asylum -- allowed appeal to the extent that he remitted case to Secretary of State for first respondent to be interviewed and for consideration of a grant of indefinite leave -- whether adjudicator's approach correct. Immigration Act 1971 s 19.

Held:

The Respondents before the Tribunal were citizens of Iran. The first respondent had applied for political asylum: the second, third and fourth respondents were his dependants, his wife and children. The Secretary of State refused the application for asylum, and in consequence the applications of all four respondents for variation of leave to remain in the United Kingdom. On appeal, the adjudicator found that the first respondent had never been interviewed by the Home Office. He did not determine the issue of political asylum: he allowed the appeal to the extent that he remitted the case to the Secretary of State for the first appellant before him to be interviewed and for consideration to be given to granting indefinite leave to remain. The Secretary of State appealed to the Tribunal. Held 1. The adjudicator had erred in law: he had not determined the issue before him. 2. The appeal was still outstanding before the adjudicator insofar as it was an appeal against a refusal to vary leave on the basis of a claim to asylum. 3. The case would be remitted to the adjudicator for him to determine that issue.

Cases referred to in the Judgment:

No cases are referred to in the determination.

Counsel:

A Gammons for the appellant; The first respondent in person PANEL: Proffessor DC Jackson (Vice President), JM Simons Esq, N Kumar Esq JP

Judgment One:

THE TRIBUNAL: The Secretary of State appeals against the determination of an adjudicator (Mr EJT Housden) allowing the appeals of the respondents against the refusal of asylum to the extent of remitting the matter back to the Secretary of State for consideration of the grant of indefinite leave. The adjudicator heard oral evidence from Dr Mirfattahi, Mr Healey and Dr AF Jolton. The adjudicator found no reason to disbelieve the evidence of the three witnesses, and accepted that Dr Mirfattahi would have been discriminated against had he returned to Iran at the date of decision. However, said the adjudicator, he had considerable doubts whether any action taken against him would be on any of the grounds listed in the Convention relating to the status of refugees. As to this, the adjudicator said: "I do not think that it could be reasonably argued that any persecution which Dr Mirfattahi might suffer on return to Iran would be for reasons of religion -- he is a Muslim, like the majority of his fellow countrymen -- race or nationality. As to membership of a particular social group, can highly placed medical men in the Ministry of Health be so categorised? I did consider this category in Otchere [1988] Imm AR 21 -- I allowed that appeal; the Immigration Appeal Tribunal upheld my decision -- and I am well aware of the difficulties involved in so doing. As to political opinions, it seems to me that Dr Mirfattahi has none in the sense of party politics. Perhaps a case could be made that "political" is all-embracing but would Dr Mirfattahi's difficulties resulting from membership of various Ministry committees and the politico-religious stranglehold on academic life in Iran fall into that or any other category or combination of categories? In the absence of any clear precedents -- none was cited and I have found none -- I fear that whatever I might say about this subject would be controversial and give rise to further litigation at a higher level. I think that there is a better -- and less expensive way of dealing with Dr Mirfattahi's problem". The adjudicator noted that Dr Mirfattahi had never been interviewed, and thought the preferable way of dealing with the appeal was to remit the matter to the Secretary of State for such an interview and for "careful consideration to be given to the possibility of granting him indefinite leave to remain in the United Kingdom as a medical practitioner". The adjudicator concluded his determination: "As I have allowed the first Appellant's appeal it follows logically that I must allow the appeals of the other Appellants also. They are his dependants and their immigration status is dependent on his. I allow their appeals". The Tribunal's view (which we expressed to Dr Mirfattahi and to Mr Gammons) is that this appeal remains outstanding before the adjudicator. The adjudicator may well be right in his comments as to the way in which Dr Mirfattahi's case could sensibly be dealt with, but that, with respect, was not the issue before him. The issue before the adjudicator was whether Dr Mirfattahi had a claim to asylum. That issue, it seems, was never determined by the adjudicator. Dr Mirfattahi told us that he had further evidence which he would wish to submit in furtherance of his claim. He was advised by Mr Gammons to submit it not only in support of his case before the appellate authority, but directly to the Home Office so that the Home Office could give further consideration to it. We endorse that suggestion. The Secretary of State's appeal to the Tribunal is allowed insofar as we declare that Dr Mirfattahi's appeal to the adjudicator remains outstanding before him. The matter is remitted to Mr Housden for the asylum issued to be determined following the opportunity to be given to each party to adduce further evidence and to make further representations.

DISPOSITION:

AppeaL allowed to the extent it was remitted to the adjudicator

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