Asylum seeker wins round in deportation fight

Court quashes refusal of leave to appeal on adjudicator's flawed approach to credibility

News, 16 August 2006

Asylum seeker Morteza Fafschi, who claims he fled Iran after an adulterous affair with a policeman's wife left him facing the death penalty, yesterday won a stage in his fight to avoid deportation from the UK.

In a petition for judicial review, Lord Hodge at the Court of Session overturned an Immigration Appeal Tribunal decision refusing leave to appeal against an adjudicator's decision to uphold a deportation order.

Mr Fafschi, 44, who is living in Bearsden, Glasgow, came to Britain from Turkey in 2000 under a false passport. The Home Secretary issued instructions for him to return to Iran after his application for asylum was rejected.

Mr Fafschi claimed to have been caught having an affair with a woman in Tehran who happened to be married to a police sergeant. He was subjected to inhumane treatment by the police and told he would be charged with adultery, which carries a possible death penalty in Iran. He had escaped while being transferred to court and fled to Turkey, and from there, fearing he would be returned to Iran, he left for Britain.

In his judgment Lord Hodge said Mr Fafschi had challenged the adjudicator's assessment of Mr Fafschi's credibility as flawed on several grounds. Not all of these were correct: for example the adjudicator was entitled to have regard to Mr Fafshci's credibility on matters not directly related to his application in assessing his credibility on crucial facts.

However two of the criticisms of the adjudicator were justified. She had not given adequate reasons for rejecting as incredible Mr Fafschi's account of his time in Turkey; and she was wrong to criticise his case on the basis that there was no certainty he would have been convicted of adultery, or executed if he was. Although Mr Fafschi has used different expressions to describe the probability of this happening, he could not be expected to know this and should not be criticised for it.

As it was accepted that the adjudicator's assessment of Mr Fafschi's credibility was cumulative, the errors had to be regarded as material and the tribunal's decision to refuse leave to appeal could not stand.

Lord Hodge's decision can be read at http://www.scotcourts.gov.uk/opinions/2006CSOH125.html.