Polat v Secretary of State for the Home Department

Where an immigration appellate tribunal has power, at the permission stage, to set aside a determination and direct a rehearing, an exceptional failure to consider material new expert country evidence may be an error of law. Where the claimant’s individual factual findings can stand but the prospective-risk assessment requires current country material, the specialist tribunal is the appropriate forum for reconsideration. In asylum cases, fresh material affecting risk engages anxious scrutiny, although the precise scope of a statutory appeal confined to points of law remained unresolved.

The appellant, a Turkish national of Kurdish origin and an Alevi, claimed asylum and protection under the Refugee and Human Rights Conventions. An adjudicator dismissed his appeal, finding that his limited assistance to the PKK and his evasion of military service did not create a real risk of persecution, torture or other prohibited ill-treatment on return to Turkey.

The Immigration Appeal Tribunal dismissed a further appeal. It held that a Turkish Kurd could not succeed merely because the authorities would have a record of involvement in, or sympathy for, a separatist organisation. Subsequently available country material and the Tribunal’s decision in Hayser called that approach into question.

On appeal, the central issues were whether fresh material could be considered and whether the Tribunal had erred in refusing permission without considering an expert report and the possibility of ordering a rehearing.

May LJ, with whom Keene and Aldous LJJ agreed, allowed the appeal.

1. Rule 27(5) of the Immigration and Asylum Appeals (Procedure) Rules 2000 empowered the Tribunal, when considering permission to appeal, to set aside the determination and direct a rehearing instead of granting leave. In the exceptional circumstances, the Tribunal’s failure to consider Mr McDowall’s report for that purpose was an error of law.
2. The parties accepted that the appellant’s prospective risk required reconsideration in light of later country information and the modified guidance in Hayser [2002] UK IAT 0783. The original factual findings concerning the appellant were not under challenge. The specialist Tribunal, rather than the Court of Appeal, was the proper forum to assess those facts against the current objective material.
3. May LJ also stated that an asylum case involving fundamental human rights and anxious scrutiny should have regard to material of this kind. Earlier Court of Appeal decisions had admitted fresh evidence where justice plainly required it. He reserved, however, the possible distinction between judicial review and a statutory appeal confined to points of law, and did not base the decision on that wider issue.

The Immigration Appeal Tribunal’s decision was quashed and the matter remitted to that Tribunal for reconsideration. There was no order for costs, save for detailed assessment under the appellant’s Community Legal Services Funding certificate.

• Court of Appeal (Civil Division) — allowed the appeal in [2003] EWCA Civ 1059, quashed the Immigration Appeal Tribunal’s decision and remitted the matter to that Tribunal.
• Immigration Appeal Tribunal — dismissed the appeal by a determination notified on 20 September 2002, and later refused permission to appeal to the Court of Appeal.
• Adjudicator — dismissed the asylum and human-rights appeals by a determination promulgated on 23 May 2002.