Tayebi v Secretary of State for the Home Department

An appellate court should not decide a new legal issue where the lower fact-finding tribunals have made no relevant findings. The issue should ordinarily be remitted for factual assessment. A claim that exclusion from a profession constitutes persecution requires evidence that the restriction has sufficiently profound effects to cross the relevant threshold under the Geneva Convention or Article 3 of the European Convention on Human Rights. The evidence should address both the claimant’s ability to earn a living and his genuine intentions or desires on return.

An Iranian national claimed asylum on the basis that his advocacy of freedom of expression had led to detention, ill-treatment and restrictions on his teaching. The adjudicator accepted his evidence but concluded that, following his release, the prohibition on teaching removed the circumstances which had attracted official attention. The Immigration Appeal Tribunal dismissed his appeal on the same basis. Before the Court of Appeal, the appellant argued for the first time that the teaching ban itself constituted persecution. The respondent submitted that the issue required factual findings which had not been made below.

1. Appeal remitted. The Court of Appeal accepted that the issue relied on by the appellant had not previously been considered by the Secretary of State, the adjudicator or the Immigration Appeal Tribunal. No findings had been made on the facts necessary to determine it. The Court therefore made no order on the appeal and remitted the matter to the tribunal for reconsideration.
2. To succeed on the proposed argument, the appellant would have to establish that the prohibition on teaching had effects sufficiently profound to amount to persecution under the Geneva Convention or to ill-treatment contrary to Article 3 of the European Convention on Human Rights. That involved a significant evidential burden. The evidence needed to address the effect of the prohibition on his ability to earn a living and his true intentions or desires if returned to Iran.
3. The appeal was remitted unanimously. The order recorded no order on the appeal and Legal Services Commission funding for the appellant’s costs. On the subsequent wasted-costs application, the court indicated that no final order could be made without giving the solicitors an opportunity to make representations and, if desired, to be separately represented.

1. Court of Appeal (Civil Division): Remitted the appeal to the tribunal for reconsideration and made no order on the appeal.
2. Immigration Appeal Tribunal: On 12 July 2002, dismissed the appellant’s appeal against the adjudicator’s decision.
3. Adjudicator: On 10 January 2002, dismissed the asylum appeal after accepting the appellant’s evidence but finding that the teaching ban removed the basis for continuing official interest.