Mazrae v Secretary Of State For Home Department

In asylum appeals, an appellate court reviews the decision properly before it and does not restart the underlying determination as though deciding the claim at first instance. An appellant should present the case in full, so far as possible, at the first opportunity. Later evidence or argument may be admitted only within the exceptional approach recognised in E and R [2004] EWCA Civ 49. A tribunal may refuse to reopen a ground for which permission to appeal was not granted. Criticism of an adjudicator’s reasoning does not itself establish an arguable error of law in the tribunal’s refusal to entertain that ground.

The appellant, an Iranian asylum seeker, appealed against the Immigration Appeal Tribunal’s dismissal of his challenge to an adjudicator’s refusal of his asylum claim. The adjudicator rejected his account as lacking credibility and did not accept that objective and expert evidence supported it. Permission to appeal to the Tribunal was granted on the risk-on-return ground, but not on the complaint that the adjudicator had wrongly approached the evidence relevant to credibility.

The Tribunal refused to reopen the credibility ground and dismissed the appeal on the risk ground. A renewed application for permission to appeal was then made to the Court of Appeal. The central issue was whether the Tribunal had been required to reconsider the excluded credibility issue, including in light of later medical evidence.

1. Application refused. The Court of Appeal held that the Tribunal was entitled to treat the complaint about the adjudicator’s approach to credibility as a ground for which permission had not been granted. No application had been made to revive that ground, and the Tribunal was entitled to refuse to reopen it.
2. An appeal on a question of law reviews the particular Tribunal decision under challenge. It does not give the Court of Appeal power to restart the asylum procedure or determine the claim as if it were the Secretary of State considering it for the first time. The case should be presented in full, so far as possible, to the Secretary of State and then to the adjudicator at the earliest opportunity.
3. The Court recognised the exceptional possibility of later material affecting an appeal, applying the approach in E and R [2004] EWCA Civ 49 and the Ladd v Marshall principles. The Court could not, however, use that route to reopen the whole procedure in this case.
4. Lord Justice Kennedy considered that the adjudicator’s reasoning could have been better structured and had attracted valid criticism, but concluded that the Tribunal was entitled to act as it did and that there was no reason to grant permission. Lord Justice Sedley expressed substantial doubts about the cogency of the adjudicator’s credibility reasoning, including the failure to evaluate the medical and expert evidence together and broad assumptions about expected physical or psychological symptoms, detention, and monitoring. Lord Justice Neuberger agreed with both the dismissal and those concerns.

The formal order was: application refused.

1. Court of Appeal (Civil Division) — The renewed application for permission to appeal was refused.
2. Immigration Appeal Tribunal — The Tribunal dismissed the appeal and refused leave to appeal. It declined to reopen the credibility ground because permission had not been granted on it.
3. Adjudicator — The adjudicator dismissed the asylum appeal after rejecting the appellant’s credibility and refusing to accept that he faced the claimed risk on return.