Mohamed Shihab Mazrae v Secretary of State for the Home Department

A renewed application for permission to appeal should ordinarily remain within the issues for which permission was granted. A challenge to an Immigration Appeal Tribunal’s refusal to vary grounds is ordinarily discretionary and does not raise a point of law merely because the applicant disputes the assessment, absent perversity.

That procedural view does not end the matter where important evidence may have been overlooked and could create a risk of serious injustice. In that situation, the respondent should have an opportunity to address the issue before permission is decided. An adjournment on notice is appropriate where the court is sufficiently troubled by the possible significance of the evidence.

The applicant, a 30-year-old Iranian national, challenged the Secretary of State’s decision that he had not established an entitlement to be treated as an asylum seeker. The Adjudicator rejected his account of political activity, detention and torture, and upheld the Secretary of State’s decision.

The Immigration Appeal Tribunal dismissed his appeal on 30 December 2003. Permission had been granted only on issues concerning his Arab ethnicity and illegal departure from Iran. On renewal before the Court of Appeal, the applicant relied on a medical report which had not been expressly drawn to the Tribunal’s attention and which potentially supported his account of serious torture. The central issue was whether that evidence raised a risk of serious injustice sufficient to justify reopening the matter.

Disposition. The Court of Appeal did not grant permission or determine the substantive appeal. The renewed application was adjourned on notice to the Secretary of State, with the appeal to follow immediately if permission was granted.

1. Scope of the renewed application. Permission had been granted on a limited basis. The wider challenge to the Adjudicator’s treatment of the expert evidence had not been properly revived before the Immigration Appeal Tribunal. An application to vary the grounds was possible, subject to rule 20 and the requirement to show special circumstances making refusal unjust. Ward LJ’s preliminary view was that the Tribunal’s refusal involved an exercise of discretion and disclosed no point of law, no perversity having been alleged.
2. Potentially overlooked medical evidence. The applicant relied on Dr Browell’s report, which recorded injuries including a fractured leg and removal of a testicle, and expressed the view that those matters could be consistent with the account of beatings. Although the report did not verify the cause of the injuries, it was potentially significant to the adverse credibility finding. Ward LJ was troubled by the possibility that important evidence had not been properly considered.
3. Serious injustice. The only viable route for the argument was the approach stated in E and R v Secretary of State for the Home Department [2004] EWCA Civ 49: reopening would normally require a risk of serious injustice arising from something going wrong at the hearing or important evidence being overlooked.
4. Further procedure. Ward LJ was not prepared to reject the argument, but was not yet persuaded that it succeeded. The appropriate course was therefore to give the Secretary of State an opportunity to respond, list the matter before three Lord Justices for half a day, and direct that the appeal follow if permission was granted. Mummery LJ agreed.

• Court of Appeal (Civil Division): The renewed application for permission to appeal was adjourned on notice. The appeal was directed to follow if permission was granted.
• Immigration Appeal Tribunal: Dismissed the applicant’s appeal on 30 December 2003.
• Adjudicator: In May 2003, upheld the Secretary of State’s decision that the applicant had not established an entitlement to be treated as an asylum seeker.