Mahmud, R (on the application of) v Immigration Appeal Tribunal

In an asylum case, an appeal has a real prospect of success where persuasive authority materially supports the claimant’s argument that protection must be provided by an entity capable of exercising internationally recognised State functions. A tribunal must not treat protection by a de facto local authority as sufficient without addressing that legal issue and analysing the authority’s actual competence to protect the individual. The reviewing court should not decide the appeal itself where the tribunal is better placed to assess materially changed country conditions. The appropriate remedy is to quash the tribunal’s refusal of permission and remit the matter for reconsideration.

The claimant, an Iraqi Kurd, challenged the Immigration Appeal Tribunal’s refusal of leave to appeal against an adjudicator’s dismissal of his asylum and human-rights appeal. The adjudicator accepted his account of attacks and kidnapping but considered that the PUK, as the de facto authority in the area, would protect him.

The Tribunal held that the adequacy of PUK protection was a question of fact and that the claimant had no real prospect of success. Before the High Court, subsequent decisions concerning protection by non-State entities and the radically changed circumstances in Iraq were relied upon. The central issue was whether the Tribunal could reasonably have concluded that an appeal had no real prospect of success.

1. Application allowed. The Tribunal’s decision was quashed and the matter was remitted to the Tribunal. The Secretary of State was ordered to pay the claimant’s costs, subject to detailed assessment.
2. The Tribunal had erred in concluding that an appeal would have no real prospect of success. The Court of Appeal’s reasoning in Gardi, expressly adopted by the Court of Session in Saber v Secretary of State for the Home Department, provided substantial support for the argument that the protection contemplated by Article 1A(2) of the Refugee Convention must be protection of the country of nationality, or of an entity capable of granting nationality or bearing responsibility under international law. Those decisions were not binding on the court but were highly persuasive, and the judge was not persuaded that they were plainly wrong.
3. The Tribunal could not avoid that issue by treating the availability of individual protection as determinative. The adjudicator’s reasoning linked the anticipated protection to the PUK’s status as a de facto authority performing the usual functions of government. That required analysis of the PUK’s actual competence to provide protection, particularly in light of the serious attacks accepted by the adjudicator.
4. The High Court should not itself determine the likely outcome of the appeal. The materially changed conditions in Iraq required reconsideration, and the Tribunal was better equipped to assess the up-to-date evidence. Nor should the claimant be deprived of direct access to an independent tribunal merely because a fresh claim might otherwise be made to the Secretary of State.
5. Permission to appeal was granted because the issue raised by Gardi was of wider significance and required authoritative resolution.

1. Adjudicator: Mrs Lloyd dismissed the claimant’s asylum and human-rights appeal after accepting his account but finding that the PUK could protect him.
2. Immigration Appeal Tribunal: On 5 April 2002, the Tribunal refused leave to appeal, holding that the adequacy of PUK protection was a fact-sensitive issue and that the appeal had no real prospect of success.
3. High Court (Administrative Court): The claim for judicial review was allowed. The Tribunal’s decision was quashed and the matter remitted.