Birgani v Secretary of State for the Home Department

On an application for permission to appeal in an asylum case, the Court of Appeal may intervene only where an error of law is shown. Challenges to an adjudicator’s credibility findings, the weight given to evidence, or predictions about future risk ordinarily raise issues of fact. Fresh medical evidence will generally be inadmissible before the Immigration Appeal Tribunal where it should and could have been produced before the adjudicator. Difficulties in interpreting an asylum claimant’s account may warrant sympathy and explanation, but do not themselves convert a factual disagreement into an error of law.

An Iranian national claimed asylum on the basis of alleged political persecution and torture. The adjudicator rejected his account. The Immigration Appeal Tribunal refused permission to appeal, holding that medical evidence produced for the appeal should have been available earlier and that the proposed grounds disclosed no arguable error of law.

The applicant sought permission to appeal to the Court of Appeal. He relied principally on the medical report and on political activities in the United Kingdom which, he said, might come to the attention of the Iranian authorities. The central issue was whether either matter disclosed an error of law permitting intervention.

1. The application for permission to appeal was refused. The Court of Appeal could grant permission only if an error of law was shown.
2. The adjudicator’s rejection of the applicant’s account was based on several credibility findings. The absence of medical evidence was only one factor. Whether the account was credible was a matter for the adjudicator and did not raise an issue of law.
3. The Immigration Appeal Tribunal correctly applied the principles in E and R [2004] EWCA Civ 49. Medical evidence which should and could have been made available before the adjudicator was not strictly admissible before the Tribunal. The Tribunal nevertheless considered the report and found that it raised as many questions as it answered, including apparent inconsistencies between the medical history and the applicant’s earlier accounts.
4. The applicant’s explanation that interpretation difficulties caused the discrepancies did not establish an error of law. Nor did the question whether his United Kingdom political activities would come to the attention of the Iranian authorities. Both matters were factual issues.
5. The court indicated that, if relevant matters had not been properly considered concerning the alleged torture, current political activities, or the contemporary position in Iran, the applicant could draw them to the Secretary of State’s attention. No relief was available in this application.

• Adjudicator: On 27 August, the applicant’s asylum account was rejected on credibility grounds.
• Immigration Appeal Tribunal: On 26 November 2004, the Tribunal dismissed the appeal and refused permission to appeal to the Court of Appeal.
• Court of Appeal (Civil Division): Permission to appeal was refused.