Civi v Secretary of State for the Home Department

When country guidance changes between an adjudicator’s decision and an Immigration Appeal Tribunal hearing, the tribunal is not necessarily confined to the earlier guidance. Later guidance may be relevant where it gives a different perspective on primary facts already found. Evidence that a claimant was coerced or asked to become an informer may be material to assessing potential suspicion and risk on return. An appeal is arguable where the tribunal’s self-imposed constraint causes it to disregard that factor. A related internal-relocation issue may also be considered with the appeal once permission is granted. Permission was granted; the court did not determine the asylum claim or finally resolve the correct approach to changed guidance.

The appellant, a Turkish citizen, claimed asylum after describing detention, torture and coercion by the Turkish authorities, including an instruction to become an informer. An adjudicator accepted his credibility but dismissed his asylum and Human Rights Convention claims, relying on the then-current guidance in Polat and finding no real risk on return or evidence against relocation to Istanbul.

The Immigration Appeal Tribunal initially refused permission to appeal. Following a consent order in the High Court and the promulgation of later guidance in A v Secretary of State for the Home Department [2003] UKIAT 00034, the matter was remitted. The Tribunal nevertheless upheld the adjudicator’s reasoning and treated A as irrelevant. Sedley LJ refused permission on the papers. The central issues were whether the Tribunal had wrongly excluded the later guidance and whether the internal-relocation issue should be reopened.

1. Permission granted. The Court of Appeal held that it was at least realistically arguable that the Immigration Appeal Tribunal had wrongly treated itself as confined to the guidance in force when the adjudicator decided the case. That approach appeared to have caused the Tribunal to disregard a material factor in the appellant’s evidence.
2. Informer evidence. The Tribunal had observed that the Polat factors did not include an appellant having been asked to become an informer. Whether or not that was correct under Polat, the approach was not correct under A v Secretary of State for the Home Department [2003] UKIAT 00034. Paragraph 46 of A identified whether an appellant had become, or had been asked to become, an informer as material to potential suspicion by the authorities. The Tribunal therefore needed to consider the evidence that the appellant had been coerced to become an informer.
3. Scope of Subesh. Subesh [2004] EWCA Civ 56 concerned the general approach to appeals on questions of fact and followed the earlier approach in Indrakumar [2003] EWCA Civ 1677. Its reference to an earlier authoritative IAT ruling was not intended to exclude consideration of more recent country guidance, at least where that guidance provided a different perspective on primary facts already found. This was a provisional observation made in granting permission, not a final determination of the issue.
4. Internal relocation. The Court was also troubled by the treatment of relocation to Istanbul. Although the issue had not been clearly highlighted before the Tribunal, the Court would not exclude it once permission was granted and directed that the case be considered as a whole. The order was: application granted; time estimate four hours; constitution of three judges, one of whom might be a High Court judge.

1. Court of Appeal (Civil Division): permission to appeal granted on the renewed application.
2. Court of Appeal (Civil Division), on the papers: Sedley LJ refused permission to appeal.
3. Immigration Appeal Tribunal: on 22 September 2004, upheld the adjudicator’s reasoning and treated the later guidance in A v Secretary of State for the Home Department [2003] UKIAT 00034 as irrelevant.
4. High Court: in November 2003, by consent, quashed the Tribunal’s refusal of permission and remitted the matter for reconsideration.
5. Immigration Appeal Tribunal and adjudicator: the initial application for permission was refused, and the adjudicator had dismissed the asylum and Human Rights Convention claims.