R (Iran) & Ors v Secretary of State for the Home Department

Under the former point-of-law-only appellate regime, the Immigration Appeal Tribunal could intervene only for a material error of law. Perversity required an irrational finding or one wholly unsupported by the evidence. Reasons were inadequate only where the tribunal could not understand how a material issue had been resolved.

A relevant country-guidance decision normally had to be followed or distinguished with adequate reasons. Once an error of law was identified, the Tribunal could consider up-to-date evidence and determine the current merits, including country guidance. If no error was established, changed circumstances had to be raised with the Secretary of State. Article 8 proportionality required the adjudicator’s own judgment, including proper weight for immigration control.

Five asylum and immigration appeals were heard together from decisions of the Immigration Appeal Tribunal. The appeals concerned Iran, Afghanistan and Eritrea and arose under the point-of-law-only regime created by the Nationality, Immigration and Asylum Act 2002.

The Court considered the materiality threshold for errors of law, perversity, reasons, country-guidance decisions, mistakes of fact, fresh evidence and changed circumstances. It also considered the IAT’s powers after identifying an error of law, including whether it could assess up-to-date country evidence, and the approach to proportionality under Article 8 of the ECHR.

1. General appellate principles. The IAT could interfere only where an error of law was material to the outcome or fairness of the proceedings. Perversity was a demanding threshold, requiring an irrational or Wednesbury-unreasonable finding, or a material finding wholly unsupported by the evidence. Reasons were sufficient if they identified and explained the matters critical to the decision; an adjudicator need not address every argument. The court applied the guidance in Eagil Trust Co Ltd v Pigott-Brown [1985] 3 All ER 119 and English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605.
2. Country guidance. A relevant country-guidance decision had to be applied unless there was a legally adequate reason not to do so. Changed circumstances, significant new evidence or factual differences could justify departure, but the reasons had to be stated. This reflected the need for consistency and equal treatment in asylum appeals.
3. IAT powers after an error of law. Sections 101 and 102 of the Nationality, Immigration and Asylum Act 2002 required an error of law to be identified before the IAT could exercise its substantive powers, apart from affirming the adjudicator’s decision. Once that gateway was passed, section 102(2) permitted consideration of relevant evidence, including matters arising after the adjudicator’s decision. The IAT could determine the current merits, give up-to-date country guidance or remit the appeal. The contrary obiter observations in Miftari v SSHD [2005] EWCA Civ 481 were not followed.
4. Mistake of fact and fresh evidence. The principles in E and R v Home Secretary [2004] EWCA Civ 49 required a mistake about an existing fact or evidence, an established and objectively verifiable matter, no responsibility on the appellant’s part, and material effect on the reasoning. Conflicting expert or country evidence did not ordinarily satisfy the requirement of an established fact. Where no error of law was shown, changed country evidence had to be put to the Secretary of State.
5. Applications. R (Iran)’s appeal was remitted because the IAT had identified an error but made artificial factual assumptions instead of obtaining clear findings. A (Afghanistan), M and T (Afghanistan), and T (Eritrea) failed because no material error of law was established.

• Court of Appeal (Civil Division): allowed R (Iran)’s appeal and remitted the matter for reconsideration; dismissed the appeals of A (Afghanistan), M (Afghanistan), T (Afghanistan) and T (Eritrea).
• Immigration Appeal Tribunal: determined the five underlying appeals. No citation for those decisions was stated in the judgment.