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

An immigration tribunal hearing appeals on points of law must identify a material legal error before reconsidering the merits. Permission to appeal alone does not permit factual review. Perversity requires irrationality, Wednesbury unreasonableness or a material finding wholly unsupported by evidence. Reasons must explain the resolution of critical issues, rather than every argument.

Unfairness arising from a factual mistake can constitute legal error where the mistaken fact is established, objectively verifiable and material, and the appellant or advisers were not responsible. Disputed expert assessments of country conditions do not satisfy that requirement. Once the legal error gateway is passed, the tribunal may determine the appeal, admit current evidence or remit it. Further investigation of personal facts will normally favour remittal. Without legal error, claims based on changed circumstances must be addressed to the Secretary of State.

Five asylum-seekers appealed against decisions of the Immigration Appeal Tribunal concerning removal decisions made by the Secretary of State for the Home Department. The appeals arose under the Nationality, Immigration and Asylum Act 2002, which restricted appeals from adjudicators to points of law.

R, an Iranian national, alleged persecution connected with his father's dispute with a local Ayatollah. The tribunal identified an unresolved part of his claim but dismissed his appeal after making findings on an artificial evidential basis. A, an Afghan national living with adult family members in the United Kingdom, challenged the tribunal's reversal of an adjudicator's decision allowing his Article 8 appeal.

M and T, Afghan nationals formerly associated with Hisb-e-Islami, relied on later expert evidence concerning risks on return. T, an Eritrean national, relied on a previously unconsidered UNHCR report and subsequent country guidance concerning perceived draft evaders. Her proceedings included a consent order quashing an earlier tribunal decision and further tribunal consideration.

The common issues concerned the identification of material legal error, unfairness arising from factual mistakes, the use of fresh country evidence and the tribunal's powers after finding an error of law.

1. R's appeal was allowed and remitted to the Asylum and Immigration Tribunal for reconsideration of the unresolved asylum issue. The other four appeals were dismissed. Brooke LJ delivered the judgment of the court.

2. The tribunal could interfere only after identifying an error of law material to the outcome or fairness of the proceedings. Permission to appeal did not authorise a general review of findings of fact. The appeal grounds ordinarily defined the issues. An obvious point of Convention jurisprudence favourable to an applicant could nevertheless justify intervention although it had not been raised.

3. Perversity was a demanding standard. It included irrationality, Wednesbury unreasonableness and material findings wholly unsupported by evidence. Reasons had to identify critical issues and explain their resolution sufficiently to reveal the adjudicator's reasoning. They need not address every argument or peripheral matter.

4. The adjudicator had to exercise an independent judgment on Article 8 proportionality, following R (Razgar) v SSHD and Huang v SSHD. A properly directed assessment could be disturbed only for legal error. In A's case, the adjudicator had failed to consider adult-family-life jurisprudence and the weight of immigration control. The tribunal therefore had jurisdiction to determine the question afresh. Its decision disclosed no legal error.

5. Under E and R v Home Secretary, unfairness arising from factual mistake ordinarily required an existing fact or available evidence that was uncontentious and objectively verifiable, absence of responsibility for the mistake on the appellant's side, and a material contribution to the reasoning. These requirements were not a precise code. Conflicting expert assessments of Afghan conditions and evidence about risks to returning Eritreans did not establish such mistakes. Reasonable diligence in obtaining fresh evidence should reflect representatives' limited resources, but admissibility could not supply the missing legal error.

6. After identifying an error of law rendering the decision unsustainable, the tribunal could exercise its statutory remedial powers. Further investigation of personal facts normally favoured remittal. R's unresolved evidence required that course, free from artificial presumptions about credibility.

7. The court also concluded that section 102(2) permitted current evidence when deciding relief after the legal error gateway, including for country guidance. The contrary obiter observations in Miftari v SSHD should not be followed. Applicable country guidance should be followed unless legally adequate reasons justified departure. Without legal error, changed circumstances required further representations to the Secretary of State under rule 353 of the Immigration Rules. The court indicated that future permission applications from immigration tribunals would receive a more restrained supervisory approach.

• Court of Appeal (Civil Division): In [2005] EWCA Civ 982 , allowed R's appeal and remitted the unresolved issue to the Asylum and Immigration Tribunal. Dismissed the other four appeals.
• Immigration Appeal Tribunal: Dismissed R's appeal after identifying an adjudicator's legal error but attempting to determine the unresolved issue itself. Allowed the Secretary of State's appeal against A's successful Article 8 claim. Dismissed M's and T's Afghan appeals and ultimately refused T's Eritrean appeal.
• High Court: In T's Eritrean proceedings, quashed an earlier tribunal decision by consent, leading to further tribunal consideration. No citation was supplied.
• Adjudicators: Dismissed the asylum claims. A's appeal was allowed on Article 8 grounds; the other relevant claims were dismissed.