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

On an appeal limited to questions of law, the Immigration Appeal Tribunal may intervene where an adjudicator’s conclusion is materially inconsistent with the adjudicator’s own findings or reasons. This applies even where the decision involves assessing future risk, intentions and credibility. An adjudicator must explain how the facts found establish the conclusion reached. Where the adjudicator accepts that past conduct caused no persecution or official interest, but predicts that a return to the same conduct will create a real risk, the reasoning must explain the difference. The Tribunal may identify such inconsistency as perverse without making its own findings of fact.

The claimant, an Iranian Christian, sought judicial review of the Immigration Appeal Tribunal’s decision allowing the Home Secretary’s appeal from an adjudicator’s decision. The adjudicator had allowed the claimant’s appeal on asylum and human-rights grounds, finding that he would face a real risk of persecution if returned to Iran after resuming his Christian activities.

The Tribunal concluded that this finding was perverse because it was inconsistent with the adjudicator’s findings that the claimant was not wanted by the Iranian authorities and had not previously been persecuted as a result of those activities. The central issue was whether the Tribunal had lawfully intervened on a question of law.

1. The application was dismissed. The Immigration Appeal Tribunal had been entitled to conclude that the adjudicator’s decision was perverse.
2. An appeal to the Tribunal being confined to questions of law does not prevent intervention where an adjudicator’s reasons are contradictory or lack an adequate evidential basis. Perversity and inadequate reasons may overlap where the conclusion cannot be reconciled with findings made elsewhere in the determination.
3. The adjudicator had found that the claimant was not wanted by the Iranian authorities, would not be arrested for apostasy, and had not previously faced persecution because of his Christian activities. The adjudicator then found that, on return, the claimant would resume substantially the same activities and thereby face a real risk of persecution. The determination did not explain why that conduct would produce a different result on return.
4. The Tribunal had not substituted its own findings of fact. It had identified an inconsistency between the adjudicator’s findings and conclusion. That was a lawful basis for intervention, notwithstanding that the assessment concerned the claimant’s evidence, character and likely future conduct.
5. The claimant was to have a hearing before a fresh adjudicator. Permission to appeal was refused.

• Immigration Appeal Tribunal: allowed the Home Secretary’s appeal from the adjudicator, holding that the adjudicator’s finding of a risk of persecution was perverse.
• High Court (Administrative Court): dismissed the application for judicial review and agreed that the Tribunal had been entitled to intervene.