MH (Iran) v Secretary of State for the Home Department

At the permission stage, general adverse credibility findings do not prevent an appeal from being arguable. Permission may be granted where a tribunal may have mischaracterised equivocal evidence and used the resulting finding as a decisive basis for rejecting the claimant’s central asylum case. The court was not deciding the merits or finally determining that an error of law had occurred; it held only that the proposed grounds were fit for consideration by the full court.

An Iranian national appealed against the Asylum and Immigration Tribunal’s order of 31 May 2007, which dismissed her asylum appeal on reconsideration. The initial adjudication had been treated as flawed because it failed accurately to address her evidence about two books she had written and the likely reaction of the Iranian authorities. On reconsideration, the tribunal accepted that she had written and published the first book but rejected her evidence about its sales, the refusal of a second edition and the alleged banning of the second book. The central issue was whether the tribunal’s treatment of that evidence disclosed an arguable error of law.

1. Disposition. Lord Justice Wilson gave the leading judgment and Lord Justice Toulson agreed. The application for permission to appeal was allowed. The substantive appeal was not determined.
2. Permission threshold. The applicant faced substantial adverse credibility findings, and several parts of her account had been found false. Nevertheless, permission was appropriate if the proposed grounds disclosed an arguable error of law in the tribunal’s reasoning.
3. Arguable treatment of evidence. The reconsideration had been directed particularly to the applicant’s evidence about the contents of her books, the Iranian state’s reaction to them and the consequences of return. The tribunal accepted authorship and publication but made a decisive finding that the first book had sold poorly. It then relied on that finding to reject the alleged refusal of a second edition and the alleged banning or non-publication of the second book. The tribunal appeared to conflate the alleged refusal by the publishers with the alleged refusal by the Iranian state to license a second edition.
4. The tribunal also appeared to treat an uncertain internet sales-ranking number as equivalent to the applicant’s evidence that the book was languishing in the rankings. Given that the finding of poor sales substantially undermined the entire book-related asylum case, the challenge to the tribunal’s treatment of the evidence was sufficiently arguable to proceed.
5. Final order. Application allowed.

• Court of Appeal (Civil Division): On 22 November 2007, the application for permission to appeal was allowed. See [2007] EWCA Civ 1287. The substantive appeal was not decided.
• Asylum and Immigration Tribunal: On reconsideration, by order dated 31 May 2007, the applicant’s appeal against refusal of asylum was dismissed.
• Initial adjudication: The original appeal was also dismissed, but the adjudication was later treated as flawed. In December 2006 a senior immigration judge directed a full reconsideration of the applicant’s appeal.