JK (Syria) v Secretary of State for the Home Department

Permission to appeal should be granted where a proposed ground has a real prospect of success. A tribunal assessing an asylum claim must engage with material expert or country evidence about surveillance, identification and risk on return. It cannot dismiss such evidence without evaluation. A challenge to credibility findings may also be arguable where some reasons appear factitious and it is uncertain whether the remaining reasons sustain the conclusion. The Court of Appeal may leave the substantive merits, and any remission, to the full appeal hearing.

The applicant, a Syrian national and Kurd, sought permission to appeal against an Asylum and Immigration Tribunal determination prepared on 2 March 2007. The tribunal had made adverse credibility findings and dealt with a report by Dr Alan George concerning demonstrations in the United Kingdom, Syrian surveillance, possible identification on return and ill-treatment of a failed asylum seeker. The applicant argued that the credibility reasoning was legally erroneous and that the report had not been considered, or had been misunderstood. The Court of Appeal considered the earlier decision in IA (Syria) (2) SA (Syria) v SSHD, [2007] All ER (D) 211. The central question was whether either ground disclosed an arguable error warranting permission to appeal.

1. Disposition. The application for permission to appeal was granted. The court did not finally determine whether the Tribunal’s decision should be allowed or remitted.
2. Expert evidence and risk on return. The second ground had a real prospect of success. In IA (Syria) (2) SA (Syria) v SSHD, [2007] All ER (D) 211, the court had taken the view that a tribunal could not simply dismiss evidence that the Syrian authorities surveilled anti-regime demonstrations in the United Kingdom and that a participant might be identified on return. That evidence, together with further Amnesty International material, required evaluation. It was arguable that the Tribunal had misunderstood or failed to take account of Dr George’s evidence when stating at paragraph 40 that it was not suggested that a film record would be available. If established, the error could warrant allowing the substantive appeal and remitting the case.
3. Credibility findings. Permission was also granted on the first ground. Lord Justice Pill expressed greater caution, noting that some of the Tribunal’s reasons were cogent, including the applicant’s failure to mention matters during interview. Lord Justice Sedley considered that other reasons were arguably factitious, including findings concerning the founder of the applicant’s party, the lack of initial detail about torture, his ability to leave the country within two weeks of being tortured and the absence of overt marks. It was sufficiently doubtful whether the decision could stand after any unsustainable reasons were removed.

Lord Justice Sedley described the Article 8 proportionality analysis as a model, but that observation did not affect the grant of permission on the two grounds.

• Court of Appeal (Civil Division): On 27 November 2007, granted the applicant permission to appeal.
• Asylum and Immigration Tribunal: Determination prepared on 2 March 2007 in AIT No HX/01203/2005. The applicant challenged the adverse credibility findings and the treatment of Dr George’s evidence.