SF v Secretary of State for the Home Department

In an asylum appeal, a tribunal must take relevant country guidance into account, even where the omission results from an advocate’s failure to cite it. The guidance must, however, bear a real factual relation to the case. Guidance concerning a returnee who had recently undertaken overt, state-hostile activity did not assist where the tribunal found no comparable political activity, surveillance or state interest.

Credibility findings may be tested by logic and expected conduct, although the possible irrationality of an oppressive regime must be recognised. A subsidiary weakness in reasoning does not invalidate a determination supported by independent, legitimate reasons. Fresh evidence will not justify appellate intervention where it concerns a peripheral matter and cannot undermine the central credibility assessment.

SF, an Iranian citizen, sought asylum in the United Kingdom on the basis of a well-founded fear of persecution in Iran by reason of political opinion. Following an earlier unsuccessful appeal and a finding of material error in the adjudicator’s determination, the Asylum and Immigration Tribunal reheard the appeal de novo and dismissed it on 31 May 2006. The proceedings were recorded as [AIT No. HX/11019/2004].

SF sought permission to appeal, alleging that the Tribunal had failed to consider relevant country guidance and had reached its factual conclusions by legally flawed reasoning. The central issues were whether the guidance was relevant to the facts found and whether the credibility assessment or proposed fresh evidence disclosed an error of law.

1. Permission. The application for permission to appeal was refused. Lord Justice Wall and Lord Justice Pill agreed with Lord Justice Wilson.
2. Country guidance. The Court accepted the principle identified by reference to DK Serbia [2006] EWCA Civ 1747: failure to refer to relevant country guidance may constitute an error of law, even where the omission is attributable to the applicant’s advocate. The principle applies only where the guidance is relevant to the facts found.
3. Relevance of FK. The guidance in FK (Persecution – Refugee – Political Writer) Iran [2002] UKIAT 01328 concerned a person who had recently undertaken overt, seditious activities, attracted state suspicion and surveillance, and then left Iran unlawfully. The Tribunal’s findings rejected any comparable political profile in the years before SF’s departure. It had effectively asked whether he would have a profile of interest to the authorities and was entitled to answer that question negatively.
4. Credibility reasoning. The possibility that an oppressive regime may act irrationally is a factor to bear in mind, as recognised in the discussion of Suleyman (16242) 11 February 1998. It does not prevent a tribunal from using logic and expected conduct to assess credibility. The absence of any accusation linking SF’s detention to MEK, his relatively short detention and his release without continuing control adequately supported the Tribunal’s conclusion.
5. The Tribunal’s reasoning concerning alleged low-level political activity had further independent foundations, including the absence of a credible reason for its alleged resumption and SF’s insufficient knowledge of the leaflet contents. Any weakness in the surveillance reasoning therefore did not undermine the determination.
6. Fresh evidence. Even in an asylum appeal, ordinary principles governing fresh evidence and the distinction between law and fact apply. The additional material concerning student activity in Tehran in April 2000 did not establish the alleged uprising and could not dislodge the Tribunal’s central finding that SF’s account of political involvement during the preceding years lacked credibility.

1. Court of Appeal (Civil Division). On 25 January 2007, the Court refused permission to appeal against the Tribunal’s determination.
2. Asylum and Immigration Tribunal. Following a de novo rehearing, the Tribunal dismissed SF’s appeal on 31 May 2006. The proceedings were recorded as [AIT No. HX/11019/2004].
3. Adjudicator. An earlier appeal had been unsuccessful. On reconsideration, the Tribunal found a material error of law in the adjudicator’s determination and directed a further reconsideration.