NM (Iraq) v Secretary of State for the Home Department

In a two-stage asylum reconsideration, whether the original tribunal made a material error of law must ordinarily be determined finally at the first stage. The second-stage tribunal should respect that decision, subject to exceptional circumstances; inadequate first-stage reasons should be expanded rather than the issue reopened.

An internal contradiction in an adjudicator’s credibility reasoning may amount to an error of law. It will not necessarily make the determination materially erroneous where an independent, reasoned conclusion on objective country evidence, relocation and sufficiency of protection supports dismissal. The appeal was dismissed.

The appellant, an Iraqi national from Kirkuk, challenged the refusal of asylum and the setting of removal directions. An adjudicator dismissed his appeal on 30 July 2004. Permission to appeal was granted, and following the statutory transition the Asylum and Immigration Tribunal conducted a first-stage reconsideration and directed a second-stage reconsideration. At the second stage it revisited whether the adjudicator had made an error of law, found none, and dismissed the appeal on 4 September 2006.

Before the Court of Appeal, the appellant challenged that procedural course and the adjudicator’s reasoning. By a late respondent’s notice, the Secretary of State argued that the adjudicator’s decision was not vitiated by any material error. The central issues were whether the AIT could reopen the error-of-law question and whether any defect in the credibility reasoning was displaced by sustainable alternative findings on relocation and protection.

Laws LJ gave the judgment of the court, with Scott Baker and Wilson LJJ agreeing.

1. The late respondent’s notice was admitted. Although it could have been filed sooner, the point raised went to whether the original adjudicator’s decision had been vitiated by an error of law. It was in the public interest to uphold a legally correct decision, and the appellant was not materially prejudiced.
2. Under section 103A of the Nationality, Immigration and Asylum Act 2002 and paragraph 31(2) of the Asylum and Immigration Tribunal (Procedure) Rules 2005, the existence of a material error of law must ordinarily be determined conclusively at the first stage. At the second stage the parties should not reopen that issue, save in exceptional circumstances. If the first-stage reasons are too exiguous for incorporation into the final determination, they should be expanded. A mistake in the process may be addressed on appeal to the Court of Appeal. The AIT should therefore not have revisited the error-of-law issue.
3. The adjudicator’s credibility reasoning contained an internal contradiction. The adjudicator rejected the appellant’s account of detention because his father’s alleged Ba’ath party position made it implausible, but also rejected the father’s alleged membership. Rejecting the premise on which the stated reason depended amounted to an error of law.
4. That defect did not make the determination materially erroneous overall. Even assuming the appellant’s account to be true, the adjudicator’s alternative reasoning on the changed situation in Iraq, available protection and relocation was sustainable. The evaluation of objective country material was reasoned, and the conclusion that the appellant could safely and reasonably relocate within the Kurdish areas or elsewhere in Iraq disclosed no error of law. The later country-guidance decision in SM and Others (Kurds - Protection - Relocation) Iraq [2005] UKIAT 00111 was noted as reaching similar conclusions, although its details were unnecessary to the decision.
5. The appeal was dismissed. A detailed assessment of the appellant’s Community Legal Services Funding certificate was ordered.

• Court of Appeal (Civil Division): On appeal from the AIT, the court held that the AIT should not have reopened the error-of-law issue but dismissed the appeal because the adjudicator’s alternative reasoning was sustainable: [2007] EWCA Civ 359.
• Asylum and Immigration Tribunal: At the second-stage reconsideration on 4 September 2006, the AIT revisited the error-of-law issue, found no material error and dismissed the appeal.
• Asylum and Immigration Tribunal: At the first-stage reconsideration on 30 March 2006, the AIT concluded that the appeal should proceed to a second-stage reconsideration on all issues.
• Adjudicator: Mr Appleyard dismissed the appellant’s appeal on 30 July 2004.
• Secretary of State: On 24 April 2004, asylum was refused and removal directions were set.