IM (Turkey) v Secretary of State for the Home Department

Where an Asylum and Immigration Tribunal has granted permission to appeal, an appellant should not be deprived of that opportunity solely because lawyers failed to lodge the appeal in time. The court may extend time while scrutinising the lawyers’ conduct. A tribunal may find an error of law where an adjudicator’s inference about future conduct rests mainly on personality or demeanour, lacks supporting evidence and is inadequately reasoned. On reconsideration, the tribunal may proceed on the evidence below. Reopening the case to admit further evidence is unusual, and an adjournment is not required merely to supply evidence that could have been given earlier. The appellate court will not interfere with a first-instance reconsideration absent serious grounds.

IM, a Kurdish Alevi Turkish national, appealed against an Asylum and Immigration Tribunal determination following reconsideration of an adjudicator’s decision. The adjudicator had accepted that she had previously been arrested and ill-treated because of involvement with the EKB women’s group and had allowed her asylum and human-rights appeal.

The Tribunal found errors of law in the assessment of objective risk and in the inference that IM would resume campaigning on return. On reconsideration, it found insufficient evidence of risk to EKB members and insufficient evidence of any intention by IM to campaign. The appeal concerned delay, procedural fairness, the Tribunal’s reconsideration powers, and the evidential basis for assessing future conduct.

1. Extension of time. Applying the approach in BR (Iran) [2007] EWCA Civil 198, the Court extended time for filing the appeal. The delay resulted from administrative failures by the solicitors, while the Tribunal had granted permission to appeal. The Court also considered whether disciplinary action was required, but took no further action after the solicitors accepted responsibility and gave appropriate assurances.
2. Burden and evidential basis. The burden remained on IM to establish the material facts relied upon. The absence of an express reference to the EKB in the refusal letter did not relieve her of that burden, particularly where the point had not been conceded.
3. Future conduct. The Tribunal was entitled to find an error of law in the adjudicator’s conclusion that IM would campaign on return. That conclusion rested substantially on perceived personality and demeanour, without evidence from IM of such an intention, evidence of comparable activity during her six years in the United Kingdom, or conduct in Turkey beyond a low level. More detailed reasoning was required to explain why demeanour and personality overcame the absence of objective supporting evidence.
4. Reconsideration and adjournment. Once an error of law had been identified, the Tribunal could reconsider the matter itself as effectively a court of first instance. Reopening the case to admit further evidence was appropriate only in unusual circumstances. There was no unfairness in proceeding without an adjournment or further oral evidence from IM, since she had had ample opportunity to give that evidence before the adjudicator.
5. The Tribunal’s assessment of the evidence concerning risk to EKB members was within its area of judgment. The Court would not interfere with its reconsideration absent serious grounds. The application to extend time was granted, but the appeal was dismissed.

1. Court of Appeal (Civil Division) extended time for the appeal and dismissed the appeal.
2. Asylum and Immigration Tribunal found errors of law in the adjudicator’s assessment and, on reconsideration, found insufficient evidence of objective risk or of IM’s intention to campaign on return.
3. Adjudicator accepted IM’s account of prior arrest and ill-treatment, and allowed the appeal under the Refugee Convention and Article 8 of the European Convention on Human Rights.