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

In an asylum appeal, the tribunal must relate the claimant’s particular activities to the objective country evidence and explain how those activities create a real risk of persecution. General membership of a former ruling party, ethnic or regional identity, or past public prominence is insufficient without evidence connecting the individual circumstances to the feared harm. A material error going to the heart of the risk assessment may justify a rehearing de novo; a discrete error should ordinarily lead to a rehearing confined to that issue. An alleged factual misunderstanding is an error of law only where the stringent conditions identified in E v Secretary of State for the Home Department are satisfied.

The appellant, an Iraqi Sunni Arab from Tikrit and former Ba’ath party recruiter, claimed asylum on the basis that he would be associated with Saddam Hussein and targeted by Shi’a opponents. He relied on his former activities, his past prominence as a national handball player, his family’s deaths and damage to his car.

An adjudicator allowed his asylum and human rights appeal. On the Secretary of State’s appeal, the first reconsideration tribunal identified errors concerning the connection between his activities and the objective evidence, and internal relocation, and ordered a rehearing de novo. On the second reconsideration, the tribunal dismissed the claims. The Court of Appeal considered whether either reconsideration decision contained an error of law, whether a de novo rehearing was permissible, and whether the risk findings were adequately reasoned.

1. Appeal dismissed. The first and second reconsideration decisions disclosed no material error of law.
2. The first tribunal was entitled to hold that the adjudicator had failed to explain, by reference to the objective material, how the appellant’s particular activities created a risk of persecution. The evidence concerned persons who had committed, or were perceived to have committed, abuses and did not show that reporting fellow students who refused to join the party, many years earlier, would make the appellant a target. Mere connection with the Ba’ath party was insufficient.
3. The proper scope of a second-stage reconsideration is a matter of discretion, not jurisdiction. A reconsideration should ordinarily proceed on the original findings and conclusions, except to the extent infected by an error of law, new evidence or exceptional circumstances. Here, the error went to the heart of the risk assessment, and the adjudicator had expressed reservations about the appellant’s credibility. A complete rehearing was therefore reasonably open to the tribunal.
4. Lord Justice Wall added that, where the only defect is discrete, the rehearing should ordinarily be confined to that issue. That observation was not necessary to decide this appeal. The relocation issue did not arise, and the court declined to give further obiter guidance on it.
5. The second tribunal was entitled to assess the case as presented on the rehearing. The appellant’s emphasis had shifted from reporting refuseniks to being a successful recruiter, a Sunni from Tikrit and a former well-known sportsman. The tribunal could find that his activities did not involve putting others at risk and that he had not demonstrated a well-founded fear of persecution.
6. The challenges to the findings about Tikrit, his changed appearance and the alleged interpretation error failed. The alleged factual mistake was controversial, had not been raised when the evidence was given, and had not been shown to have materially affected the decision.

• Court of Appeal (Civil Division): [2007] EWCA Civ 585 — appeal against both reconsideration decisions dismissed.
• Asylum and Immigration Tribunal, second-stage reconsideration: 29 June 2006 — asylum and human rights appeals dismissed.
• Asylum and Immigration Tribunal, first-stage reconsideration: 20 April 2006 — errors of law identified and appeals directed to be heard de novo.
• Adjudicator, Mr Turkington: decision promulgated 30 July 2004 — appeal allowed on asylum and human rights grounds.