Saber (AP) (Appellant) v Secretary of State for the Home Department (Respondent)

Whether removal would breach the United Kingdom’s international obligations is a prospective question. The final decision should therefore use the most up-to-date available evidence, rather than facts which have become merely historical.

When determining the disposal of an asylum appeal, a court may give decisive weight to fundamental changes in the country of origin. A concession that an earlier favourable decision would be treated as final if restored does not remove the court’s responsibility or discretion to select the appropriate disposal.

The appellant, a Kurdish citizen of Iraq and former supporter of the Patriotic Union of Kurdistan, claimed asylum and relied on article 1A(2) of the Geneva Convention on the Status of Refugees and articles 3 and 5 of the European Convention on Human Rights. An adjudicator allowed his appeal, but the Immigration Appeal Tribunal reversed that decision.

The Second Division of the Court of Session, reported at 2003 SLT 1409, held that the tribunal had erred. It nevertheless remitted the case for a hearing de novo because the adjudicator had proceeded partly on an incorrect assumption about removal to Baghdad and subsequent events had fundamentally changed conditions in Iraq.

The issue before the House was whether the Second Division had exercised its discretion wrongly by ordering a new hearing instead of restoring the adjudicator’s decision.

1. Appeal dismissed unanimously. Lord Hope delivered the leading speech. Lord Bingham, Lord Rodger, Baroness Hale and Lord Brown agreed with his reasons.

2. Per Lord Hope, whether removal would contravene the United Kingdom’s international obligations is always a prospective question. The final decision should be based on the most up-to-date evidence available. Historical facts do not provide a sound basis for determining whether an asylum seeker presently requires international protection. Rule 32 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 recognised that principle by permitting new evidence to be admitted and considered on reconsideration.

3. The Second Division was entitled to decline to restore the adjudicator’s decision. That decision rested materially on the incorrect assumption that removal to Iraq would mean removal to Baghdad, despite the ministerial undertaking that Kurds from the Kurdish Autonomous Region would not be returned there. Although the tribunal had wrongly substituted its own findings about conditions in that region, the appellant’s evidence was not supported by the background evidence. The adjudicator’s decision was therefore not so plainly correct that requiring a new hearing was wrong.

4. Per Lord Hope, the respondent’s concession that the adjudicator’s decision would be treated as final if restored did not relieve the court of its responsibility to choose the appropriate disposal. Nor did it remove the court’s discretion to consider, and give appropriate weight to, the fundamental change in Iraqi conditions after the adjudicator’s decision. Those changed circumstances were the most important consideration.

5. Lord Rodger regarded the Second Division’s disposal as plainly right. Baroness Hale added that the appellant had come nowhere close to establishing a basis on which the House should interfere with the lower court’s exercise of discretion. The order for a hearing de novo therefore remained in force.

1. House of Lords: Dismissed the appellant’s appeal and upheld the Second Division’s order for a hearing de novo: [2007] UKHL 57.

2. Second Division of the Court of Session: Held that the Immigration Appeal Tribunal had erred, but declined to restore the adjudicator’s decision and remitted the appeal for a hearing de novo: 2003 SLT 1409.

3. Immigration Appeal Tribunal: Allowed the Secretary of State’s appeal. It held that the adjudicator should have accepted the undertaking that the appellant would not be returned to Baghdad and that the evidence did not establish the claimed risk in the Kurdish Autonomous Region.

4. Adjudicator: Allowed the appellant’s appeal against the refusal of asylum, relying on the risks which he considered would arise upon return to Baghdad or the Kurdish Autonomous Region.