Saber v Secretary of State for the Home Department

The House of Lords dismissed the appellant's appeal. The court emphasised that determinations whether removal would breach the United Kingdom's international obligations must be prospective and based on the most up-to-date evidence available. It was proper for the Court of Session to refuse to reinstate the adjudicator's 2001 decision because that decision had been materially affected by subsequent events in Iraq. The court held that the respondent's concession about granting indefinite leave to remain if the adjudicator's decision were restored did not deprive the court of its discretion to order a rehearing on current facts.

The decision engages the Refugee Convention (article 1A(2)), the European Convention on Human Rights (articles 3 and 5) and the statutory appeals framework (sections 65 and 69 of the Immigration and Asylum Act 1999). The court recognised the relevance of Asylum and Immigration Tribunal (Procedure) Rules 2005 (rule 32) permitting admission of fresh evidence on reconsideration.

The appellant, a Kurdish national from Iraq, claimed asylum in the United Kingdom in July 2000. He alleged persecution for involvement with the Patriotic Union of Kurdistan and relied on article 1A(2) of the Refugee Convention and articles 3 and 5 of the European Convention on Human Rights. His claim was refused by the Secretary of State on 13 February 2001. An adjudicator allowed his appeal on 29 July 2001, but the Secretary of State successfully appealed to the Immigration Appeal Tribunal in June 2002 which substituted its own findings and allowed the appeal. The appellant then appealed to the Court of Session (Second Division) which, in 2003 (2003 SLT 1409), found in his favour on two issues and remitted the case for a hearing de novo by a new adjudicator. The primary live issue before the House of Lords was whether the Court of Session was right to remit rather than restore the adjudicator's decision.

Nature of the claim: application for asylum and related Convention protection; relief sought was to prevent removal to Iraq and to secure refugee status or other protection.

Issues framed:

• whether the Immigration Appeal Tribunal was entitled to substitute its own findings for those of the adjudicator;
• whether the tribunal was right to conclude the appellant would receive protection if returned to the Kurdish Autonomous Region;
• if the Court of Session found for the appellant, what disposal was appropriate (restore adjudicator's decision, make a finding of refugee status, or remit for rehearing).

Reasoning and outcome: the House of Lords held that the Court of Session had rightly concluded the tribunal was wrong to substitute findings and that the adjudicator's decision had been based on assumptions inconsistent with a ministerial undertaking and, crucially, had been overtaken by later events in Iraq (notably the 2003 removal of Saddam Hussein). The court emphasised that the question whether removal would breach international obligations is prospective and must be decided on up-to-date facts; historical facts alone are not a sound basis. The respondent's concession about the practical consequences of restoring the adjudicator's decision did not remove the court's discretion to order a rehearing. The appeal was dismissed.

Appeal dismissed. The Court of Session was right to remit the matter for a rehearing rather than to restore the adjudicator's decision because subsequent events in Iraq had fundamentally altered the facts relevant to whether removal would breach the United Kingdom's international obligations; the respondent's concession about leaving arrangements did not deprive the court of its discretion.

Initial refusal by Secretary of State (13 February 2001); adjudicator allowed the appellant's appeal (29 July 2001); Immigration Appeal Tribunal allowed the Secretary of State's appeal (June 2002); Court of Session (Second Division) allowed the appellant's appeal and remitted the case for rehearing (2003 SLT 1409); appeal to House of Lords dismissed ([2007] UKHL 57).