FM (Iran) v Secretary of State for the Home Department

In an asylum appeal, the Court of Appeal may intervene where a tribunal’s credibility findings rest on inconsistencies which the evidence does not fairly sustain. A claimant should not be discredited for failing to repeat information previously given to legal representatives when the claimant was not asked about it and the omission resulted from the representatives’ failure to pass it on. Apparent inconsistencies must be assessed fairly and in context. Treating an explained or insubstantial discrepancy as an unexplained contradiction may render the decision unsustainable. Appellate intervention on factual issues remains unusual, and factual challenges should not be dressed up as errors of law.

The appellant, an Iranian citizen of Kurdish ethnicity, claimed asylum after alleging that the Iranian authorities had detained and mistreated him because of his brothers’ involvement with the KDPI. The Secretary of State refused the claim on 29 June 2007.

An initial appeal was dismissed. Following reconsideration proceedings, the Asylum and Immigration Tribunal found an error of law in the first decision and directed a second-stage reconsideration. Immigration Judge Harmston dismissed the appellant’s appeals on asylum, human rights and humanitarian protection grounds on 19 February 2008, finding that his account was concocted.

The appeal concerned whether the adverse credibility findings, particularly those based on the uncle’s telephone call and alleged inconsistencies about the timing of events, the sister’s marriage and the sale of property, were legally sustainable. The court also considered whether permission to appeal had been limited to the telephone-call issue.

Decision and scope of permission

Laws LJ delivered the judgment, with Richards LJ and Lawrence Collins LJ agreeing. The appeal was allowed and the matter was remitted to the Asylum and Immigration Tribunal. Permission to appeal was not limited merely because the reasons for granting permission referred to one issue. Its scope was determined by the terms of the grant, and judges granting permission should state clearly whether it is limited.

1. Telephone evidence. The appellant had disclosed the uncle’s telephone call to the Refugee Legal Centre in January 2006, shortly after the alleged call. The immigration judge accepted that disclosure. It was therefore unfair and unreasonable to damage the appellant’s credibility because he did not mention the call on later occasions when he was not asked about it. The failure of the Refugee Legal Centre to communicate the information to the Home Office or tribunal was not fairly attributable to the appellant.
2. Other alleged inconsistencies. The discrepancy concerning the timing of the raid and telephone call disappeared when the appellant’s evidence was read fairly. The evidence about the sister’s marriage was also capable of the explanation that the brothers arranged the marriage before leaving, although the marriage took place afterwards. The reference to the sale of the house, rather than the farmland, was explained by the representative as a drafting mistake. These matters could not properly be treated as unexplained contradictions.
3. Appellate intervention. The immigration judge had placed substantial reliance on alleged inconsistencies. Once the principal criticisms were undermined, the determination was fatally affected and could not be sustained by other points. The court did not need to resolve further arguments concerning the expert report.
4. Caution. The case was unusual. The court stressed that factual challenges in asylum appeals should not be presented as errors of law where they merely seek to reargue the facts.

• Court of Appeal (Civil Division): allowed the appeal and remitted the matter to the Asylum and Immigration Tribunal.
• Asylum and Immigration Tribunal: on second-stage reconsideration, Immigration Judge Harmston dismissed the appeals on asylum, human rights and humanitarian protection grounds on 19 February 2008.
• Earlier proceedings: an initial appeal was dismissed on 17 August 2007. The AIT later accepted that the first immigration judge had made an error of law and directed reconsideration.