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

An application for permission to appeal in an asylum case should be assessed at the permission stage, without resolving the merits. A challenge may proceed where it has some force, even if it is not the most promising ground and permission is being granted on other grounds. Immigration judges are expert tribunals, so their assessment of expert evidence about conditions in an individual receiving state will generally be respected. That respect does not prevent permission being granted where an arguable challenge is shown. Permission was granted on grounds concerning internal relocation, the status of country guidance, UNHCR material, expert evidence and the practical logistics of return. The order did not decide whether internal relocation was legally or factually available.

The appellant, an Iraqi national, arrived in the United Kingdom in August 2006 and claimed asylum. The Secretary of State refused the application. Immigration Judge Lewis dismissed the appeal, finding that the appellant faced persecution in his home area after burning a shrine containing copies of the Koran, but could relocate within Iraq. On reconsideration, Immigration Judge Davidge reached the same conclusion.

The appellant sought permission to appeal on five grounds, concerning the internal-relocation test, the country guidance decision in SM (Kurds Protection-Relocation) Iraq CG [2005] UKAIT 00111, UNHCR material, expert evidence and the practical logistics of return to Baghdad. The issue before the Court of Appeal was whether the grounds should proceed.

Permission granted. Lord Justice Jackson granted permission on grounds 1, 2, 3 and 5. These concerned the alleged application of the wrong internal-relocation test, the contention that SM (Kurds Protection-Relocation) Iraq CG [2005] UKAIT 00111 was out of date, the assessment of UNHCR material, and the failure to consider the practical logistics of return to Baghdad.

1. Immigration judges are expert tribunals. Their assessment of expert evidence concerning conditions in individual receiving states should generally be respected.
2. The fourth ground challenged the rejection of part of Ms Pargetter’s expert report. The immigration judge accepted that the report accurately recorded what she had been told, but rejected the relevant account because of the paucity of supporting detail and his expectation that a system requiring militia permission would be reflected in publicly available evidence.
3. The appellant submitted that lack of supporting evidence alone should not have led to rejection and relied on paragraphs 30.08 and 30.17 of UNHCR reports. Lord Justice Jackson considered the point not easy and not especially promising, but saw some force in the submission. Since permission was being granted on the other grounds, it would not be right to shut out the fourth ground.

The Court made no determination of the merits of the asylum claim, the availability of internal relocation or the correctness of the Tribunal’s factual findings. The appeal hearing was to be before a court of three, one of whom could be a High Court judge. Order: application granted.

• Court of Appeal (Civil Division): On 24 November 2008, Lord Justice Jackson granted permission to appeal. [2008] EWCA Civ 1581
• Asylum and Immigration Tribunal: Immigration Judge Lewis dismissed the asylum appeal. On reconsideration, Immigration Judge Davidge reached the same conclusion.