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

An appellate court must respect the primary fact-finder’s advantage, particularly in asylum proceedings, while scrutinising reasoning carefully because an erroneous rejection may have severe consequences. Lack of corroboration may properly affect the assessment of evidence where the applicant has already been found unreliable.

Where a decision rests on several grounds and most are unsustainable, it cannot stand unless the remaining ground clearly suffices or the appellate court can safely uphold the decision on that or another basis. Limited political activity and publicity in the United Kingdom do not alone establish a real risk on return. The applicant must provide evidence supporting awareness or concern on the part of the foreign authorities.

The appellant, an Iranian national of Kurdish ethnicity, claimed asylum on the basis of his alleged involvement with Komala in Iran and his subsequent political activities in the United Kingdom. The Secretary of State rejected his account. Following an earlier reconsideration order, a Senior Immigration Judge dismissed his appeal under the Refugee or Person in Need of International Protection (Qualification) Regulations 2006, Paragraph 339C of the Immigration Rules and the European Convention on Human Rights 1950.

The tribunal rejected important aspects of the evidence given by the appellant and a Komala representative. It also found that the appellant’s activities in the United Kingdom would not come to the attention of the Iranian authorities. The central issue was whether the tribunal’s adverse credibility reasoning and its assessment of the alleged risk arising from those activities were legally sustainable.

1. Appeal allowed and remitted. The tribunal’s decision could not safely stand because two of its three reasons for rejecting the appellant’s account of his political activity in Iran were unsustainable. The asylum appeal was remitted to the Asylum and Immigration Tribunal for rehearing by a different Immigration Judge.

2. An appellate court must be very wary of interfering with findings made by the primary fact-finding tribunal. That restraint is particularly important in asylum proceedings, where language and cultural differences, variable supporting evidence, pressure upon applicants and administrative constraints make fact-finding difficult. The potentially catastrophic consequences of a mistaken rejection nevertheless require careful scrutiny of the tribunal’s reasoning.

3. The tribunal was entitled to note that crucial parts of the appellant’s account were uncorroborated. It did not impose corroboration as a legal requirement. It reasoned permissibly that, once the appellant was regarded as unreliable, the absence of supporting evidence made it easier to reject those parts of his account.

4. The tribunal lacked a fair basis for rejecting the Komala representative’s account as a sheer coincidence. The appellant came from a family said to be known for Kurdish political activity. Nor was it sustainable to disbelieve the appellant merely because he returned to a demonstration after nearly being arrested, especially when his evidence was that he remained at its margins. The absence of evidence that his uncle had been punished was neutral because the expert evidence did not establish that such punishment was likely.

5. The appellant’s poor knowledge of Komala could carry some weight, but it could not safely sustain the decision alone after the other principal reasons had failed. Where a decision rests on three grounds and two are rejected, it cannot stand unless it is clear that the same decision would have followed from the surviving ground, or the appellate court can safely uphold it on that or another ground.

6. The tribunal was, however, entitled to reject the separate claim based on political activities in the United Kingdom. The activities were limited, and there was no evidence that the Iranian authorities knew or would learn of them, identify the appellant, or regard his involvement as sufficiently serious. The question concerning Article 4(3)(d) of the Qualification Directive 2004/83/EC was therefore unnecessary to determine.

1. Court of Appeal (Civil Division): In [2008] EWCA Civ 310, unanimously allowed the appeal and remitted the asylum appeal to the Asylum and Immigration Tribunal for rehearing by another Immigration Judge.
2. Permission to appeal: Longmore LJ refused permission on the papers. Laws LJ subsequently granted permission because of concern about the quality of the tribunal’s reasoning.
3. Asylum and Immigration Tribunal: A Senior Immigration Judge dismissed the reconsidered appeal. An earlier tribunal determination had been reconsidered following identification of an error of law.
4. Secretary of State: Refused the asylum claim in December 2005.