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

Permission to appeal in an asylum case should be refused where the tribunal’s conclusion that an applicant can internally relocate is rationally open on the evidence and discloses no error of law. A country-guidance decision does not prevent a later tribunal from reaching a different conclusion where later evidence materially addresses the applicant’s particular circumstances. Evidence concerning a professional qualification, including the availability and reception of doctors in the proposed area of relocation, may be central to that assessment. An appellate court should be cautious where a case is advanced in a materially different way from the case presented to the tribunal. New material will not justify permission where it could not realistically have affected the outcome.

The appellant, an Iraqi doctor who had converted from Sunni Islam to Christianity, sought asylum in the United Kingdom. The Secretary of State refused the claim. On reconsideration, the Asylum and Immigration Tribunal accepted that he was a Christian convert and a doctor, but upheld the possibility of internal relocation to the Kurdish autonomous region of northern Iraq.

The appellant argued that the tribunal had wrongly departed from the country-guidance decision in NS (Iraq: perceived collaborator: relocation) Iraq CG [2007] UKAIT 00046. He also relied on new material concerning the criteria for enforced return. The issue was whether the tribunal’s conclusion was legally erroneous or irrational.

1. Application refused. The tribunal’s conclusion that the appellant was likely to be admitted to the Kurdish autonomous region was open to it on the evidence and involved no error of law.
2. The tribunal had properly considered the country-guidance decision in NS (Iraq: perceived collaborator: relocation) Iraq CG [2007] UKAIT 00046. That decision stated that relocation to the Kurdistan Regional Government area would generally require lawful admission and sufficient family, community or political links to enable the person to survive there. It did not specifically address the position of doctors or other medical practitioners.
3. The later tribunal had substantial evidence directed specifically to doctors. The country information recorded that displaced persons could be offered employment by Kurdish officials and identified doctors and dentists in the health sector. Other evidence indicated that professional workers, including doctors and engineers, could be admitted. The appellant’s own case was presented on the basis that the region needed doctors but would reject him because of his background. That submission was undermined by his evidence and by the evidence that membership of the Ba’ath Party had been a precondition for doctors under Saddam Hussein.
4. It was therefore rational for the tribunal to conclude that this particular appellant was likely to be admitted despite being a Sunni convert, a returnee and a former Ba’ath Party member. The tribunal was entitled to rely on the evidence before it, including material post-dating the country-guidance decision.
5. New documents concerning the Directorate’s criteria for enforced return could not realistically have altered the result. They pre-dated the later country information on which the tribunal was entitled to proceed. The court also emphasised caution where an argument is advanced on appeal in a materially different form from that presented below.

• Court of Appeal (Civil Division): On 8 April 2008, Lord Justice Longmore agreed with the paper refusal by Richards LJ and refused permission to appeal.
• Asylum and Immigration Tribunal: On 21 June 2007, Senior Immigration Judge Lane and Immigration Judge Halliwell concluded that the appellant could relocate to the Kurdish autonomous region of northern Iraq.
• Reconsideration stage: Senior Immigration Judge Nichols and Immigration Judge Hall found an error of law in the first tribunal decision for failing to consider return to northern Iraq, while preserving the findings that the appellant was a Christian convert and a doctor.
• Initial tribunal decision: On 11 April 2006, Immigration Judge Forrest allowed the appeal on the basis that Sunni Muslims were a persecuted minority in Iraq.