MO (Iraq) v Secretary of State for the Home Departments

On a renewed application for permission to appeal in an asylum case, fuller material may make an error of law in a tribunal’s credibility assessment arguable. For Article 3 of the European Convention, the risk-on-return assessment must address the actual consequences of return for a person who, if credible, would face imprisonment for a substantial sentence. Relevant considerations include both the legal process and conditions in custody. A tribunal’s focus on the general judicial process, without addressing custody conditions, can leave an arguable issue requiring permission to appeal.

MO (Iraq) v Secretary of State for the Home Departments concerned an Iraqi appellant who entered the United Kingdom illegally, claimed asylum, and asserted that removal would breach the Refugee Convention and Article 3 of the European Convention. His application was refused. The first tribunal accepted his evidence and allowed the appeal under Article 3, but dismissed it on asylum grounds. On reconsideration following the Secretary of State’s appeal, the tribunal found errors concerning credibility and risk on return, and the second tribunal dismissed the appeal. The Court of Appeal considered a renewed application for permission to appeal on whether those conclusions involved arguable errors of law, including the risk faced by the appellant as a convicted prisoner.

Permission granted. Pill LJ granted the renewed application on the credibility and Article 3 grounds. The court did not determine the substantive appeal or finally decide whether removal would breach Article 3.

1. Credibility. The court had fuller material than was available when Dyson LJ considered the application on paper. That material made it arguable that the first tribunal had not erred in law in accepting the appellant’s credibility. The appellant therefore should have an opportunity to argue that issue on appeal.
2. Article 3 risk on return. The asserted risk had to be considered on the basis that, if the appellant’s account were accepted, he would return to Iraq as a person convicted of rape under the former regime and facing a 15-year sentence. The relevant circumstances included the legal process available to challenge the conviction and the conditions of custody. The April 2005 CIPU report described serious deficiencies, including denial of legal and family access, summary trials, torture-related confessions and poor detention conditions. It was arguable that those matters created a risk of an Article 3 breach.
3. Failure to address a material issue. The later tribunals had concentrated on the judicial process and had not dealt with the custody position of someone serving a 15-year sentence. That omission made the Article 3 ground arguable, notwithstanding the high threshold for establishing a breach.

The formal order was that the renewed application was granted.

1. Court of Appeal (Civil Division) — On 29 April 2008, Pill LJ granted the renewed application for permission to appeal. Dyson LJ had previously granted permission on grounds 2 to 9 and refused permission on ground 1.
2. Asylum and Immigration Tribunal — The first tribunal’s determination of 15 August 2005 allowed the appeal under Article 3 but dismissed it on asylum grounds. On reconsideration, the tribunal found errors of law concerning credibility and risk on return; the second tribunal’s decision of 28 August 2007 dismissed the appellant’s appeal.