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

On a renewed application for permission to appeal in an asylum case, a challenge to an immigration judge’s reasons may have a real prospect of success where it is arguable that the judge was entitled to assess credibility in the round and treat a discrepancy in political-party initials as a youthful error rather than decisive. A further complaint that the first-stage reconsideration introduced an entirely new and unfair ground based on a second explanation for the discrepancy had no real prospect of success where it supported the existing inadequate-reasons ground. Permission was therefore granted on the first ground only.

FJ, an Iranian Kurd, succeeded before Immigration Judge Phull in his claim for refugee status under the Convention. The Secretary of State appealed, alleging inadequate reasons for accepting his credibility, particularly concerning the discrepancy between the names IDP and KDPI. At first-stage reconsideration, SIJ McKee accepted that complaint and also accepted an additional complaint concerning FJ’s later assertion that the discrepancy resulted from an interpreter’s error. On a renewed application, the Court of Appeal considered whether either ground had a real prospect of success.

Application granted in part. Permission to appeal was granted on the first ground only. The appellant was required to transfer that ground formally from his skeleton argument into his grounds of appeal.

1. The first ground was properly arguable. Although framed as a complaint of inadequate reasons, it was not necessarily an illegitimate attack on the immigration judge’s factual findings. The judge was entitled to assess the evidence in the round and decide whether the discrepancy between IDP and KDPI should ultimately be held against FJ. Her decision sufficiently indicated that she accepted the discrepancy as an error but considered it an error by a young person which did not undermine his overall credibility. The Secretary of State might seek to make the discrepancy the essential issue, but the judge was entitled to consider the wider evidence, including the accounts of the demonstration and the supporting letters.
2. The second ground had no real prospect of success. The argument that SIJ McKee had introduced an entirely new and unfair ground based on FJ’s later explanation of the discrepancy was rejected. The additional point was capable of supporting the original pleaded complaint that Immigration Judge Phull had given inadequate reasons, rather than constituting a wholly new ground of appeal.
3. Lord Justice Stanley Burnton agreed with Lord Justice Rix. He added that the Secretary of State’s position remained arguable at the substantive appeal hearing, as had the decision of Sedley LJ.

The order was accordingly: application granted in part.

1. Court of Appeal (Civil Division) — In [2008] EWCA Civ 685, the renewed application for permission to appeal was granted in part. Permission was given on the first ground only.
2. Asylum and Immigration Tribunal — Immigration Judge Phull found in FJ’s favour on his refugee-status claim. The Secretary of State appealed. At first-stage reconsideration, SIJ McKee accepted the inadequate-reasons challenge and an additional complaint concerning the contradictory explanations for the discrepancy. A reconsideration decision was promulgated on 22 December 2007.