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

In assessing an expert report on the risk of return, an appellate tribunal must engage with the material issues, but it may attach little weight to an opinion materially founded on evidence it has rejected. A tribunal may reject controversial evidence from a witness whose credibility is seriously damaged, provided it does not treat every part of the evidence as automatically false. Severe conditions in the country of return alone do not meet the high threshold of Article 3 of the European Convention on Human Rights.

The appellant, an Iraqi national with indefinite leave to remain and several criminal convictions, appealed against a deportation decision. The Asylum and Immigration Tribunal dismissed his appeal under the Immigration Rules and on Articles 3 and 8 of the European Convention on Human Rights. It rejected his account and attached little weight to an expert report concerning risks arising from his language, lack of local knowledge, family circumstances and alleged family wealth.

On reconsideration, the Senior Immigration Judge upheld the decision. The Court of Appeal considered whether the tribunal had erred in law in its assessment of the expert report and the evidence supporting the asserted risks on return.

1. Appeal dismissed. No error of law was shown in the tribunal’s treatment of the expert report or in the Senior Immigration Judge’s decision to uphold it.

2. The tribunal was entitled to attach little weight to the report because material assumptions concerning the appellant’s family circumstances and wealth were inaccurate or unsupported.

3. The tribunal was entitled to reject the appellant’s evidence that his Arabic was rusty. His credibility had been seriously damaged by his false account that his mother had died, and the evidence was uncorroborated. The tribunal was not required to reject everything he said. It could accept some matters while disbelieving controversial evidence lacking adequate support.

4. The tribunal was entitled to conclude that the appellant’s absence from Iraq would not be detectable from his language alone, given that Arabic was his mother tongue and he had continued to speak it with his family. Once the asserted basis for attracting attention was rejected, there was insufficient evidence of a distinctive kidnapping risk.

5. Harsh conditions in a violent and disordered country, without proof of a real risk of torture or inhuman or degrading treatment to the individual concerned, did not meet Article 3’s high threshold.

Lady Justice Arden and the Chancellor agreed with Lord Justice Dyson. Appeal dismissed.

• Court of Appeal (Civil Division) ([2008] EWCA Civ 899): dismissed the appeal from the Senior Immigration Judge’s reconsideration decision.

• Asylum and Immigration Tribunal: dismissed the appeal against deportation on 3 April 2007. The decision was upheld on reconsideration by Senior Immigration Judge Chalkley on 30 October 2007.