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

A tribunal’s reasoning on credibility is an error of law where it is irrational in light of the objective evidence it has summarised. A sentence cannot be treated as fitting the evidence for an offence when the judge’s own account gives a materially different penalty for that offence.

In assessing whether removal creates a real risk of treatment contrary to Articles 2 and 3, the decision-maker must identify risk rather than certainty. Failure expressly to address one evidential issue is not necessarily an error where the material evidence has been considered. An additional error not identified as a ground for reconsideration cannot be used on appeal to bolster that order.

The appellant, an Iraqi national of Kurdish ethnicity, claimed asylum on the basis that he had been falsely convicted of rape in Iraq and faced a real risk of imprisonment and serious harm on return.

Immigration Judge Lowe dismissed the asylum claim but allowed the appeal on human-rights grounds, finding a real risk of treatment contrary to Articles 2 and 3. Senior Immigration Judge Nichols ordered reconsideration on the grounds that the judge had inadequately reasoned her credibility finding and had failed properly to assess whether the appellant would be pursued by the Iraqi authorities.

The appeal concerned the reconsideration decision of the Asylum and Immigration Tribunal dated 3 September 2007 ([AIT No: AA/04748/2005]). The Secretary of State conceded that that decision could not stand. The central issue was whether reconsideration had nevertheless been justified by errors of law in the original determination.

Keene LJ gave the judgment of the court. Arden LJ and Mummery LJ agreed.

1. Outcome. The appeal was allowed to the extent conceded. The reconsideration decision was quashed and the matter was remitted to the Asylum and Immigration Tribunal for fresh consideration.
2. Credibility and objective evidence. The original judge had treated the appellant’s sentence of 15 years’ imprisonment for rape as fitting the objective evidence, although her own summary stated that rape attracted life imprisonment and that lower sentences applied to other sexual offences. That reasoning was irrational and amounted to an error of law. It independently justified reconsideration.
3. Assessment of risk on return. The second alleged error was less justified. The original judge had considered the then-current judicial and prison systems in Iraq. Although she had not expressly addressed how sentences imposed under Saddam Hussein’s regime would be treated, the state of the evidence did not necessarily make that omission an error of law. In any event, the relevant assessment required identification of a real risk, rather than certainty.
4. Unidentified additional ground. The Secretary of State could not rely on an alleged failure to address prison conditions as a further basis for upholding reconsideration, because that was not an error identified by the Senior Immigration Judge. The first error was sufficient in any event.

1. Court of Appeal (Civil Division). Appeal allowed to the extent conceded; the reconsideration decision was quashed and the matter remitted to the Asylum and Immigration Tribunal.
2. Asylum and Immigration Tribunal. Reconsideration decision dated 3 September 2007; the Secretary of State conceded that it could not stand.
3. Original tribunal determination. Immigration Judge Lowe dismissed the asylum appeal but allowed the appeal on human-rights grounds. Reconsideration had been ordered by Senior Immigration Judge Nichols on two alleged errors of law.