MM (Iran) v Secretary of State for Home Department

In an asylum reconsideration, a tribunal must proceed on accepted factual findings where the parties have not challenged them. It must answer the questions for which reconsideration was ordered, including whether mental illness may impair an applicant’s ability to conceal a conversion, homosexuality or other risk factors on return. In assessing an Article 3 risk arising from mental illness and suicide susceptibility, the tribunal must make a clear finding on available support, including family support. Adequate medical services do not by themselves cure that omission. Where material factual questions remain unanswered, the Court of Appeal should remit the appeal to a fresh tribunal unless the outcome is legally inevitable.

MM, an Iranian national, had previously been found to be homosexual and, by Immigration Judge Pullan, a genuine Christian convert. His fresh asylum claim also relied on mental illness and suicide risk. After Senior Immigration Judge McKee identified errors of law at first-stage reconsideration, a second-stage tribunal was directed to consider whether mental illness could affect his conduct during possible questioning on return and whether he would receive treatment and support. The tribunal revisited the genuineness of his conversion, concluded that it was tactical, and made no finding on the availability of family support in Iran. MM appealed, raising the adequacy of that reconsideration and the Article 3 risk on return.

Appeal allowed. MM’s appeal to the Asylum and Immigration Tribunal was remitted to a new tribunal for fresh consideration of the matters identified by Senior Immigration Judge McKee.

1. Where earlier determinations had accepted MM’s homosexuality and genuine Christian conversion, and the parties agreed that those findings would not be challenged, the second-stage tribunal should have proceeded on that basis. Its decision to revisit the genuineness of the conversion was an error of law. This was consistent with the approach in DK (Serbia) v. SSHD [2006] EWCA 1747 and HF (Algeria) v. SSHD [2007] EWCA 445.
2. The tribunal had been required to assess whether MM’s mental illness might impair his discretion or cause him to disclose or exaggerate his Christianity during questioning on return. It also had to consider the combined effect of other risk factors, including homosexuality and past unislamic offences. The discussion in FS and others (Iran – Christian Converts) Iran CG [2004] UKIAT 00303, including the relevance of additional risk factors and family protection, reinforced why the factual question could not be answered by assuming that MM would not voluntarily confess.
3. For the Article 3 issue concerning mental illness and suicide risk, the tribunal failed to make the clear finding required on whether family support was available in Iran. Family support was an important element of the effective mechanisms relevant to reducing suicide risk. A finding that Iranian medical services were adequate did not dispose of that separate issue. The possible relevance of the reasoning in Y and Z (Sri Lanka) [2009] EWCA Civ 362 was left for the tribunal to consider if it properly arose.
4. The Court of Appeal would not determine the outstanding factual risk questions itself. The appeal was remitted because the matters entrusted to the tribunal had not been answered and the result was not inevitable. Lord Justice Moses and Lord Justice Rimer agreed with Lord Justice Rix.

• Court of Appeal (Civil Division): allowed the appeal and remitted MM’s appeal to a new tribunal for fresh consideration.
• Asylum and Immigration Tribunal: the second-stage reconsideration dated 5 November 2008 revisited the genuineness of MM’s conversion, concluded that it was tactical, and failed to make a finding on family support.
• Asylum and Immigration Tribunal: Senior Immigration Judge McKee’s first-stage reconsideration dated 29 February 2008 identified two errors of law and directed a further reconsideration.
• Immigration Judge Pullan: dismissed MM’s fresh asylum appeal on 9 October 2007.
• Adjudicator Kealy: dismissed MM’s original asylum appeal following the determination published on 13 August 2003.