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

On a renewed application for permission to appeal in an asylum case, the court must apply anxious scrutiny to any arguable complaint that the tribunal failed to give proper reasons. A tribunal should confront the material case actually advanced on a critical factual issue. An apparently factual dispute may therefore raise a point of law where the reasoning does not address a plausible explanation central to the claim. Permission may be confined to that issue. Granting permission does not require the court to accept the applicant’s factual account or determine the merits of the appeal.

The applicant, an Iranian national, claimed asylum based on an adulterous relationship and alleged resulting risk from the authorities and another man. After several tribunal decisions and a remittal, the Upper Tribunal, by decision dated 10 March 2011, dismissed his appeal. The applicant renewed his application for permission to appeal after permission had been refused on the papers. The central issue was whether the Upper Tribunal had adequately addressed his explanation that the alleged discovery of the relationship followed access to recently dialled numbers on his mobile telephone.

The renewed application for permission to appeal was granted only on the telephone issue. The court made no determination that the applicant’s account was true or that the Upper Tribunal’s factual conclusions were wrong.

1. Proper approach. Arguments which merely turn factual disagreements into points of law commonly do not justify permission. That general caution does not remove the court’s duty to apply anxious scrutiny in asylum cases.
2. Arguable failure to give reasons. The Upper Tribunal rejected the applicant’s account that the other man had discovered the relationship through the mobile telephone because the woman’s number was not identified in the telephone directory. The applicant’s case, however, was that the number could have been reached by dialling numbers recently called. He had consistently advanced that possibility and had not claimed personal knowledge of precisely how the discovery occurred. Laws LJ considered it arguable that the tribunal had not confronted the case as it was actually put, as required by its duty to give proper reasons.
3. Scope and order. Permission was granted on the single point concerning the telephone. The remaining grounds disclosed nothing arguable. The application was therefore granted, with the appeal to be heard by three judges, one of whom could be a High Court judge.

1. Court of Appeal (Civil Division): on 10 November 2011, Laws LJ granted the renewed application for permission to appeal, limited to whether the tribunal had adequately addressed the telephone explanation.
2. Upper Tribunal (Immigration and Asylum Chamber): SIJ Lane dismissed the applicant’s appeal against the refusal of asylum on 10 March 2011.
3. Earlier tribunal proceedings: the first-instance immigration judge allowed the appeal on 28 June 2009. Reconsideration was ordered, and the factual finding that the applicant had been involved in a relationship with a married woman was preserved. A later dismissal was set aside by consent, and the matter was remitted for a fresh decision.
4. Permission stage: permission to appeal to the Court of Appeal had previously been refused on the papers by Stanley Burnton LJ on 4 August 2011.