PS (Iran) v The Secretary of State for the Home Department

At the permission stage, an appeal should proceed where the material relied on could reasonably have affected the decision-maker’s assessment, particularly where it bears on credibility or risk on return. A material error of fact may amount to an error of law. An adjournment ground may also be arguable where an applicant’s confusion or poor memory could explain why relevant medical evidence was not obtained or disclosed. The court need not finally determine either ground when granting permission. It is sufficient that the proposed appeal is properly arguable and that fairness requires a full hearing.

A 59-year-old Iranian woman applied for permission to appeal against a decision of the Upper Tribunal Immigration and Asylum Chamber, following the dismissal of her protection claim by Designated Immigration Judge Dearden. She alleged that removal would breach the Refugee Convention and the European Convention on Human Rights because of the risk of persecution in Iran.

Before the original hearing, solicitors had sought an adjournment to obtain medical evidence concerning her confusion and poor short-term memory. The judge refused the adjournment and rejected parts of her evidence, including evidence that her children had obtained asylum in Germany. A previously untranslated German court document later supported that evidence. The central questions were whether the failure to adjourn and the material error of fact were arguable errors of law.

1. Permission granted. The renewed application was allowed so that the proposed appeal could proceed to a full hearing. The court did not determine the ultimate merits of either ground.
2. The challenge based on the untranslated German document was clearly arguable. The document supported the appellant’s evidence that her daughter and at least her older son had obtained asylum in Germany. That evidence could have affected the assessment of credibility and might have indicated that the appellant’s position on return to Iran was more precarious. The court therefore could not conclude that the immigration judge would necessarily have reached the same decision had the evidence been before him.
3. The adjournment ground was also sufficiently arguable to be pursued. Although the appellant had been present and might have explained that a neurology appointment had been fixed and missed, her failure to do so might itself have resulted from her confused state of mind. The court was not prepared, at the permission stage, to prevent the ground from being argued.
4. The court noted the submission, based on FP (Iran) v SSHD, that there is no general principle requiring a party to bear the consequences of procedural errors by a representative. It did not finally determine that issue. The appeal was to be listed for half a day.

• Court of Appeal (Civil Division): The renewed application for permission to appeal was allowed. The proposed appeal was directed against the decision of the Upper Tribunal Immigration and Asylum Chamber arising from the determination of Designated Immigration Judge Dearden; the citation of that decision was not stated in the judgment.