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

On a renewed application for permission to appeal, the subsequent setting aside of country guidance relied on below may arguably undermine the lower tribunal’s decision, although it may not suffice alone. Permission may nevertheless be granted where the appellant’s highly unusual vulnerability provides a compelling reason for the appeal to proceed, particularly where evidence suggests an inability to participate rationally or instruct a solicitor. The court need not determine the merits at the permission stage.

MW challenged Senior Immigration Judge Taylor’s determination dated 7 October 2010, which dismissed his appeal against refusal of leave to remain on asylum grounds and under Article 15(c) of the Qualification Directive. The determination was in the Upper Tribunal (Immigration and Asylum Chamber), ref [AA/07979/2009]. The judge had relied on HM & Ors Article 15(c) (Iraq) CG [2010] UKUT 331, concerning risk in Mosul. That guidance had since been set aside in HM (Iraq) [2011] EWCA Civ 1536 because of an unusual procedural problem. The renewed application concerned whether the appeal should proceed in light of that development and the appellant’s vulnerability and mental capacity.

1. Permission granted. The Court of Appeal granted the oral renewal of the application for permission to appeal. It did not determine the substantive asylum or Article 15(c) issues.
2. Senior Immigration Judge Taylor had relied on the Upper Tribunal’s country-guidance decision in HM & Ors Article 15(c) (Iraq) CG [2010] UKUT 331 when assessing the risk in Mosul. That decision had subsequently been set aside by the Court of Appeal in HM (Iraq) [2011] EWCA Civ 1536. It had not been set aside because it was necessarily factually wrong, but because of an unusual procedural problem. It was therefore no longer safe to rely on the guidance, which arguably undermined the conclusion below.
3. The procedural development might not have been sufficient by itself. The appellant’s debilitating conditions, vulnerability and evidence that he functioned at the level of an immature 12-year-old supplied an additional compelling reason for the appeal to proceed.
4. The recent psychological report stated that the appellant was unable to participate rationally in proceedings concerning removal and would have difficulty instructing a solicitor. In those circumstances, legal representation was probably essential if the appeal were pursued. If doubts remained about his mental capacity, lawyers would need to consider whether the Official Solicitor or another litigation friend should be involved.
5. The application was granted. The intended appeal was to be listed for half a day before three judges, potentially including a High Court judge. A transcript was directed to be made available at public expense and sent to the appellant and the Home Office.

• Upper Tribunal (Immigration and Asylum Chamber): Senior Immigration Judge Taylor dismissed MW’s appeal against refusal of leave to remain on asylum grounds and under Article 15(c) of the Qualification Directive in a determination dated 7 October 2010, ref [AA/07979/2009]. Permission to appeal was refused.
• Court of Appeal (Civil Division): On 25 January 2012, Lord Justice Lloyd granted permission to appeal on oral renewal. The merits were not determined.