OH (Libya) v Secretary of State for the Home Department

On a renewed application for permission to bring a further appeal in an asylum case, the applicant must show an important point of principle or practice, or another compelling reason for the appeal to be heard. The seriousness of removal consequences and a fresh Upper Tribunal hearing do not automatically satisfy that requirement; the merits must still be assessed. Where the Upper Tribunal identifies the correct internal-relocation principle, considers the evidence and gives adequate reasons for its factual findings, disagreement with those findings will not ordinarily amount to an arguable error of law. A lack of any real prospect of success, together with no compelling reason, justifies refusal of permission.

OH (Libya) v Secretary of State for the Home Department concerned a Libyan national’s renewed application for permission to appeal in an asylum claim. He feared persecution because members of his family had supported the former Gaddafi regime and argued that he could not safely relocate within Libya.

The First-tier Tribunal dismissed his claim. The Upper Tribunal ordered a complete rehearing, considered further evidence including expert evidence, and dismissed the appeal. Permission to appeal was refused on paper by Sir Richard Buxton. The central issues were whether the Upper Tribunal had made an arguable error of law in its approach to internal relocation and whether the asylum context and fresh rehearing constituted a compelling reason for a further appeal.

Lord Justice Moore-Bick refused the renewed application for permission to appeal.

1. Permission gateway. A further appeal required the applicant to show either an important point of principle or practice, or some other compelling reason for the Court of Appeal to hear it. The application could not succeed merely because the case concerned asylum or because the Upper Tribunal had conducted a fresh hearing.
2. Internal relocation and factual findings. The Upper Tribunal had identified the correct principle governing internal relocation and had applied it to the facts as found. Whether the applicant would be identified on return as a supporter of the former regime, and whether that identification would expose him to a real risk of attack, were questions of fact. The Tribunal found that there was no sufficient reason to identify him in that way and that such identification would not automatically create a real risk.
3. The Upper Tribunal had considered the expert evidence, although it dealt with some aspects briefly, and had sufficiently explained why it rejected the expert’s more general assessment of risk. Its reasoning was not so defective as to disclose an arguable error of law.
4. The applicant’s case had been considered at both tribunal stages. The fact that the Upper Tribunal’s hearing was a rehearing did not mean that the case had previously received no proper consideration. Some assessment of the merits remained necessary, and there was no real prospect that the Court of Appeal would interfere with the Upper Tribunal’s decision.
5. No important point of principle or practice and no compelling reason had been shown. The application for permission to appeal was therefore refused.

• Court of Appeal (Civil Division): Permission to appeal had previously been refused on paper by Sir Richard Buxton. The renewed application was refused by Lord Justice Moore-Bick in [2013] EWCA Civ 213.
• Upper Tribunal (Immigration and Asylum Chamber): Ordered a complete rehearing after the First-tier Tribunal had dismissed the asylum claim, then considered the evidence and dismissed the appeal.
• First-tier Tribunal: Immigration Judge Jones dismissed the asylum claim.