DA (Iraq) v The Secretary of State for the Home Department

The second-appeal permission test is stringent but flexible. It may take account of an applicant having succeeded before the First-tier Tribunal but failed before the Upper Tribunal. Credibility may remain material to a human-rights-based return issue where it bears on the availability of identity documents and the ability to trace family members, even if the earlier asylum account is no longer relied upon. A remittal for reconsideration, rather than a final determination, weighs against finding compelling circumstances for a second appeal. Where the proposed appeal has no realistic prospect of success, permission should be refused.

The claimant, an Iraqi national, entered the United Kingdom illegally and claimed asylum. The asylum claim was refused because of inconsistencies and credibility concerns. The First-tier Tribunal nevertheless granted discretionary leave to remain, relying on the inability to obtain travel documents and perceived breaches of Articles 3 and 8 of the European Convention on Human Rights.

The Secretary of State appealed. The Upper Tribunal allowed that appeal, set aside the First-tier Tribunal’s decision and remitted the matter for reconsideration, holding that credibility remained relevant to the claimant’s ability to obtain identity documents and trace male family members. The claimant renewed his application for permission to bring a second appeal. The central issues were the applicable permission threshold and whether the Upper Tribunal had been entitled to treat credibility as material.

1. Disposition. Lord Justice Tomlinson refused the renewed application for permission to appeal. The proposed appeal had no realistic prospect of success, and the fact that the Upper Tribunal had remitted the case for reconsideration rather than made a final determination did not create other compelling circumstances warranting a second appeal.
2. Second-appeal threshold. The stringent second-appeal test is sufficiently flexible to take account of the circumstances of the particular case. In JD (Congo) v Secretary of State for the Home Department [2012] EWCA Civ 327, Sullivan LJ had recognised that flexibility, including where an applicant succeeded before the First-tier Tribunal but failed before the Upper Tribunal. Tomlinson LJ accepted that approach and proceeded on the basis that the claimant had to demonstrate a real prospect of success.
3. Credibility and return documentation. Credibility remained material to whether the claimant possessed identity documents, whether his father retained them, and whether he remained in contact with or could trace male family members who could assist in obtaining replacement documents. That remained so even though the claimant no longer relied on the pre-flight account to establish a claim for international protection.
4. Rationality of the First-tier Tribunal’s reasoning. Without findings on the pre-flight events, it was not rationally open to the First-tier Tribunal to conclude that the claimant’s father might not have retained his identity documents because the claimant had fled and would not be expected to return. The First-tier Tribunal had also implicitly accepted the credibility of the abandoned account when finding that it was reasonable for the claimant to leave his documents in Iraq. There was no logical connection between the relevant conclusions. The Upper Tribunal was therefore not arguably wrong to find the reasoning inadequate and to remit the case.
5. Order. Application refused.

1. Court of Appeal (Civil Division). On 11 November 2015, the court refused the renewed application for permission to bring a second appeal: [2015] EWCA Civ 1523.
2. Upper Tribunal (Immigration and Asylum Chamber). Allowed the Secretary of State’s appeal, set aside the First-tier Tribunal’s decision and remitted the matter for reconsideration.
3. First-tier Tribunal. Granted discretionary leave to remain to secure compliance with Articles 3 and 8 of the European Convention on Human Rights.