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

A tribunal may take a local authority age-assessment report into account when assessing credibility if the party had the opportunity to challenge its accuracy and reliability and did not do so. Merton compliance does not, however, give every such report the same weight as an expert report.

Under article 8 ECHR, proportionality does not arise unless the proposed interference has consequences sufficiently grave to engage the right. A temporary or contingent obstacle to enforced removal does not itself require the grant of leave to remain. The tribunal must decide the appeal on the facts at the hearing and must not speculate about an asserted future state of limbo.

The appellant, an Iranian national, entered the United Kingdom unlawfully in July 2012 and claimed asylum. He said that he faced persecution because he had assisted members of PJAK. The First-tier Tribunal rejected his account, relying in part on observations recorded in a local authority age-assessment report, and dismissed his asylum, humanitarian protection and human-rights appeals.

The Upper Tribunal, in proceedings identified as AA/09151/2012, found no material error of law. The appellant appealed to the Court of Appeal. He contended that the First-tier Tribunal should not have used the report when making credibility findings and should have considered the suspension of enforced escorted removals to Iran when addressing article 8 ECHR.

The central issues were whether the report could properly be used as evidence of credibility, and whether the removal policy created an article 8 entitlement to leave to remain.

1. Appeal dismissed. Richards LJ, with whom Sharp LJ agreed, held that the First-tier Tribunal was entitled to consider the contents of the age-assessment report together with the other evidence. The appellant had produced the report, knew of its contents, and made no suggestion that it inaccurately recorded what was said or observed. There was therefore no sensible objection to its use in assessing credibility.

   The court did not accept the Upper Tribunal's unnecessary general observation that a Merton-compliant age assessment has the same weight as an expert report. That proposition was not needed to decide this appeal.

2. The appellant had not advanced the removal-policy point before the First-tier Tribunal. It was not an obvious point within R v Secretary of State for the Home Department, ex p Robinson [1998] QB 929, and had neither an evidential foundation nor support in the material before the tribunal.

3. In any event, the article 8 claim failed at the second question in the Razgar approach. The appellant had no family life in the United Kingdom and had been present for only a short period. Any interference lacked the gravity required to engage article 8 ECHR. Proportionality consequently did not arise.

4. The court followed Abdullah [2013] EWCA Civ 42 and SH (Iran) [2014] EWCA Civ 1469. Article 8 does not ordinarily impose a positive obligation to grant leave merely because enforced return cannot presently occur. A prolonged state of limbo might conceivably raise a future issue, but it did not do so here.

   Returns to Iran were not impossible. The policy suspended only enforced escorted returns; voluntary and unescorted returns with valid documents remained possible. The appellant had not shown genuine unsuccessful attempts to obtain travel documentation. The policy could also change. The tribunal was required to determine the appeal on the facts at the hearing, not speculate about a future limbo.

• Court of Appeal (Civil Division): dismissed the appeal from the Upper Tribunal: [2015] EWCA Civ 491.
• Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge Martin held, in a determination dated 25 September 2013, that the First-tier Tribunal had made no material error of law: AA/09151/2012.
• First-tier Tribunal: dismissed the appellant's asylum, humanitarian protection and human-rights appeal in a determination dated 11 December 2012.