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

Permission to appeal should be granted where proposed grounds raise reasonably arguable issues of law with a real prospect of success. The court need not decide the merits at that stage. A challenge is not merely evidential where it alleges legal errors in assessing future risk, including failures to consider current country material or accepted past persecution. The second-appeal test does not apply where the First-tier Tribunal and Upper Tribunal approached the case on wholly different bases. Even if it applies, compelling reasons may justify hearing a case involving potential danger on return.

HK, an Iraqi national, sought permission to appeal after Upper Tribunal Judge Hanson dismissed his asylum and human-rights appeal on 27 March 2014. The First-tier Tribunal had rejected the claim on a different basis. An earlier appeal had resulted in a consent order remitting the matter to the tribunal in April 2012.

The applicant alleged that the Upper Tribunal had made errors of law in assessing future risk after finding that he had suffered serious past persecution. He relied on failures to assess current country evidence, the significance of past persecution and his claim under article 15(c) of the Qualification Directive. The central question was whether the proposed grounds were sufficiently arguable to justify permission to appeal.

Permission to appeal granted.

1. The second-appeal test did not apply because the First-tier Tribunal and Upper Tribunal had rejected the claim on totally different bases. The application was therefore effectively treated as a first appeal.
2. Alternatively, if the second-appeal test applied, the potential danger facing the applicant on return constituted compelling reasons why the appeal should be heard.
3. The proposed grounds raised arguable issues of law with a real prospect of success. They were not confined to challenges to the Upper Tribunal’s evidential findings.
4. In particular, it was reasonably arguable that the future-risk assessment was legally flawed because the tribunal had failed properly to engage with paragraph 339K of the Immigration Rules, had relied on materially earlier country evidence, had selectively analysed the material before it, and had failed to assess risk in the context of the accepted past persecution. Those alleged errors also arguably affected the assessment under article 15(c) of the Qualification Directive.
5. The court expressly left the merits open for the full appeal. The operative order was that the application for permission was granted.

1. Upper Tribunal — Upper Tribunal Judge Hanson dismissed the applicant’s asylum and human-rights appeal on 27 March 2014.
2. Court of Appeal (Civil Division) — Permission to appeal was granted. The court noted that an earlier appeal had been remitted to the tribunal by consent in April 2012.