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

An appellate court deciding whether an error of law in a protection appeal was immaterial must first identify the error, its extent and its effect on the tribunal’s reasoning. It cannot treat criticised passages as disposable without that analysis. The question is whether, on the material before the tribunal, every rational tribunal would have reached the same result.

General country material must be assessed for what it actually shows. It is an error to treat material which does not contradict an account as rendering that account inconsistent or incredible. Particular care is required in protection claims, where direct evidence from the country of origin may be limited and the claimant need only establish a real risk.

The appellant, an Iraqi Kurd, claimed protection on the basis that he would face violence from his girlfriend’s family because of their relationship and his role in arranging for her to go to a women’s refuge.

The First-tier Tribunal dismissed his appeal against the refusal of his protection claim, finding his account not credible and reliable. It relied in part on Country Policy and Information Notes concerning so-called honour crimes, marriage practices and the status of women in Kurdistan. The Upper Tribunal dismissed his appeal, characterising the challenged passages as superfluous.

The central issue was whether the First-tier Tribunal’s credibility reasoning contained material errors and whether the Upper Tribunal lawfully treated any errors as immaterial.

1. Appeal allowed. Lady Justice Elisabeth Laing, with whom Lady Justice Simler and Lord Justice Baker agreed, held that the First-tier Tribunal had made material errors of law and that the Upper Tribunal had erred in treating the impugned reasoning as superfluous.

2. In a protection claim, historical facts need not be proved on the balance of probabilities. The tribunal must assess all the material to determine whether return would create a real risk of Convention persecution or treatment contrary to article 3. That assessment must recognise the practical difficulty of obtaining direct evidence from the country of origin: Karanarkaran v Secretary of State for the Home Department [2000] 3 All ER 449.

3. The First-tier Tribunal had misunderstood the appellant’s case about threats and treated background material on so-called honour crimes as if it contradicted that case. It also treated general material about marriage ages, and a single anonymous view about acceptance of marriage proposals, as showing that the appellant’s account was inconsistent with the evidence. The material did not logically contradict his account and, in material respects, could support it. The tribunal gave no adequate explanation for assigning decisive weight to the isolated source.

4. Materiality could not be assessed by notionally excising the flawed passages. The Upper Tribunal first had to decide whether there were errors, their nature and extent, and the effect they had on the other reasons for dismissing the claim. The governing inquiry, drawn from Secretary of State for the Home Department v AJ (Angola) [2014] EWCA Civ 1636, was whether the evidence made the same outcome inevitable for any rational tribunal.

5. That test was not met. A rational tribunal might have rejected the claim on the remaining evidential gaps and inferences, but was not bound to do so. The errors were therefore material, and the appeal was allowed.

• Court of Appeal (Civil Division): Allowed the appellant’s appeal from the Upper Tribunal: [2023] EWCA Civ 1282.

• Upper Tribunal (Immigration and Asylum Chamber): Dismissed the appellant’s appeal from the First-tier Tribunal.

• First-tier Tribunal (Immigration and Asylum Chamber): Dismissed the appellant’s appeal against the Secretary of State’s refusal of his protection claims.