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Upper Tribunal failed to properly assess whether error of law was material in asylum appeal


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The Court of Appeal has allowed an appeal from the Upper Tribunal (IAC) against the refusal of an asylum claim by an Iraqi man whose claim was partly based on a risk of violence because of his relationship with his girlfriend. The case is ASO (Iraq) v Secretary of State for the Home Department [2023] EWCA Civ 1282.


The appellant arrived in the UK in December 2017 and claimed asylum the next day. He had previously unsuccessfully claimed asylum in Sweden. His asylum claim was rejected on 20 February 2020. The appellant was not found to be credible by the Home Office for reasons including his failure to give the names of his girlfriend and her father during the screening interview. They also said that there was sufficient state protection and an internal relocation option available to the appellant.

The First-tier Tribunal rejected the appeal, stating that the appellant’s account of his marriage proposal was inconsistent with the country evidence and was therefore not credible. The Tribunal was critical of a lack of evidence of what had happened to his girlfriend and concluded that the appellant had failed to show, to the low standard required, that his girlfriend’s family had threatened harm.

The appeal proceeded to the Upper Tribunal which dismissed it, stating that the country evidence extracts were superfluous and did not add significantly to the First-tier Tribunal’s reasoning. The Upper Tribunal also reminded itself of the narrow circumstances in which it could interfere with a finding of fact by the First-tier Tribunal, and concluded that there was no error in the findings on the evidence about his girlfriend.

The appeal to the Court of Appeal was on two grounds, that the Upper Tribunal did not apply the right test when deciding whether errors were material and that adequate reasons were not given for dismissing the appeal. 

The Court of Appeal’s decision

The Court of Appeal found that the First-tier Tribunal had failed to take into account country evidence that provided some support for the appellant’s account, around the risk to a man in a relationship where the woman’s family disapproved. The evidence that the Tribunal had taken into consideration on marriage ages was general and inconclusive but could potentially provide support for the appellant’s case. The Court of Appeal said that most of the material in the relevant paragraph of the Tribunal’s decision was capable of supporting the appellant’s case and none was capable of contradicting it.

The Court of Appeal considered whether the errors made by the First-tier Tribunal were material and concluded that they were and that this was not a case “in which any rational tribunal would have been bound to make the same evaluations and to draw the same inferences from the matters about which there was, and there was not, evidence in this case.”

On the Upper Tribunal’s decision, the Court of Appeal said that the tribunal should have first identified whether there were any errors, then what they were and that the materiality of any errors could not have been determined without those steps being done first. In assessing whether the errors were material, the Upper Tribunal should have asked what impact any errors had on any good reasons given by the First-tier Tribunal for dismissing the appeal. In the absence of this process being followed, the Upper Tribunal could not have properly determined whether a rational tribunal would have been bound to dismiss the appeal.

The appeal was therefore allowed.


The court said at [58] that “allowances must be made for the intrinsic difficulties inherent in such claims”. This is a useful reminder from the court to the tribunals that the direct evidence a person seeking asylum may be able to provide from their country of origin may be limited.

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Sonia Lenegan

Sonia Lenegan is an experienced immigration, asylum and public law solicitor. She has been practising for over ten years and was previously legal director at the Immigration Law Practitioners' Association and legal and policy director at Rainbow Migration. Sonia is the Editor of Free Movement.