Court of Appeal scrutinizes application of country guidance cases in asylum appeals

Citation: [2024] EWCA Civ 149
Judgment on

Introduction

In the case of FA (Iran) v Secretary of State for the Home Department [2024] EWCA Civ 149, the Court of Appeal (Civil Division) grappled with issues pertaining to asylum claims, sur place activities, and the application of country guidance cases to an appellant’s credibility and risks upon return to their country of origin. Crucial legal principles related to the treatment of new country guidance cases and their impact on assessments of risk upon return were highlighted. This article dissects the legal principles involved and links them with the relevant parts of the case summary.

Key Facts

  • The appellant, a Kurdish national from Iran, was denied asylum and sought appeal.
  • The focus was on his credibility regarding his involvement with the Kurdish Democratic Party of Iran (KDPI) prior to leaving Iran, and the risk he would face on return due to his sur place activities - notably Facebook posts made in the UK which were critical of the Iranian regime.
  • The First-tier Tribunal (F-tT) dismissed his appeal, finding inconsistencies in his story and rejecting his claimed involvement in political activities in Iran. The F-tT also found that although he had left Iran illegally and posted anti-government content on Facebook, these actions would not place him at significant risk if returned.
  • The Upper Tribunal (UT) affirmed the F-tT’s decision stating that the subsequent case law (namely XX) supported the F-tT’s assessment.
  • The Court of Appeal was tasked with determining whether the UT erred in law by considering subsequent country guidance case law (XX) and whether those errors were material, affecting the outcome for the appellant.

  • Country Guidance Cases: Central to this case was the application and interpretation of country guidance cases, particularly with regards to Kurdish Iranians. The Court emphasized the authoritative nature of these cases in providing guidance on how certain categories of claimants should be generally treated.

  • Risk on Return: The case scrutinized what constitutes a substantial risk on return, with the ‘hair-trigger’ approach taken by Iranian authorities towards suspected political dissidents, especially Kurds, being a focal point (referenced from HB).

  • Credibility of the Asylum Claimant: The assessment of the claimant’s credibility was a key aspect, with the F-tT finding the appellant’s account not credible based on perceived inconsistencies and lack of detail.

  • Sur Place Activities: The Court considered the significance of activities undertaken by the appellant in the UK, such as his Facebook posts against the Iranian regime, and whether these activities exposed him to risk on return under the country guidance cases, particularly BA and HB.

  • Application of Subsequent Case Law: The propriety of considering a later country guidance case (XX) not available at the time of the F-tT decision was scrutinized, with an emphasis on the principle that such cases should not be applied retrospectively to affect an individual’s fate in asylum claims.

Outcomes

  • The Court of Appeal identified legal errors in the UT’s decision to affirm the F-tT’s rulings. The UT erroneously took into account the later country guidance case XX, despite it not being in existence at the time of the F-tT decision.

  • The Court of Appeal determined that the appellant’s case should be remitted to the F-tT, with a different judge, to reassess the risk the appellant might face upon return to Iran based solely on his sur place activities.

  • The Court directed a case management hearing to decide what form the remitted hearing should take and clarified that certain credibility findings from the original F-tT hearing should be preserved.

Conclusion

The Court of Appeal’s decision in FA (Iran) v Secretary of State for the Home Department elucidates the salience of accurate application of country guidance case law and the stringent assessment of risk on return in asylum claims. It reinforces the necessity for clear findings of fact and coherent reasoning, particularly when evaluating sur place activities and their implications in terms of risk to an asylum seeker upon return. The Court’s thorough examination of these principles will guide future tribunals on appropriately considering asylum appeals, especially in relation to sur place activities and the retrospective application of country guidance cases.