Iraqi Kurd who claimed to be at risk of honour killing loses final asylum refusal challenge

Lady Paton

About this case:

• Citation:
  [2022] CSIH 19
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lady Paton

Mariwan Hassan argued that the Lord Ordinary had erred in refusing him permission to proceed with his petition and that the First-tier and Upper Tribunal had failed to have appropriate regard to evidence given by his partner at a second hearing.

The appeal was heard by Lady Paton, Lord Pentland, and Lord Doherty. Winter, advocate, appeared for the appellant and A McKinlay for the Secretary of State for the Home Department.

Lower status

The appellant arrived in the UK with his partner K on 4 October 2016 but was initially refused asylum. At a First-tier Tribunal hearing at which neither the appellant nor K gave oral evidence, the judge concluded that he was not satisfied that the appellant had established he would be at real risk of harm if he were returned to Iraq.

At a second FtT hearing in January 2020, evidence was given by K, who by then had become the appellant’s wife. She gave evidence that her family had disapproved of her marrying someone of lower status and that they had attacked the appellant with knives on one occasion. The appellant also relied on medical evidence confirming that injuries he had sustained were consistent with being stabbed, although it was also concluded that they could have been caused by an accident.

The second FtT concluded that the appellant had still failed to establish he would be at risk of serious harm, a decision that was upheld by the Upper Tribunal. In the judicial review proceedings that followed the Lord Ordinary, referring to the guidance in Devaseelan v Home Secretary (2003) on evidence not led at a first FtT, concluded that the second FtT had treated K’s evidence appropriately and that the appellant’s argument fell far short of being strongly arguable with a high prospect of success.

Counsel for the appellant submitted that the second FtT’s decision had given little explanation of why it had treated K’s evidence in the manner that it did and had arguably erred in law in its treatment. It was accepted that the appellant had provided no good reason as to why that evidence was not led at the first FtT, but nonetheless there was a real prospect of success and the strongly arguable error in law combined with the severe consequences for the appellant were he to be returned to Iraq satisfied the tests in section 27B of the Court of Session Act 1988.

Greatest circumspection

Delivering the opinion of the court, Lady Paton began: “The sole issue relied upon before us was the assessment of K’s evidence by the second FtT. While it was not disputed that the guidance in Devaseelan should be applied, it was submitted that K’s credibility and reliability should have been fully and properly assessed. If her evidence was rejected, reasons should have been given.”

She observed: “We consider that K’s evidence (concerning the hostility shown by her family to both herself and the appellant; the family’s powerful position; the physical attack upon the appellant as a result of which he suffered stab wounds; and K’s fear that, were she and the appellant to return to Iraq, her family would be able to trace them and kill them) falls squarely within the type of evidence referred to in proposition 4 of Devaseelan.”

Addressing the FtT’s treatment of K’s evidence, she said: “The second FtT required to treat her whole evidence ‘with the greatest circumspection’ unless there was some very good reason why her evidence was not led before the first FtT. No such reason was given. Applying the guidance in Devaseelan, the second FtT was entitled to assess K’s evidence as a whole, weigh it up, add it to all the evidence to be considered in the round, and ultimately conclude that the tribunal was not persuaded.”

Lady Paton concluded: “We have found no error of law on the part of the second FtT in the assessment of K’s evidence. It follows that the UT was correct to refuse permission to appeal and that the present application has no real prospect of success. In any event, the case does not raise any important point of principle or practice and there is no other compelling reason to allow the petition to proceed.”

The appeal was therefore refused.