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RM v Secretary of State for the Home Department
Factual and Procedural Background
The Appellant, a 28-year-old man from the Kurdistan Region of Iraq, claimed asylum in the United Kingdom in February 2021. He relied on an alleged honour-based threat arising from a relationship and on political activities opposing Kurdish authorities. [1][2][3][4]
The Respondent refused the protection claims on 4 September 2023, citing inconsistencies and implausibility. The First-tier Tribunal dismissed the appeal in June 2024, finding the Appellant not credible, rejecting his claimed political activities in Iraq, and finding no sufficient risk from his United Kingdom activities. [5][6][7][8][9][10]
The Upper Tribunal dismissed the Appellant’s challenge. Permission was subsequently granted to appeal to the Court of Appeal on five grounds, but only Grounds Three and Five were pursued. Ground Three concerned the treatment of a concession relating to the First-tier Tribunal’s alleged failure to consider a clarificatory letter. Ground Five concerned the Appellant’s political activities and prospective risk on return. [11][12][13][14]
Legal Issues Presented
- Whether the First-tier Tribunal materially erred by failing to consider relevant parts of the clarificatory letter concerning the Appellant’s political activities and their relationship to his account. [15][16][17]
- Whether the Upper Tribunal acted unfairly by rejecting or departing from the Respondent’s concession without expressly giving the Appellant an opportunity to address that course. [18][19][16]
- Whether the First-tier Tribunal adequately considered the genuineness of the Appellant’s political beliefs, his likely conduct on return, and the resulting risk from his sur place activities. [20][21][22][23]
- Whether any errors were material to the outcome. [24][25][26]
Arguments of the Parties
Appellant’s Arguments
- The Upper Tribunal acted procedurally unfairly by rejecting the Respondent’s concession without expressly putting that issue to the Appellant. [18][19]
- The First-tier Tribunal failed to consider the clarificatory letter, particularly the passages explaining the Appellant’s political activities and their connection with the breakdown of his relationship. [27][15]
- The omission was material because credibility was central and the relevant passages were substantially consistent with the later witness statement. [28][26]
- The First-tier Tribunal failed to determine whether the Appellant genuinely held the asserted political opinions and what he would do if returned to Iraq. [20][29][21]
Respondent’s Arguments
- The Upper Tribunal was not bound by the qualified and narrow concession, which did not concede that any error was material. [27]
- There was no procedural unfairness because the issue had been fully argued before the Upper Tribunal and the Appellant had the opportunity to address the clarificatory letter. [30][31]
- The First-tier Tribunal had considered the letter, including another paragraph expressly referred to in its decision, and the alleged omission was immaterial. [32][33]
- The First-tier Tribunal’s adverse credibility findings established that the Appellant had invented his political activities in Iraq; consequently, it was unnecessary to consider whether he would act on genuine political beliefs after return. [34][35][22]
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| BA (Demonstrators in Britain - risk on return) Iran CG [2011] UKUT 36 (IAC) | Factors relevant to assessing an individual’s role in demonstrations. | The First-tier Tribunal relied on it when assessing the Appellant’s United Kingdom demonstrations. [36] |
| Danian [1999] EWCA Civ 3000 | Risk depends on the authorities’ perception rather than the claimant’s motivation. | The Upper Tribunal considered the First-tier Tribunal’s approach to motivation accurate in the context of sur place risk. [37] |
| HA v SSHD (No2) [2010] CSIH 28; 2010 SC 457 | A tribunal need not accept a concession, but it will usually be unfair to decide against a party on the basis that the concession was wrongly made without indicating that possibility. | The Court considered the principle but held that the qualified nature of this concession and the underlying First-tier Tribunal error were decisive. [38][39][16] |
| Secretary of State for the Home Department v Maheshwaran | The fairness principle concerning departure from a party’s concession. | It was quoted in HA v SSHD (No2) and considered as part of the concession analysis. [40] |
| IM (Pakistan) v SSHD [2018] EWCA Civ 626 | A tribunal may depart from a concession in exceptional circumstances, but should notify the parties and allow further submissions or evidence. | The Court distinguished the present qualified concession from the concession in that case and identified the underlying First-tier Tribunal error as the critical issue. [41][42][43][27][44] |
| Kalidas (agreed facts - best practice) [2012] UKUT 00327 (IAC) | Judges generally should not look behind factual concessions unless exceptional circumstances arise; if they do, the parties should be given an opportunity to respond. | The principle informed the Court’s assessment of the Upper Tribunal’s treatment of the concession. [45][42] |
| MH (Appendix EU; withdrawal of concession) Albania [2025] UKUT 351 (IAC) | There may be wider scope to withdraw a concession where it caused an error of law. | The Respondent relied on it, but the Court resolved Ground Three principally by reference to the First-tier Tribunal’s failure to consider material evidence. [46][16][44] |
| Bahamas International Trust Co Ltd v Threadgold [1974] 1 WLR 1514 | Authority considered in the context of withdrawal of concessions. | It was cited within the discussion relied upon by the Respondent. [46] |
| Rauf v SSHD [2019] EWCA Civ 1276 | Distinction between concessions concerning an erroneous interpretation of the Immigration Rules and factual concessions. | It was cited in the Respondent’s submissions on withdrawal of concessions. [46][47] |
| Abdi v Entry Clearance Officer [2023] EWCA Civ 1455; [2024] Imm AR 2 | Procedural fairness is fact-sensitive; there is no general duty to identify every matter on which a tribunal may rely, although parties ordinarily must have an opportunity to address a new decisive issue. | The Court applied the contextual and fact-sensitive approach to the alleged unfairness. [48][49][30] |
| WN v Secretary of State for the Home Department [2004] UKIAT 00213 | Failure to follow procedural guidance does not automatically establish unfairness, particularly where credibility issues should reasonably have been apparent. | It supported the broader fairness analysis. [50][30] |
| Osei-Bonsu v SSHD [2026] EWCA Civ 1304 | An immaterial error of law does not require a decision to be set aside; the relevant question is whether the outcome would necessarily have been the same. | The Court held that it could not conclude that the same outcome was inevitable because credibility depended materially on the omitted evidence. [24][51][52][26] |
| Simplex GE (Holdings) v Secretary of State for the Environment (1988) 57 P & CR 306 | Analogy concerning refusal of relief where the outcome would inevitably have been the same. | It was cited in explaining the materiality test. [53] |
| R (Smith) v North East Derbyshire Primary Care Trust [2006] 1 WLR 3315 | Analogy concerning materiality and refusal of relief. | It was cited in the materiality analysis. [53] |
| Secretary of State for Communities and Local Government v South Gloucestershire Council [2016] EWCA Civ 74 | Analogy concerning whether an error could have affected the outcome. | It was cited in explaining the applicable materiality approach. [53] |
| Secretary of State for the Home Department v AJ (Angola) [2014] EWCA Civ 1636 | Whether it is clear that any rational tribunal would have reached the same conclusion. | The Court used the principle to reject the argument that the error was necessarily immaterial. [53][54] |
| ASO (Iraq) v Secretary of State for the Home Department [2023] EWCA Civ 1282; [2024] Imm AR 145 | Application of the AJ (Angola) materiality approach in an asylum appeal. | It formed part of the materiality analysis. [53] |
| Jafri v Lincoln College [2014] EWCA Civ 449; [2015] QB 781 | An appeal should be remitted unless the legal error could not have affected the result. | It was cited in the explanation of the materiality test. [53] |
| HJ (Iran) v SSHD [2010] UKSC 31; [2011] 1 AC 596 | The future-risk inquiry asks how the individual will conduct himself on return and how others will react; a person cannot be expected to conceal an aspect of identity he is unwilling to conceal to avoid persecution. | The Appellant relied on it regarding political conduct and risk on return. [55][21] |
| RT (Zimbabwe) v SSHD [2012] UKSC 38; [2013] 1 AC 152 | The principle in HJ (Iran) applies to political beliefs concealed to avoid persecution. | It was considered in the dispute over whether the Appellant’s political beliefs and future conduct required separate findings. [56][57][58] |
| XX (PJAK - sur place activities Facebook) v SSHD [2022] UKUT 23 (IAC) | Whether inquiry into future conduct concerning social-media activity is impermissibly speculative depends on the circumstances. | It was cited in the submissions concerning the Appellant’s Facebook activity and likely conduct on return. [59][60][61] |
Court’s Reasoning and Analysis
The Court held that the First-tier Tribunal’s reference at paragraph [10] was to the later asylum interview, not the screening interview. This followed from reading paragraphs [9] and [10] together and from the Tribunal’s use of “AIR” for the asylum interview and “SI” for the screening interview. [62][63][64]
The Respondent’s concession was narrow and qualified. The Upper Tribunal was entitled to depart from it, and the need to notify parties of a proposed departure depended on the nature and importance of the concession. The central problem, however, was the First-tier Tribunal’s own failure to consider material evidence. [16][65][44]
The First-tier Tribunal referred to one part of the clarificatory letter but did not address paragraphs 4, 6 and 7, which described the Appellant’s political activities and linked them to his account of the relationship and its breakdown. That evidence was substantially consistent with the later witness statement and was directly relevant to the alleged inconsistency. [66][28][67][68]
Because credibility was central, the Tribunal was required to consider each stage of the Appellant’s account and explain which inconsistencies it relied upon. The Court rejected the argument that considering another passage of the letter necessarily meant that the omitted passages had been considered. [17][68]
The omission was material. Although other adverse findings remained, the Court could not conclude that every rational tribunal would necessarily have reached the same credibility conclusion had the omitted evidence been properly considered. [26][54]
Ground Five was linked to Ground Three. The First-tier Tribunal had rejected the Appellant’s claimed political activity in Iraq but had not expressly determined his political motivation in the United Kingdom or what he might do if returned. Those findings were themselves affected by the unsafe credibility assessment. [22][69][70][71]
The Court concluded that proper consideration of the clarificatory letter could produce a different conclusion about the genuineness of the Appellant’s political beliefs and the risk arising from his activities on return. The political-risk assessment therefore required reconsideration. [23]
Holding and Implications
Appeal allowed on Grounds Three and Five. The Court held that the First-tier Tribunal had failed to take account of a material part of the Appellant’s evidence and that this error affected both the credibility findings and the assessment of political risk. [72][73]
The matter was to be remitted to the First-tier Tribunal for reconsideration, with written submissions invited on the terms of the remittal. [23] The direct consequence was that the previous dismissal of the Appellant’s protection appeal could not stand. The opinion discusses no broader implications beyond applying existing principles; no new precedent was set.
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