JK (Syria) v Secretary of State for the Home Department

This is an application for permission to appeal against a decision of the IAT prepared on 2 March 2007. JK is of Syrian nationality. He is an asylum seeker. He arrived in the United Kingdom aged 20 in 2000. No decision was made on his claim for asylum until 2005. Meantime, he had married a Syrian Kurdish woman who was later granted indefinite leave to remain in the United Kingdom, and is now a British citizen. The couple have a son aged two, who is also a British citizen. The applicant is a Kurd.

I would grant permission to appeal in this case, and propose to state the basis only briefly. Two grounds support the application. The first is that the tribunal made an adverse finding of credibility against the applicant on a legally erroneous basis. A number of factors are carefully set out, and we have considered them, and I find no need myself to comment on them in detail. I am of the view that there is a real prospect of success on the second ground of appeal, which is based on the tribunal’s consideration (or lack of consideration) of a report before them dated 7 March 2007 of a Dr Alan George. He is a freelance writer/journalist consultant and academic who specialises in Middle Eastern affairs and who prepared a report in relation to this case.

Ground two is based on the applicant’s conduct since he was in the United Kingdom. He claims to have taken part in demonstrations. He thinks it likely that they will have been filmed by the Syrian authorities -- one of them being outside the Syrian Embassy. The submission was made to the tribunal that record of it would be available to the Syrian authorities, and that on his return, if he is a failed asylum seeker, the applicant will be identified and ill-treated. There is before the court a report of the case of1) IA (Syria) (2) SA (Syria) v SSHD (13/11/07) (CA Civ Div) [2007] All ER (D) 211, a decision of this court on 13 November 2007. We have not seen the transcript of the judgments. Mr Cox tells us that it is not yet available. However, he has helpfully provided a report prepared by a member of the bar, which appears at 2007 All ER Digest at page 211, that had similar features to the present case. In the present case, at paragraph 40 of their determination, the tribunal stated that it was not suggested (I paraphrase) that a film record would be available to the Syrian authorities. The evidence of a Dr G (we do not know whether that is Dr George or not) before the court in the other case was that the Syrian authorities kept anti-regime demonstrations in the United Kingdom under surveillance, and that it was likely that the second claimant would be identified on return as someone who had participated in such demonstrations.

In that case, the court took the view that the tribunal had not been entitled simply to dismiss that evidence as not amounting to evidence at all. That and further information from Amnesty International required to be evaluated. The submission is that it is not correct that it was not suggested by Dr George that such evidence would be available. In my judgment, it is arguable that, and especially following the earlier decision of the court to which I have referred, the appeal should be allowed, and there should be a remission because of the failure of the tribunal to take account of the evidence of Dr George; or, if they did take it into account, on the basis that they have misunderstood it. On the first ground I would also grant permission, though more tentatively. Had it stood alone, I would have needed to hear Mr Cox in much more detail than the court has found it necessary this morning. His skeleton argument deals with a number of unsatisfactory features in his submission which attached to the adverse finding on credibility. I see force in some of those -- particularly, myself, with the conclusions drawn from the lack of further information given by the applicant when he was interviewed. The case made on his behalf is that he answered the questions put to him, and in the absence of supplementary questions, it should not be taken against him that further detail was not given.

I have to say that other points which the tribunal took into account in reaching their conclusion on credibility appear to me to be far more cogent, and indeed they include their conclusions based on the failure of the applicant to mention points in the course of his interview. I find it unnecessary to say more. For the reasons I have given, I would grant permission to appeal.

Although this is a very thorough decision, and on the article 8 issue a model of how to deal with proportionality, I too would grant permission to appeal essentially on the same grounds as my Lord. I would, however, do so for reasons which, for my part, are less tentative in relation to ground one. No doubt some of the grounds of disbelief set out by the immigration judge are perfectly tenable. But others, it seems to me, are arguably factitious -- that is to say, arguably evince a desire to disbelieve the applicant. The findings relating, for example, to the founder of his party, to the lack of detail in the initial interview about the torture he had undergone, to his ability to leave the country within two weeks of having been tortured, and relating to the absence of overt marks all seem to me arguably to fall into this category. Whether if these matters are excised enough remains to sustain the decision seems to me to be sufficiently doubtful to make it appropriate that the full court should consider the appeal.