Bryan-Heaney-0005_prvOn Tuesday November 26, 2013 the Supreme Court heard the appeal in I. A. v Secretary of State for the Home Department. It is an appeal from the Inner House of the Court of Session. The justices that heard the case are Lady Hale and Lords Kerr, Wilson, Hughes and Hodge.  The case raises a very interesting public law issue of great importance. The question, in short, is whether, once a person has persuaded the the Office of the United Nations High Commission for Refugees that he should be given refugee status, UK immigration authorities can lawfully overturn that decision and refuse the refugee asylum in the UK.


Mr A fled from Iran to the Kurdistan region of Iraq. In Iraq the UNHCR decided that he should be  given “refugee status” and granted asylum in a safe third country. Time passed and no place was found for him. Mr A then went to Turkey. He made a claim to UNHCR in Turkey. Again he was found to be in need of protection. He was told that a safe third country would be found. But after more waiting, he took matters into his own hands. He found his way to the United Kingdom and claimed asylum here. The Secretary of State refused his claim. The Asylum and Immigration Tribunal refused his appeal and its decision was confirmed on review.

Mr A’s only option was to appeal to the Court of Session. The Upper Tribunal (Asylum and Immigration Chamber) refused his application for leave to appeal to the Court of Session. But he then applied directly to the Court of Session for leave. Leave was granted and the UNHCR was allowed to intervene. Mr A’s appeal was refused. It is the decision of the Inner House to refuse his appeal that is being taken to the Supreme Court.

Previous decisions

In the Inner House, Mr A contended that the tribunal had been wrong in law to go behind the UNHCR decision. He the tribunal was had failed to give the UNHCR finding the weight it was due. It had not been appropriate to reduce the weight given to the decision because the underlying material and reasons for it had not been available to it.

The Inner House said that although the approach to be taken to UNHCR finding was settled, the particular question raised in the appeal was novel. The Court said that the tribunal approached the UNHCR decisions in a perfectly appropriate way, namely by assuming that they were properly reached by a competent decision-maker with a particular expertise. Notwithstanding that, however, the tribunal found itself unable, having regard to the material before it, to reach the same conclusion. The Tribunal was not obliged to abandon its own conclusions. There was no error of law and the appeal would be dismissed.

The issue before the Supreme Court

The issue before the Supreme Court is whether it is proper for United Kingdom decision-making bodies to reject the decisions of the UNHCR in the absence of evidence that they were manifestly not properly made. There is a subsidiary question about how to best to afford weight to a UNCHR decision if the material underlying the decision is not produced. UNHCR’s policy is not to release the reasons and underlying material.

The Appellant’s submission to the Supreme Court is that the UNHCR finding is not mere evidence of what had been decided but should, for the sake of consistency and fairness, be treated as conclusive in the absence of cogent reasons for setting it aside. In other words, the UNHCR grant should create a rebuttable presumption of refugee status in the UK. Any other approach would create an undesirable immigration double jeopardy. Because the UNHCR finding is stated baldly, without a reasoned decision or the underlying material being in the public domain, there is no other way to give the conclusion the weight it is due.

In an interesting twist, the UNHCR, exceptionally, and with Mr A’s consent, has made the materials on the basis of which it decided his case available to his legal team in the Supreme Court. It had previously refused to do so. Mr A submits that the material serves to undermine the initial tribunal decision. He says that the tribunal’s decision on credibility was partly based on the fact that he had told his story for the first time in 2009 and had never stated it before. He says that the materials shows that the account he gave to the Tribunal in 2009 was the same as that he gave to UNHCR in 2002 and 2003. He seeks the leave of the Supreme Court to introduce the new material. That application is opposed by the Respondent on the basis that it does not meet the test for the introduction of fresh evidence, and, in any event, makes no material difference.

Appearing for the appellant were Jonathan Mitchell QC and Dan Byrne. Mark Lindsay QC and John MacGregor were for the respondent. Ailsa Carmichael QC and, an English barrister, Tom Hickman, appeared for the Intervener.