INNER HOUSE, COURT OF SESSION
	[2014] CSIH 17
Lord Menzies	XA33/13 OPINION OF LORD MENZIES in the application for leave to appeal a decision of the Upper Tribunal by HA Appellant; against SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent _______________

Act: Caskie; Drummond Miller LLP

Alt: Webster; Office of the Advocate General

17 December 2013

[1] The appellant is a national of Iraq. He arrived in the United Kingdom in 2008 when he was a child and sought leave to remain granted to him by the Secretary of State.

[2] Thereafter he sought an extension of his leave to remain, that application having been made on 25 September 2009. The Secretary of State determined that application on 3 February 2012 by refusing it and the appellant appealed to the First‑tier Tribunal Immigration and Asylum Chamber against that decision. By decision letter dated 10 April 2012 the judge of the First‑tier Tribunal dismissed the appeal on humanitarian protection and human rights grounds. The appellant appealed to the Upper Tribunal and the Upper Tribunal by determination dated 19 October and sent on 25 October 2012 refused that appeal and an application for leave to appeal to this court was refused by the Upper Tribunal.

[3] The appellant subsequently made an application to this court for permission to appeal. That application was initially before the court on 16 July 2013 on which date counsel for the appellant sought that the matter should be continued to enable the decision of the Court of Appeal in England and Wales to be issued in the case of HM and others (Article 15(c)) Iraq CG (2012) UKUT 00409 (IAC) (which case has subsequently been referred to as "HM 2") to be issued. The court acceded to that request for a continuation and there was a subsequent request for a further continuation because the decision in HM 2 had not been issued, which was also granted.

[4] The decision in HM 2 has now been issued, under the name HF (Iraq) and others v The Secretary of State for the Home Department [2013] EWCA Civ 1276. The result of the determination of that appeal is contrary to part of the submissions which had been the subject of this application and Mr Caskie confirmed to the court today that he no longer sought to argue that HM 2 was wrongly decided and departed from that part of this application.

[5] There remain the grounds of appeal which were relied on in the application for permission to appeal to this court which were made to the Upper Tribunal. The grounds in that application were threefold but Mr Caskie for the appellant confirmed that he only sought to rely now on the first of those grounds which is contained in ground 1 (i) of that application. He submitted that there had been an error of law on the part of the First‑tier Tribunal judge which was not corrected by the Upper‑Tier Tribunal. The error of law consisted in the First‑tier Tribunal applying the wrong test in paragraphs 27 and 28 of its decision letter of 10 April 2012, where the immigration judge, having referred to the case of Elgafaji, (C-465/07), and said that that indicated that an individual did not need to be specifically targeted to invoke article 15(c) it would be enough if the general violence was at a sufficiently high level, however this level has to be exceptional.

[6] Mr Caskie submitted that the First‑tier Tribunal judge fell into an error of law in categorising the level required as exceptional. The Upper Tribunal judge observed that the last sentence of paragraph 27 of the First‑tier Tribunal decision was unfortunate. The Upper Tribunal judge went on to observe that the First‑tier judge was entitled to conclude that the required level of violence was not established. Reading paragraphs 27 and 28, together and in the context of the case law, evidence and submissions it does not appear, despite his slip, that the judge had a wrong idea of what had to be shown or might have reached another conclusion had he set out the test more fully and directly.

[7] I share the view of the Upper Tribunal judge that the use of the word "exceptional" in paragraph 27 is indeed unfortunate. However, it does appear to me that in paragraph 28 by his reference to the case of KH and in particular paragraph 208 of that case, the First‑tier judge has indeed applied the correct test and has not applied a test of exceptionality. Paragraph 208 of Elgafaji is quoted at paragraph 28 of the Upper Tribunal decision, and if one reads what is said in that case it is clear that the test is not an exceptional test. It is clear, in my view, on a proper interpretation of paragraphs 27 and 28 that the immigration judge did have the correct test in mind as he says "however as there is a certain level of violence in the appellant's own area".

[8] Accordingly I am not persuaded that there was an error of law in the immigration judge's approach to this matter. If I am wrong in that in any event it does not appear to me that any such error of law was material. The Upper Tribunal judge considered this matter and at paragraph 33 of the Upper Tribunal decision observed

"if it were necessary to decide the case again I would hold that the materials do not lead to a finding that there is a level of violence throughout Iraq requiring a person with no personal risk factors such as the appellant to be granted humanitarian protection."

[9] It was submitted on behalf of the appellant by Mr Caskie that the materiality of the error fell to be assessed at the time of an appeal being considered and that the mechanics of that would involve this court, on considering an appeal, remitting it to the Upper Tribunal to enable the Upper Tribunal to assess the materiality of the error in light of the factual circumstances which currently exist in Iraq so far as those factual circumstances are known. Contrary to that submission Mr Webster for the respondent submitted that the materiality required to be assessed (at the latest) when the matter came before the Upper Tribunal, and that it was not legitimate to rely on factual matters which postdate the Upper Tribunal's decision in order to reduce that decision. If the Upper Tribunal had formed a different view of the alleged error in paragraph 27 of the First‑tier decision it would have gone on to consider materiality and would have held that such an error was not material. This much is apparent from the Upper Tribunal's decision, particularly at paragraphs 30 and 33.

[10] I am not persuaded that it is appropriate for an appellate court to assess the materiality of an error of law having regard to changes in circumstances which postdate the Upper Tribunal's decision. Indeed I question whether it is appropriate for an appellate court to consider changes of circumstances since the First‑tier Tribunal decision; in any event it is in my view correct for Mr Webster to submit that this court cannot rely on factual matters which postdate the Upper Tribunal's decision.

[11] Accordingly the application fails both with regard to whether there was an error of law and on the question of materiality of that error and I refuse the application.