Saliu v Secretary of State for the Home Department

An appellate tribunal must consider important new evidence placed before it, particularly evidence capable of materially affecting the assessment of risk. Where the tribunal evaluates risk on an erroneous factual basis, its decision is not saved merely because the same conclusion might have been reached on the correct facts. The proper course is to quash the decision and remit the matter for reconsideration.

The appellant, an asylum seeker from Kosovo, appealed against an Immigration Appeal Tribunal decision dismissing his claim. He feared serious harm from KLA remnants because his father was regarded as a deserter and threats had allegedly been made against the appellant and his family.

The Tribunal accepted that the appellant faced some risk but treated it as low and concluded that effective protection was available in Decan. New material included a press report and a letter from the appellant’s father containing threats against the family. The central issue was whether the Tribunal had properly considered that material and correctly evaluated the resulting risk.

1. Appeal allowed. The Court quashed the Immigration Appeal Tribunal’s decision and remitted the matter to a differently constituted panel.
2. The father’s letter was important evidence which the Tribunal had to consider. Although the Tribunal did not expressly refer to it, its later explanation did not demonstrate that the evidence had been properly understood or evaluated.
3. The letter contained threats against the father and his family. The natural construction was that the threats extended to the appellant, who was a member of that family. The Tribunal therefore proceeded on the erroneous assumption that there was no evidence that the threats had been extended to the son.
4. That error was material. The Tribunal had attached importance to the supposed absence of threats against the appellant, and recognition that the threats extended to him might have led it to assess the level of risk differently.
5. An evaluation made on an erroneous factual basis is not preserved merely because the same conclusion might have been open to the Tribunal on a correct basis. The decision was accordingly quashed and the matter remitted. The respondent was ordered to pay the appellant’s costs of the appeal, subject to standard assessment if not agreed.

• Court of Appeal (Civil Division): allowed the appeal from the Immigration Appeal Tribunal, quashed its decision and remitted the matter to a differently constituted panel.
• Immigration Appeal Tribunal: dismissed the appellant’s appeal from the adjudicator, while criticising the adjudicator’s determination.