Arsanova v Secretary of State for the Home Department

Where internal flight or relocation is materially raised in an asylum or human-rights protection claim, and is a critical issue, the decision-maker must address it specifically. The issue need not be considered at length, but the claimant’s relevant contentions must be faced and answered. A complete failure by the Immigration Appeal Tribunal to deal with the issue is an error of law and supports an appeal under rule 26 of the Immigration and Asylum Procedure Rules 2000. The merits of relocation remain for the tribunal on rehearing.

The appellant, an ethnic Russian from Chechnya, claimed protection after the death of her ethnic Chechen husband and relied on fears arising from his family, the Arsanov clan and her surname. The Secretary of State considered that she could relocate elsewhere in Russia. A special adjudicator dismissed her appeal, and the Immigration Appeal Tribunal dismissed her further appeal on 31 October 2002.

The Immigration Appeal Tribunal considered that internal flight was irrelevant because the claim had failed on other grounds. The central issue before the Court of Appeal was whether the Tribunal had erred in law by failing to determine whether relocation within Russia was a viable solution.

The Court of Appeal unanimously allowed the appeal and remitted the case to the Immigration Appeal Tribunal for a rehearing.

1. Internal relocation was a material issue. The question had been raised before the Secretary of State, considered before the special adjudicator, and made the subject of permission to appeal to the Immigration Appeal Tribunal. It was therefore a critical issue requiring determination.
2. The issue could not be ignored. The Immigration Appeal Tribunal was wrong to treat internal flight as completely irrelevant merely because the appellant’s underlying account had been rejected. The Tribunal was required to address relocation as a specific ground, confront the appellant’s contentions, and answer them. Extensive reasoning was unnecessary, but wholly ignoring the issue was impermissible.
3. Error of law and remittal. The omission involved a question of law and accordingly fell within rule 26 of the Immigration and Asylum Procedure Rules 2000. The Court did not determine whether relocation would be safe, viable or unduly harsh. Those matters were remitted for reconsideration.
4. Expert evidence. It was unnecessary to decide the separate challenge to the rejection of Mr Chenciner’s expert report. The criticism of that evidence, including the alleged misunderstanding of the solicitors’ letter, was left for determination at the rehearing on the evidence then available.

Order: appeal allowed; case remitted to the Immigration Appeal Tribunal for rehearing. Public funding certificate granted.

• Court of Appeal (Civil Division): [2003] EWCA Civ 1118 allowed the appeal and remitted the case to the Immigration Appeal Tribunal for rehearing.
• Immigration Appeal Tribunal: determination dated 31 October 2002 dismissed the appellant’s appeal and refused permission to appeal to the Court of Appeal.
• Special adjudicator: decision promulgated on 11 March 2002 dismissed the appellant’s appeal against the Secretary of State’s refusal of protection.
• Secretary of State for the Home Department: refusal decision dated 14 May 2001 rejected the protection claim, including on the basis that the appellant could relocate elsewhere in Russia.