Adam v Secretary of State for the Home Department

In an Article 3 asylum appeal, the tribunal must assess the real risk of ill-treatment on the evidence as a whole. It must consider whether the appellant is likely to be identified, detained and exposed to the relevant conditions on return. A statutory penalty and evidence of harsh prison conditions may establish an arguable real risk unless the respondent supplies evidence showing that the penalty is not in practice enforced. The assessment must also account for characteristics that may place the individual at greater risk than the general class of returnees. Where the tribunal’s findings are unsafe, the appellate court should ordinarily remit the case if it lacks sufficient evidence to determine the Article 3 issue itself.

The appellant, a Sudanese national from the Nuba region, had entered the United Kingdom clandestinely and claimed asylum after leaving Sudan to avoid military service. An adjudicator dismissed his appeal against refusal of asylum. The Immigration Appeal Tribunal held that the adjudicator had approached the task incorrectly, but dismissed both the Refugee Convention claim and the claim under section 65 of the Immigration and Asylum Act 1999, including the contention that removal would breach Article 3 of the Human Rights Convention.

The appellant appealed. The central issue was whether the Tribunal had properly assessed the real risk that he would be identified as a military-service evader, imprisoned and subjected to inhuman or degrading treatment in Sudan.

1. Appeal allowed and case remitted. The Court allowed the appeal, set aside the Immigration Appeal Tribunal’s determination and remitted the case to a differently constituted Tribunal. It declined to declare that removal would itself breach Article 3 because the evidence before the Court was insufficient to determine that question.
2. The Tribunal had correctly identified the Article 3 question as whether there was a real risk that the appellant would be apprehended on return, imprisoned in Sudan and subjected to inhuman or degrading treatment. It was nevertheless not entitled, on the material before it, to conclude that he would not be identified at Khartoum airport. His age, absence of the certificate recording completed military service and return from abroad were relevant matters.
3. The Tribunal was also not entitled to conclude that there was no real risk of imprisonment. The Country Assessment stated that refusal to perform military service carried a fine and up to three years’ imprisonment. Where the respondent relied on non-enforcement of a statutory penalty, the relevant evidence should be produced in advance. It was unfair and unrealistic to require the appellant to do more than point to the law in the circumstances.
4. The evidence required consideration of the appellant’s individual characteristics. The Tribunal showed no sign of appreciating that a black Nuban, described in the Country Assessment as belonging to a persecuted minority and a legitimate military target, might face a greater risk of inhuman treatment than an ordinary Arab deserter.
5. The Court refused to admit expert evidence which could have been produced before the Tribunal. Where the Tribunal’s findings are unsafe but the appellate court lacks sufficient material to determine the substantive Article 3 issue, the proper course is to set aside the decision and remit the case.

• Court of Appeal (Civil Division): [2003] EWCA Civ 265. Appeal allowed; the Immigration Appeal Tribunal’s decision was set aside and the matter remitted to a different constitution.
• Immigration Appeal Tribunal: [2002] UKIAT 02099. The Tribunal dismissed the Refugee Convention and Article 3 claims after reconsidering the adjudicator’s determination.
• Adjudicator: Dismissed the appellant’s appeal against refusal of asylum.