Secretary of State for the Home Department v Haile

An appellate immigration tribunal may prefer one body of objective country evidence to another. However, where it overturns a fully reasoned adjudicator's decision and effectively adopts a different approach, it should explain how it has dealt with material personal factors that informed the adjudicator's assessment. Those factors may include family activities, continuing political support and the circumstances of the claimant's escape. A failure to address such matters may make an appeal arguable and justify permission to appeal, even though the tribunal was entitled to prefer the evidence on which it relied.

The applicant, an Eritrean citizen, claimed asylum after his father, an ELF member, was killed during a security-force raid on the family home. He said that he had assisted the ELF, had been detained and beaten, and had escaped to Sudan before travelling to the United Kingdom.

An adjudicator allowed his appeal against refusal of asylum on 1 November 2002. On 15 October 2003, the Immigration Appeal Tribunal allowed the Secretary of State's appeal. It accepted the applicant's account but concluded, relying on country material, that his low-level ELF involvement created no real risk on return. The central issue was whether the Tribunal had adequately addressed the personal factors relied on by the adjudicator.

1. Permission granted. On the renewed application, Laws LJ granted permission to appeal on a narrow basis and ordered that the appeal be heard by a three-judge court, one member of which could be a High Court judge.
2. The court accepted that the Immigration Appeal Tribunal was entitled to prefer the Secretary of State's objective in-country material to the more general evidence advanced for the applicant. There was no issue about credibility, and the risk-on-return question depended substantially on the assessment of the country evidence.
3. Nevertheless, the evidence relied on by the Tribunal might have had an impact independent of the applicant's particular circumstances. The adjudicator's fully reasoned determination had taken account of matters including the activities of the applicant's family members, his continuing support for the ELF after leaving Eritrea, and the means by which he escaped.
4. It was therefore arguable that, in overturning the adjudicator and effectively concluding that a different approach was required, the Tribunal should have explained what it made of those personal factors. The court referred to Subesh [2004] EWCA Civ 56 in support of that approach.
5. The order was limited to permission to appeal. The Court of Appeal did not finally determine whether the applicant would face a real risk on return or whether he was entitled to asylum.

• Court of Appeal (Civil Division): Permission had been refused by Keene LJ on consideration of the papers on 18 May 2004. On renewal, Laws LJ granted permission on the narrow issue identified in the judgment.
• High Court Immigration Appeal Tribunal: On 15 October 2003, allowed the Secretary of State's appeal against the adjudicator's determination.
• Adjudicator: On 1 November 2002, allowed the applicant's appeal against the refusal of asylum.