CA v Secretary of State for the Home Department

Under Nationality, Immigration and Asylum Act 2002, the Immigration Appeal Tribunal may entertain an appeal only on a point of law. Permission to appeal does not permit it to reconsider the merits on updated evidence. It must first identify a material error of law in the adjudicator’s determination.

On an allegation of perversity, the Tribunal must assess whether the determination was legally open on the evidence before the adjudicator. It cannot rely on later evidence to convert a merits disagreement into legal error. An exceptional Article 3 case may arise where removal exposes a mother to the grave suffering of witnessing a substantial, preventable risk of serious illness to her newborn child.

A Ghanaian national appealed against the Immigration Appeal Tribunal’s decision allowing the Secretary of State’s appeal. The Adjudicator had dismissed her asylum claim but allowed her human-rights appeal under Article 3. The Adjudicator found that removal shortly before or after the birth of her second child would create a substantial risk that the newborn child would contract HIV or suffer illness through inadequate post-natal care in Ghana.

The Tribunal treated that conclusion as perverse and relied in part on evidence available by the time of its own hearing, after the child had been born free of HIV. The central issue was whether, under the new statutory regime, the Tribunal had identified a material error of law that entitled it to set aside the Adjudicator’s determination.

Appeal allowed unanimously. The Court set aside the Immigration Appeal Tribunal’s order and restored the Adjudicator’s decision.

1. Section 101 of the Nationality, Immigration and Asylum Act 2002 confines an appeal to the Tribunal to a point of law. The grant of permission is only a gateway to determining whether the Adjudicator made such an error. It is not authority for the Tribunal to conduct a fresh merits appeal using current evidence. Laws LJ gave the principal judgment; Sir Martin Nourse agreed, and Mummery LJ expressly endorsed this conclusion.

2. Once a material legal error is established, section 102 permits the Tribunal to decide the appropriate relief in light of facts existing at that later stage. That consequential power does not dispense with the prior requirement for a material error of law.

3. The Tribunal had treated the Adjudicator’s conclusion as perverse. That was wrong. A finding of perversity had to be assessed by reference to the evidence before the Adjudicator. The Tribunal could not use subsequent evidence concerning the child’s health to show that the earlier factual assessment was irrational. The medical evidence was capable of supporting the Adjudicator’s conclusion.

4. The fact that a foetus has no independent right to life did not answer the Article 3 issue. The relevant question was whether the mother would suffer inhuman or degrading treatment through witnessing her newborn child’s serious and preventable deterioration. On the exceptional facts found, that approach was legally open. The Court accepted the stringent approach in N [2003] EWCA Civ 1369, but held that it did not show legal error in this fact-sensitive determination. The decision created no precedent for future cases.

• Court of Appeal (Civil Division) — allowed the appellant’s appeal, set aside the Immigration Appeal Tribunal’s order, and restored the Adjudicator’s decision: [2004] EWCA Civ 1165.
• Immigration Appeal Tribunal — allowed the Secretary of State’s appeal, holding that the Adjudicator’s Article 3 determination was perverse.
• Adjudicator — allowed the appellant’s human-rights appeal under Article 3 of the European Convention on Human Rights, while dismissing her asylum claim.