Tsagaan v Secretary of State for the Home Department

In a removal case, the Article 3 inquiry is prospective. The question is whether substantial grounds show a real risk of torture or inhuman or degrading treatment on return, although past treatment may be relevant evidence.

Where an appellate immigration tribunal has failed to consider material country evidence, but additional relevant evidence has been admitted and live issues remain, the proper course will usually be to set aside its decision and remit the case for reconsideration. The adjudicator's decision should be restored only where it is plainly right and the tribunal's contrary decision cannot stand on all relevant material.

The appellant, a Mongolian national, claimed asylum after escaping from custody following his conviction and imprisonment in Mongolia. He alleged serious ill-treatment in police custody and prison.

An adjudicator accepted the core of his account and allowed his appeal on human-rights grounds. She held that return would expose him to treatment contrary to Article 3 of the European Convention on Human Rights. The Immigration Appeal Tribunal allowed the Secretary of State's appeal, relying on a later country report but without sufficient consideration of the 2002 United States State Department report that had been before the adjudicator.

The Secretary of State accepted that the tribunal's determination should be set aside. The issue was whether the Court of Appeal should restore the adjudicator's decision or remit the matter to a differently constituted tribunal.

1. Appeal allowed. The Immigration Appeal Tribunal's determination was set aside and the matter was remitted to a differently constituted tribunal for re-determination.

2. The Secretary of State correctly accepted that the tribunal had erred by failing to consider all the material evidence, particularly the 2002 United States State Department report. That procedural error did not establish that the adjudicator's decision should be restored.

3. The Article 3 question was whether substantial grounds showed a real risk that the appellant would be subjected to torture or inhuman or degrading treatment if returned. Past treatment was relevant, but the focus had to remain on the prospective risk. The adjudicator's conclusion had only just crossed the relevant threshold, while the later country material had not been available to her.

4. The adjudicator's approach to Article 6 was also open to question. As explained in Soering v United Kingdom, [1989] 11 EHRR 439, an extradition or removal decision may exceptionally raise an Article 6 issue where there has been, or is a risk of, a flagrant denial of a fair trial. The issue is not determined merely by the absence of a presumption of innocence under Article 6(2).

5. Under the pre-section 101 regime, the tribunal could receive additional country material. The Court could not disregard material admitted before the tribunal without objection. That power was not, however, to be used merely to prolong proceedings. A specialist tribunal should assess all relevant material and determine the outstanding issues; the Court of Appeal should not conduct that reconsideration itself.

• Court of Appeal (Civil Division) — allowed the appeal, set aside the Immigration Appeal Tribunal's determination of 29 December 2003, and remitted the matter to a differently constituted tribunal: [2004] EWCA Civ 1506.

• Immigration Appeal Tribunal — allowed the Secretary of State's appeal against the adjudicator's decision.

• Adjudicator — allowed the appellant's human-rights appeal on 14 September 2002.