Tezgel v Secretary of State for the Home Department

In an asylum appeal, an appellate tribunal must address each distinct basis on which the first-instance decision allowed the claim. That includes risk on return to the claimant’s home area and the availability or reasonableness of internal relocation, even where the decision also relied on risk at the point of entry. A finding about airport risk must have an evidential basis. If the record does not permit the appellate court to determine whether the tribunal omitted a material issue, and the issue remains unresolved, the appropriate course may be to allow the appeal and remit the case for reconsideration.

The appellant, an Alevi Kurd from Turkey, claimed asylum and protection under Article 3 of the Human Rights Convention. An Adjudicator accepted his account of repeated detention and ill-treatment and allowed the claims, principally because of the risk arising from his medical condition on return through the airport, but also in terms which appeared to address persecution in his home area.

The Immigration Appeal Tribunal allowed the Secretary of State’s appeal, rejecting the airport-risk reasoning. The central issue before the Court of Appeal was whether the Tribunal had also dealt with the separate findings concerning future risk in the appellant’s home area and possible internal relocation.

1. Appeal allowed and remitted. The case was remitted to the Immigration Appeal Tribunal to consider risk of persecution, risk of treatment contrary to Article 3 of the Human Rights Convention, and the internal flight question. Detailed costs assessment was ordered.
2. The Tribunal was entitled to reject the Adjudicator’s conclusion about events at the airport. Under Subesh & Others [2004] EWCA Civ 56, a conclusion must be evidentially based; the airport-risk finding was unsupported by evidence and rested on surmise.
3. The Adjudicator’s reference to a well-founded fear of persecution for reasons of race and religion was not confined clearly to the airport. The wording, read with the accepted history of detention and ill-treatment, amounted to a distinct finding concerning the appellant’s home region.
4. The Tribunal’s failure to determine that separate issue, and to consider whether internal relocation required serious consideration, left an important question unresolved. Although the appellant bore the onus of showing that relocation would be unreasonable or unduly harsh, the appellate court could not decide whether an error of law had occurred without knowing what had been argued or conceded below. In the circumstances, anxious scrutiny and care required remission.

• Court of Appeal (Civil Division): allowed the appellant’s appeal and remitted the case to the Immigration Appeal Tribunal for consideration of future risk, Article 3 treatment and internal flight.
• Immigration Appeal Tribunal: allowed the Secretary of State’s appeal against the Adjudicator’s decision.
• Adjudicator: allowed the appellant’s asylum and Article 3 claims.