A v Secretary of State for the Home Department

In a removal case under Article 3 of the European Convention on Human Rights, the question is whether return creates a real risk of prohibited ill-treatment; complete certainty is unnecessary. An appellate court should respect an Immigration Appeal Tribunal’s assessment where it falls within the range of conclusions reasonably open on the evidence. A judgment about the degree of risk is not, without more, an error of fact amounting to an error of law. Fresh evidence on an appeal from the Tribunal is generally subject to the Ladd v Marshall criteria, with departure reserved for exceptional circumstances in the interests of justice. Evidence that could have been obtained earlier, and which would probably not affect the result, should be excluded.

A Libyan national with long residence in the United Kingdom, British family ties and a previous asylum claim allowed on return-risk grounds faced deportation after serious criminal convictions. An adjudicator found no real risk under Articles 2 and 3 of the European Convention on Human Rights. The Immigration Appeal Tribunal dismissed his appeal on 21 March 2003, relying on the evidence and a high-level assurance from the Libyan authorities.

Before the Court of Appeal, he challenged the risk assessment as perverse and as an error of fact amounting to an error of law. He also sought to adduce expert and statistical evidence. The central questions were whether the fresh evidence should be admitted and whether the Tribunal’s conclusion on Article 3 risk was legally unsustainable.

Appeal dismissed. Keene LJ delivered the substantive judgment, with Wall LJ and Kay LJ agreeing. The order was for dismissal with costs, not to be enforced without further order.

1. In asylum and similar Article 3 cases, fresh evidence on an appeal from the Immigration Appeal Tribunal is generally governed by the principles in E and R v Secretary of State for the Home Department [2004] EWCA Civ 49 and Ladd v Marshall [1954] 1 WLR 1489. The evidence must not reasonably have been obtainable with due diligence, must probably have had an important influence on the result, and must be apparently credible. Departure is possible only in exceptional circumstances where the interests of justice require it.
2. The expert report and statistical evidence failed those requirements. The report could have been obtained before the Tribunal hearing, and the omission by the appellant’s legal advisers was not generally an excuse, applying Al-Mehdawi v The Home Secretary [1990] 1 AC 876. The evidence was also unlikely to affect the result because it concerned monitoring of students, whereas the appellant had ceased to be a student in 1984. No exceptional circumstances justified departure from the usual test.
3. The original burden argument was unsustainable. Arif [1999] Imm IAR 271 concerned an evidential burden on the Secretary of State where refugee status had previously been granted, and that burden had been discharged by the Tribunal’s assessment of the evidence.
4. The relevant Article 3 question was whether return created a real risk of prohibited ill-treatment, not whether complete safety could be guaranteed. The Tribunal was entitled to give considerable weight to the high-level assurance obtained from the Libyan authorities. Its treatment of the arguments concerning press reports, delayed deportation and the public availability of its determination was lawful and rational.
5. The Tribunal’s conclusion fell within the range of permissible conclusions open to a reasonable decision-maker. The assessment of the degree of risk did not amount to an error of fact capable of constituting an error of law.

1. Court of Appeal (Civil Division) dismissed the appeal against the Immigration Appeal Tribunal’s decision: [2004] EWCA Civ 255.
2. Immigration Appeal Tribunal, presided over by Ouseley J, dismissed the appeal on 21 March 2003 against the adjudicator’s decision.
3. Adjudicator dismissed the appeal against the deportation decision, finding no real risk of treatment contrary to Articles 2 or 3 of the European Convention on Human Rights.