Mahamoud v Secretary of State for the Home Department

Appellate authorities must focus on the arguments advanced, but must address an unraised point where an obvious point of Convention law is readily discernible and has a strong prospect of success. Mere arguability is insufficient. The same safeguard applies to human-rights claims as to asylum claims, and the Secretary of State must also take such a point into account before removal. Where the evidence and case presented do not disclose a distinct, sufficiently serious risk, an adjudicator may reject an alternative claim under Articles 2 and 3 by reference to the same basic issues. The obligation does not require an adjudicator or tribunal to search for, or develop, merely arguable new points.

The appellant, a Somali national, challenged removal directions and appealed on asylum and human-rights grounds. An adjudicator dismissed the appeal, accepting at most an earlier incident connected with civil war and rejecting the appellant’s account of subsequent harassment, violence and rape. The adjudicator also found no established family life with the appellant’s brothers in the United Kingdom and concluded that removal would not be disproportionate.

The Immigration Appeal Tribunal refused permission to appeal, finding no error of law. The Court of Appeal considered whether the adjudicator and Tribunal should have investigated, of their own initiative, whether the general civil-war situation created a sufficiently serious risk under the European Convention on Human Rights.

1. Application refused. The adjudicator’s determination did not disclose an error of law, and the Immigration Appeal Tribunal was entitled to refuse permission.
2. An adjudicator or Immigration Appeal Tribunal must consider an unraised matter only where, on the material available, it is plainly discernible and has a strong prospect of success if developed. The authorities need not search for new points or prolong a hearing to invite submissions on matters that are merely arguable. The governing formulation was taken from Lord Woolf’s judgment in R v Home Secretary, ex parte Robinson [1998] QB 929.
3. The principle applies equally to human-rights claims. The Secretary of State must also bear it in mind before ordering removal where a new and obvious point arises; the final decision may be susceptible to judicial review.
4. Here, the applicant’s pleaded and evidential case concerned alleged personal attacks, which the adjudicator rejected as untruthful. The reference to civil war did not alert the adjudicator to any risk to the applicant that was out of the ordinary. The human-rights point was not the focus of the case and was barely identified before the Tribunal. It therefore did not have a strong prospect of success.
5. The adjudicator was entitled to say that the Articles 2 and 3 claim raised the same basic issues as the asylum claim. Lady Justice Arden added that, notwithstanding dismissal of the application, the Secretary of State remained obliged to ensure compliance with Article 3 until the appellant left the jurisdiction pursuant to the removal directions. The court ordered a detailed assessment of costs.

• Court of Appeal (Civil Division) [2005] EWCA Civ 370: application for permission to appeal refused.
• Immigration Appeal Tribunal: permission to appeal refused; the adjudicator’s determination disclosed no error of law.
• Adjudicator: appeal against removal directions dismissed on asylum and human-rights grounds.