El Rifai v Secretary of State for the Home Department

On an appeal confined to a point of law, an adjudicator must give proper reasons and engage with material evidence bearing on a reasonably arguable issue. Evidence that detainees may face torture or serious ill-treatment on detention can be relevant to an asylum claimant’s risk on return, even where reports refer principally to security forces and the claimant’s account emphasises another authority. An omission to address the issue may amount to an error of law. The matter should then be remitted for reconsideration without expressing a view on the ultimate outcome.

The appellant, a Palestinian of Lebanese origin, appealed against the refusal of his asylum claim. An adjudicator dismissed the appeal on 27 August 2003. The Immigration Appeal Tribunal dismissed his statutory appeal on 3 June 2004. The Court of Appeal considered whether the adjudicator and Tribunal had erred in law by failing to address objective evidence concerning torture and ill-treatment by Lebanese authorities, and whether the issue had properly been raised in the appellant’s case.

Lord Justice Laws delivered the leading judgment, with which Lord Justice Kennedy agreed.

1. Scope of the statutory appeal. Because the adjudicator’s determination post-dated 9 June 2003, the appeal to the Immigration Appeal Tribunal was limited by section 101 (1) of the Nationality Immigration and Asylum Act 2002 to a point of law. Alleged factual mistakes and the failure to place new evidence before the Tribunal were therefore immaterial unless they disclosed an error of law.
2. Duty to address material evidence. An adjudicator has an undoubted duty to give proper reasons. Where evidence raises a reasonably plain and material issue concerning the risk of persecution or treatment contrary to Article 3 of the European Convention on Human Rights, the adjudicator must address it.
3. Application to the evidence. Reports from the US State Department, the CIPU and Amnesty International contained evidence of torture and ill-treatment of detainees. It was not clear that this evidence was confined to the narrow category of security-force conduct suggested by the respondent. The appellant’s case, as advanced before the adjudicator, concerned possible detention on return by Lebanese authorities. His evidence also described the relationship between the Lebanese and Syrian authorities. These matters made the torture issue reasonably and plainly relevant. The adjudicator’s failure to address it was an error of law. The Tribunal’s brief reasoning did not cure that failure.
4. Order. The appeal was allowed on that narrow basis and the matter was remitted to the Immigration Appeal Tribunal for rehearing. The Court expressed no view on the eventual outcome.

• Court of Appeal (Civil Division): In [2005] EWCA Civ 385, the appeal was allowed and the matter remitted to the Immigration Appeal Tribunal for rehearing.
• Immigration Appeal Tribunal: The appellant’s appeal was dismissed on 3 June 2004.
• Adjudicator: The appellant’s appeal against refusal of his asylum claim was dismissed in a determination promulgated on 27 August 2003.