Rusiga v Secretary of State for the Home Department

An appellate tribunal limited to points of law may not substitute its own assessment of evidence for an adjudicator’s findings. A conclusion that appears surprising is not perverse merely for that reason. Intervention requires an error of law, including a conclusion that was not legally open on the evidence or a failure to give adequate reasons. An obvious mistake in an asylum claimant’s estimate of travel time does not compel rejection of the account where the adjudicator accepted the evidence overall and treated the estimate as a mistake. If no error of law is shown, the adjudicator’s decision should be restored and the Secretary of State’s lack of a further merits remedy is a consequence of section 101 of the Nationality Immigration and Asylum Act 2002.

The appellant claimed to be a Burundian national and sought asylum after alleging persecution by Tutsi soldiers. An adjudicator accepted her nationality, credibility and account of persecution, allowing her appeal on Refugee Convention and human-rights grounds.

The Immigration Appeal Tribunal allowed the Secretary of State’s appeal. It reassessed evidence concerning the appellant’s inability to speak Kirundi and her estimate of the journey time from Bujumbura to Entebbe, and treated the adjudicator’s findings as unsustainable. The central issue before the Court of Appeal was whether the adjudicator’s determination contained an error of law within the restricted jurisdiction under section 101(1) of the Nationality Immigration and Asylum Act 2002, or whether the appeal should be remitted.

The Court of Appeal unanimously allowed the appeal. Laws LJ gave the first judgment, with Sedley LJ and Auld LJ agreeing in the result. The adjudicator’s decision was restored, and the respondent was ordered to pay the appellant’s costs, subject to detailed assessment.

1. Jurisdiction of the IAT. Because the adjudicator’s determination was promulgated after 9 June 2003, section 101(1) of the Nationality Immigration and Asylum Act 2002 restricted an appeal to the Immigration Appeal Tribunal to points of law. The IAT had not identified a distinct error of law. It had improperly substituted its own evaluation of the evidence for the adjudicator’s assessment.
2. Travel evidence. The adjudicator had not found that a helicopter could travel 318 miles in 30 minutes. He had accepted the appellant’s overall evidence, including her reference to a journey lasting not many hours. The 30-minute estimate bore the hallmarks of a mistake. There was no perversity or inadequacy of reasoning, and no requirement to infer that the journey had not occurred.
3. Language and nationality. The adjudicator considered the evidence that the appellant spoke only Swahili, the geographical and social context in which Swahili was spoken, her correct answers to other nationality questions, and the objective material about Kirundi. That material was incompletely sourced and its application to the appellant was uncertain. His conclusion might be surprising, but it was legally open, adequately reasoned and could not be categorised as perverse.
4. Approach to asylum evidence. Sedley LJ additionally regarded the adjudicator’s fact-sensitive assessment as exemplifying the approach described in Karanakaran v Secretary of State [2000] IAR 271, including the need not to treat probabilities as exhaustive.
5. Disposition. There was no legitimate basis for remission. The appeal was allowed outright, notwithstanding that the merits of the restored decision might be regarded as unsatisfactory. The Secretary of State’s lack of a further merits remedy followed from the true construction of section 101.

1. Court of Appeal (Civil Division): allowed the appeal and restored the adjudicator’s decision: [2005] EWCA Civ 407.
2. Immigration Appeal Tribunal: on 18 August 2004, allowed the Secretary of State’s appeal against the adjudicator’s determination.
3. Adjudicator: determination promulgated on 8 January 2004, allowing the appellant’s appeal against dismissal of her asylum claim and refusal of leave to enter.