Pajaziti v Secretary of State for the Home Department

An appellate tribunal cannot allow an appeal unless it identifies a material error of law in the first-instance decision. Where an adjudicator determines an asylum or Article 3 claim on conflicting expert and country evidence, merely reciting that evidence is insufficient. The adjudicator must give an analytical explanation for preferring one body of evidence, taking account of matters including the expert’s standing, the sources used and the logical cogency of the reasoning. The adjudicator should also engage expressly with relevant tribunal decisions concerning the country situation and explain any finding that the claimant falls within an exceptional continuing-risk category. Where the reasoning gives no adequate basis for a claimed individual risk, that too may constitute an arguable error of law. The proper course is remittal where such errors are properly arguable.

The Secretary of State appealed against an adjudicator’s decision allowing the respondent’s asylum, Article 3 and Article 8 appeals following refusal of further leave to remain and refusal of an asylum application. The Immigration Appeal Tribunal allowed the Secretary of State’s appeal, holding that the adjudicator had wrongly relied on expert evidence and had failed adequately to assess the country material. The respondent appealed to the Court of Appeal, contending that the Tribunal had failed to identify an error of law and that the adjudicator’s decision should stand.

The Secretary of State accepted that the Tribunal had failed to identify an error of law, in the light of CA v Secretary of State for the Home Department and Mlauzi v Secretary of State for the Home Department. The central issue was whether the adjudicator’s reasoning disclosed properly arguable material errors of law requiring remittal.

1. Appeal allowed. The Immigration Appeal Tribunal had failed to identify an error of law in the adjudicator’s determination. The Court accepted the Secretary of State’s concession on that issue.
2. The court considered whether the adjudicator’s reasoning on asylum and Article 3 disclosed an arguable material error of law. It did not finally determine whether the errors existed.
3. Where expert or country evidence is materially conflicting, an adjudicator must undertake a qualitative analysis. Reciting the evidence is insufficient. The adjudicator must explain why one body of evidence is preferred, having regard, among other matters, to the expert’s standing, the sourcing of the material and the logical cogency of the arguments.
4. It was properly arguable that the adjudicator had relied not only on the respondent’s father’s reputation and standing in the LDK/KLA, but also on his assessment of the general situation in the Presevo Valley. That assessment arguably required engagement with the relevant Immigration Appeal Tribunal decisions, including Zejnullahu v Secretary of State for the Home Department and Tahiri v Secretary of State for the Home Department, and an explanation for departing from the tenor of the country material and those decisions.
5. It was also properly arguable that the adjudicator had not given sufficient evidence or reasoning to establish a particular risk to the respondent arising from his father’s reputation and standing. These matters justified remittal to a differently constituted Immigration Appeal Tribunal. The Article 8 issue was not determined because its consideration would fall to the Tribunal on remittal.

The respondent’s appeal was remitted to the Immigration Appeal Tribunal.

• Court of Appeal (Civil Division): [2005] EWCA Civ 518 allowed the appeal and remitted the matter to a differently constituted Immigration Appeal Tribunal.
• Immigration Appeal Tribunal: allowed the Secretary of State’s appeal against the adjudicator’s determination.
• Adjudicator: allowed the respondent’s asylum, Article 3 and Article 8 appeals against the refusal of leave.