Ahmed v Secretary of State for the Home Department

Where the Immigration Appeal Tribunal intervenes in an appeal from an adjudicator, it must identify the point of law giving it jurisdiction. It cannot reopen factual findings merely because it takes a different view of the evidence. Where that legal error is not properly identified, the appropriate course is remission for rehearing. In an Article 3 claim, the tribunal must assess the individual claimant’s real risk of treatment reaching the Article 3 threshold, including the effect of current evidence. Findings of credibility and relevant historical fact may be preserved on remission where fairness requires.

The appellant, an Ethiopian national, arrived in the United Kingdom aged 16 after experiences of violence, family separation and mistreatment. Her application for exceptional leave to remain, treated also as an asylum application, remained undecided for more than four years and was eventually refused, with directions for removal.

An adjudicator accepted her account and, relying in part on psychiatric evidence, allowed her Article 3 claim. The Immigration Appeal Tribunal allowed the Secretary of State’s appeal without identifying the adjudicator’s error of law. The Secretary of State conceded that the matter should be remitted for reconsideration, with the appellant’s credibility findings preserved and up-to-date evidence considered. The central issue was the proper scope of the Tribunal’s jurisdiction and the assessment of the individual risk on return.

1. Appeal allowed. The Court of Appeal approved the parties’ agreed disposal. The case was remitted to the Asylum and Immigration Tribunal for rehearing and redetermination by a different constitution.
2. The Immigration Appeal Tribunal had failed to identify the adjudicator’s error of law. The Tribunal’s jurisdiction was limited to a properly identified point of law and did not extend to reopening accepted factual findings simply because it disagreed with the adjudicator’s assessment. The guidance given in Mlauzi v Secretary of State for the Home Department was applied to the pending appeal process.
3. The appellant’s credibility and findings concerning her history up to arrival in the United Kingdom, her family and the extent of contact with them were to remain undisturbed. The new Tribunal was to reconsider the risk on return in light of any up-to-date evidence concerning women in Ethiopia, including the risks of rape and abduction.
4. The assessment was to focus on whether the individual risk to this appellant crossed the threshold under Article 3 of the European Convention on Human Rights. The existence of a general risk to women in Ethiopia was not, by itself, determinative.
5. The Court recognised the serious prejudice caused by the Secretary of State’s delay in deciding the appellant’s application, including its likely effect on her mental health and settled circumstances. That concern supported preserving the accepted findings, but did not determine the Article 3 issue. There was no order as to costs.

• Court of Appeal (Civil Division) — appeal from the Immigration Appeal Tribunal allowed. The case was remitted to the Asylum and Immigration Tribunal for rehearing and redetermination, with specified factual and credibility findings preserved.
• Immigration Appeal Tribunal — decision dated 8 July 2004 allowed the Secretary of State’s appeal against the adjudicator’s decision, but did not identify the adjudicator’s error of law.
• Adjudicator — accepted the appellant’s evidence and allowed the appellant’s Article 3 claim.