B v Secretary of State for the Home Department

An appeal to the Immigration Appeal Tribunal under section 101 of the Nationality, Immigration and Asylum Act 2002 is confined to a point of law. Permission does not authorise the Tribunal to reconsider findings of fact.

A returnee’s individual vulnerability, youth and likely homelessness may materially affect whether a general risk of rape becomes a real personal risk engaging article 3. The decision-maker must assess that risk separately from any risk of psychiatric deterioration and must make clear findings about the likelihood of destitution and homelessness. An article 8 determination also requires the balancing exercise prescribed by article 8(2).

B, a young citizen of the Democratic Republic of Congo, had suffered repeated rape and developed severe post-traumatic stress disorder. An adjudicator allowed her asylum and human rights appeal, finding that return would expose her to psychiatric deterioration and a risk of rape.

The Immigration Appeal Tribunal allowed the Secretary of State’s appeal on 2 June 2004. Its decision largely reassessed the facts without clearly identifying an error of law. B appealed under section 103 of the Nationality, Immigration and Asylum Act 2002.

The Court of Appeal considered whether the adjudicator’s determinations disclosed errors of law and whether any part of the human rights decision could stand without reconsideration.

1. Appeal allowed and human rights claim remitted. The Immigration Appeal Tribunal’s decision could not stand. B’s human rights appeal was remitted for a fresh hearing before a different adjudicator.

2. Section 101(1) of the Nationality, Immigration and Asylum Act 2002 confined an appeal from an adjudicator to a point of law. The grant of permission did not permit the Tribunal to review the adjudicator’s factual conclusions. Grounds of appeal form the agenda for permission and the appeal itself. They must therefore identify the alleged errors of law clearly, particularly where the Secretary of State is the appellant.

3. The adjudicator had plainly erred in allowing the Refugee Convention claim. A risk of psychiatric injury did not establish persecution for a Convention reason. A risk of rape did not do so unless a state agency was implicated. The adjudicator had not explained how either risk engaged the Refugee Convention.

4. The human rights reasoning was also legally inadequate. The adjudicator had combined the risk of psychiatric deterioration with the risk of rape without separately assessing the nature, severity and likelihood of either risk. His findings did not permit the conclusion under article 3 to be evaluated.

5. The general risk of rape faced by women in the Democratic Republic of Congo did not alone establish a real risk to every woman. That did not dispose of B’s individual case. Her psychiatric vulnerability, youth and threatened homelessness could support a specific personal risk. The likelihood that she would become destitute and homeless was vital to that assessment, but the adjudicator had made no adequate finding about it. The court was not prepared to hold that a properly established risk of rape was incapable in law of engaging article 3.

6. The adjudicator had not identified a basis for finding an infringement of article 2. His article 8 determination was deficient because he omitted the essential balancing exercise under article 8(2).

7. As the human rights claim required proper consideration of the evidence and clear factual findings, the appropriate course under section 102(1)(c) of the 2002 Act was remission to another adjudicator rather than reconsideration by the Tribunal. There was no order as to costs.

1. Court of Appeal (Civil Division): Allowed B’s appeal in [2005] EWCA Civ 61 and remitted her human rights appeal for a fresh hearing before a different adjudicator.
2. Immigration Appeal Tribunal: On 2 June 2004, allowed the Secretary of State’s appeal from the adjudicator, but failed adequately to identify an error of law and largely reassessed the facts.
3. Adjudicator: On 10 June 2003, allowed B’s appeal on asylum and human rights grounds, holding that return to the Democratic Republic of Congo would breach the Refugee Convention and articles 2, 3 and 8 of the European Convention on Human Rights.