HC v Secretary of State for the Home Department

On an appeal confined to points of law, the Immigration Appeal Tribunal must determine the legal errors advanced against the adjudicator’s decision. It cannot conduct a fresh merits assessment on later evidence. Unless the legal point determines the case on the facts already found, it must remit the matter.

A point of law includes the ordinary public-law grounds of challenge. An adjudicator errs in law by treating harm by private individuals as incapable of amounting to Convention persecution, or by failing to consider material evidence bearing on safe and reasonable internal relocation. Relocation must be assessed by considering the cumulative effect of the applicant’s relevant characteristics and practical circumstances.

The appellant, a Palestinian refugee from Lebanon who was homosexual and Muslim, claimed asylum after threats and violence connected with his sexuality in a refugee camp. An adjudicator dismissed his asylum and human-rights appeal on 23 July 2003.

The Immigration Appeal Tribunal rejected his appeal after hearing further evidence and undertaking its own assessment of the merits. The appellant appealed to the Court of Appeal. The central issues were whether the Tribunal had exceeded its statutory jurisdiction and whether the adjudicator had erred in her treatment of non-state persecution and internal relocation evidence.

1. Appeal allowed. Keene LJ, with whom Scott Baker LJ and the President agreed, held that the Immigration Appeal Tribunal had misunderstood its role under Nationality Immigration and Asylum Act 2002, section 101(1). Its jurisdiction was confined to points of law. It had wrongly heard evidence and conducted a fresh merits assessment rather than determining the legal challenges to the adjudicator’s decision.
2. The Court followed [2005] EWCA Civ 481. An error of law may include the established public-law grounds, including irrationality, procedural irregularity and, in some circumstances, material factual error. If an adjudicator’s legal error does not itself determine the appeal on the facts already found, the Tribunal must remit rather than decide the merits afresh.
3. The adjudicator’s statement that ill-treatment by individuals could not constitute persecution under the Refugee Convention was, on its face, legally wrong. Persecution may be inflicted by non-state agents where the state is unwilling or unable to afford protection: R v Secretary of State for the Home Department, ex parte Adan, [2001] 2 AC 477. Protection need not eliminate every violent attack, but an applicant may still have a well-founded fear where the authorities know or ought to know of particular circumstances and are unlikely to provide the protection reasonably required.
4. The adjudicator also failed to consider the material evidence on relocation cumulatively. The practical effects of the appellant being both a Palestinian refugee and homosexual, including housing, work, mobility, safety and the conditions in Muslim areas, required combined assessment. A short temporary stay in Beirut and theoretical freedom to move did not rationally answer that evidence.
5. The Tribunal’s decision could not stand. The appeal was remitted to the new Asylum and Immigration Tribunal for a fresh decision on the appellant’s appeal.

• Court of Appeal (Civil Division) — allowed the appeal and remitted the matter for a fresh decision: [2005] EWCA Civ 893.
• Immigration Appeal Tribunal — rejected the appellant’s appeal, but wrongly conducted a fresh merits assessment.
• Adjudicator — dismissed the appellant’s asylum and human-rights appeal by a determination dated 23 July 2003.