AK v Secretary of State for the Home Department

An immigration appellate tribunal may determine whether refusal of re-entry at the border of an appellant’s home country or former habitual residence would amount to persecution or treatment contrary to article 3, even where removal directions have not been set. That issue concerns the principle of removal, not an unknown route or method of return. The tribunal’s factual finding that return was possible will not be overturned for error of law merely because later country guidance, based on different and fuller evidence, reaches a different conclusion. The alleged factual error must satisfy the established requirements for an uncontentious and objectively verifiable mistake.

The appellant, a Palestinian from the Occupied Territories, appealed against the Immigration Appeal Tribunal’s dismissal of his asylum and human rights appeal. The tribunal had upheld an adjudicator’s adverse credibility findings and found that he faced neither persecution nor article 3 ill-treatment in the Occupied Territories.

The appellant did not challenge those findings. He contended instead that the tribunal erred in finding that he could return through Jordan and the Allenby Bridge. He submitted that denial of re-entry to his former habitual residence would engage refugee and human rights protections applicable to a stateless person.

The central issues were whether the tribunal had jurisdiction, despite the absence of removal directions, to consider refusal of re-entry, and whether its factual finding that return was possible involved an error of law.

1. Appeal dismissed. Richards LJ, with whom Moore-Bick LJ and Sir Mark Potter P agreed, held that the tribunal had jurisdiction to consider the alleged consequences of refusal of re-entry to the Occupied Territories.

2. Under sections 82 and 84(1)(g) of the Nationality, Immigration and Asylum Act 2002, the tribunal must consider the position that would exist in the appellant’s home country or former habitual residence if removed there. Conduct by state authorities at the border is not different in principle from conduct within the territory. A claim that border officials would refuse re-entry, and that this would amount to persecution or article 3 ill-treatment, therefore fell within the appeal.

3. GH v Secretary of State for the Home Department [2005] EWCA Civ 1182 did not preclude that conclusion. GH concerned risks arising from an unknown route or method of return. The alleged refusal of re-entry did not depend on any particular route or method and was said to arise whichever means of removal was selected.

4. The tribunal had nevertheless made no error of law in finding return possible. It had considered the United States report concerning three Palestinians denied entry. That material did not establish a general refusal of re-entry or establish that this appellant would be refused. The later country-guidance decision in AB, IM & ZX was based on different and substantially fuller evidence. It could not demonstrate an uncontentious and objectively verifiable factual mistake within the principles in E v Secretary of State for the Home Department [2004] EWCA Civ 49.

5. The remaining arguments were unnecessary to the result. The court expressed serious doubt about the proposed analogy between exclusion of a citizen and exclusion of a stateless person, and declined to entertain arguments about third-category rights that had not been raised below and were not obvious in the Robinson sense. The separate argument based on the 1954 Statelessness Convention and section 84(1)(e) had likewise not been advanced before the tribunal.

• Court of Appeal (Civil Division): Dismissed the appeal in [2006] EWCA Civ 1117.

• Immigration Appeal Tribunal: Upheld the adjudicator’s assessment and dismissed the appellant’s asylum and human rights appeal in a determination notified on 22 September 2004.

• Adjudicator: Dismissed the appeal against the refusal of asylum and human rights protection.