K v Secretary of State for the Home Department

A generalised claim that every national of a country faces Article 3 ill-treatment is legally possible, but it requires strong and clear evidence. An appellate immigration tribunal may decline to consider an alternative basis for protection that was not cross-appealed unless the point is so obvious that it must be taken. Finding an error of law does not automatically require remission. Where credibility and historical findings remain undisturbed, the tribunal may determine the remaining risk issue itself, provided it addresses the evidence and does not simply leave a void. A prior tribunal decision on the same country conditions should ordinarily be followed unless there is a reason to depart. Here, the evidence did not establish a generalised risk in Burundi, and permission to appeal was refused.

An applicant from Burundi claimed asylum and human rights protection. The adjudicator rejected his account of persecution and escape but allowed his human rights appeal on the basis that he would eventually suffer violence as a member of a crowd, treating that as a breach of Article 3. The Home Office appealed. The AIT found a material error of law, held that the evidence did not support a generalised Article 3 risk, and declined to remit. Before the Court of Appeal, the applicant relied on mixed ethnicity, which had not been cross-appealed, and argued that the AIT should have ordered a rehearing or made a fuller assessment of the evidence. The central issues concerned the scope of the AIT’s appellate duty and the appropriate response to the error of law.

Application refused. Lord Justice Sedley held that the AIT had made no error of law in disposing of the issue before it and declining a rehearing.

1. A generalised Article 3 situation affecting every Burundian was not legally impossible, but it required strong and clear evidence. The AIT was entitled to rely on N (Burundi) [2003] UKIAT 00065, which held that the poor conditions affecting Burundi’s population generally did not cross the Article 3 threshold. It was entitled to conclude that the evidence could not sustain a generalised claim.
2. The applicant’s mixed ethnicity had been raised before the adjudicator and left unaddressed, but it was not advanced by cross-appeal or respondent’s notice. Given the equivocal evidence, it was not an issue of such obviousness that the AIT had to take it up of its own motion.
3. Remission after an error of law is discretionary, not automatic. Finality was a relevant public interest. The AIT was entitled to treat the adjudicator’s undisturbed findings on veracity and history as final, and to decide whether those findings left a real risk on return.
4. An appellate tribunal cannot simply leave a void after finding an error of law. It must address whether the existing findings and evidence justify the outcome. The AIT did so: its conclusion that the appeal should have been dismissed amounted to a finding that there was no sufficient basis for a generalised risk to all Burundians. The application for permission to appeal was therefore refused.

• Court of Appeal (Civil Division): refused the application for permission to appeal.
• Asylum & Immigration Tribunal: found a material error of law in the adjudicator’s decision, concluded that the appeal should have been dismissed, and declined to remit for a rehearing.
• Adjudicator: dismissed the asylum claim but allowed the human rights claim under Article 3 on the basis of a generalised risk of violence.