E v Secretary of State for the Home Office

An asylum tribunal assessing risk on return must make a genuinely prospective assessment. It must consider the risk if the claimant returns and continues activities of the kind previously undertaken, in the light of accepted past detention or ill-treatment. The tribunal must also make a reasoned appraisal of relevant country information and reach its own conclusions, taking account of any applicable country guidance. A failure to ask the correct prospective question, or to evaluate country evidence in that context, may constitute a material error of law where the outcome might have been different. The appropriate remedy is ordinarily remittal for redetermination on the existing factual findings and up-to-date evidence.

The appellant, a Sudanese national, appealed against an immigration judge’s dismissal of his asylum and human-rights claims. The case had previously been remitted twice. The immigration judge accepted that the appellant had been detained and mistreated in Sudan because of his involvement with the Democratic Unionist Party, and accepted his continuing low-level political activity in the United Kingdom, but found no risk on return.

The appeal alleged that the judge failed to assess the effect of the appellant’s father’s political activities and failed to assess the prospective risk if the appellant returned and continued similar activities. The central issue was whether those failures amounted to a material error of law.

Appeal allowed and remitted to the Asylum and Immigration Appeal Tribunal. Scott Baker LJ gave the judgment. Neuberger LJ and Moore-Bick LJ agreed.

1. The complaint concerning the appellant’s father did not establish an error of law. There was no clear evidence of any continuing interest by the Sudanese authorities in the father, and the issue had not been properly raised before the immigration judge. On the evidence, there was no sufficient basis for concluding that the father’s activities heightened the appellant’s risk on return.
2. The immigration judge accepted the appellant’s three detentions and ill-treatment, and accepted that they arose from his involvement with the Democratic Unionist Party. The judge nevertheless framed the risk assessment by reference to past events and did not ask what risk would arise if the appellant returned to Sudan and continued low-level political activities of the kind he had previously undertaken.
3. The proper assessment had to be made in the light of the appellant’s accepted past detention and mistreatment. The judge’s conclusion that the appellant would not have been released so easily if he had remained of interest to the authorities did not cure the failure to conduct the appropriate risk assessment. The error was material because a proper assessment might have produced a different result.
4. The judge also had to make a reasoned appraisal of the in-country information and reach his own conclusions, having regard to any relevant country guidance. The fact-finding report contained substantial and partly inconsistent material, but it had not been evaluated in the context of the correct prospective question.
5. The appeal was therefore allowed on the single material error of law identified. The case was remitted for redetermination on the existing findings of fact and on up-to-date in-country evidence.

1. Court of Appeal (Civil Division): Allowed the appeal against the immigration judge’s decision and remitted the case to the Asylum and Immigration Appeal Tribunal for redetermination.
2. Asylum and Immigration Appeal Tribunal: An immigration judge dismissed the appellant’s asylum and human-rights claims in April 2005. The case had previously been remitted twice for fresh hearings.