Hatungimana v Secretary of State for the Home Department

In an appeal from the Asylum and Immigration Tribunal, the Court of Appeal has no power to invite an immigration judge to supplement reasons where the governing rules confer no such power. The decision in Barke v SEETEC Business Technology Centre Ltd [2005] EWCA Civ 1578 depended on a materially different procedural scheme. Appellate restraint in asylum fact-finding does not permit a judge to overlook material evidence or reject a claim as unsupported by objective evidence without addressing relevant expert and witness evidence. The decision must be assessed in its totality. An equivocal answer in cross-examination cannot by itself displace fuller evidence given in interview. Where cumulative defects undermine adverse findings, the appeal may be allowed and remitted for reconsideration.

The appellant, a Burundian national of mixed Hutu and Tutsi ethnicity, claimed asylum after her husband disappeared and her home was attacked. The Secretary of State refused her claim on 2 July 2003. An earlier adjudicator’s decision was set aside by the Immigration Appeal Tribunal, but an immigration judge reconsidered the case on 18 April 2005 and dismissed the appeal.

She appealed to the Court of Appeal, challenging findings about her husband’s political activities and disappearance, the threats and attack on her home, and the risk arising from her mixed ethnicity. She also argued that the immigration judge had failed to give adequate reasons for rejecting expert and other supporting evidence. The court had to decide both whether it could invite supplementary reasons and whether the findings were legally sustainable.

Lord Justice Brooke gave the leading judgment. Lord Justice Jonathan Parker and Lord Justice Maurice Kay agreed.

1. Power to invite supplementary reasons. The court had no power to invite the immigration judge to supplement the determination. English v Emery Reimbold and Strick Ltd [2002] EWCA Civ 605 concerned an appeal from a lower court and its reasoning could not readily be transposed to a statutory tribunal. In Barke v SEETEC Business Technology Centre Ltd [2005] EWCA Civ 1578, the power arose from the materially different scheme in the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, including rule 30(3)(b) and rules 34 to 37. The AIT was tightly controlled by its rules and had no equivalent power. Any wider concern about appeals would require an express rule.
2. Assessment of the determination. Intervention in an immigration judge’s treatment of facts is rare, but the court must examine the decision in its totality. The first adverse finding was vulnerable because the judge treated an answer in cross-examination as ruling out fuller and clearer answers given in interview about the husband’s political membership.
3. The finding that the husband had not been abducted was also unsound. The appellant’s initial approach to the authorities was consistent with seeking information about an accident or fight; her later reluctance was explained by concern that extremists might be involved. The judge had not adequately engaged with that evidence or the expert evidence about the composition of the police.
4. The treatment of the threats and attack was affected by the earlier findings. The expert evidence was relevant to the existence of threatening calls before attacks, even though it principally concerned extremist Tutsi practice rather than the Hutu rebels identified by the appellant.
5. The conclusion that there was no objective evidence supporting risk to people of mixed ethnicity was inadequately supported. The judge had to address the evidence of Professor Longman, Ms Mossi and the Danish fact-finding mission. The existence of unproblematic mixed marriages did not justify rejecting the contrary evidence.
6. The appeal was allowed and the matter was remitted to the AIT for yet further reconsideration.

1. Court of Appeal (Civil Division): [2006] EWCA Civ 231. Appeal allowed and remitted to the AIT for yet further reconsideration.
2. Asylum and Immigration Tribunal: Immigration judge’s reconsideration decision dated 18 April 2005 dismissed the appeal against the Secretary of State’s refusal of asylum. The appeal was recorded under AIT No. AS/49711/2003.
3. Immigration Appeal Tribunal: An earlier adjudicator’s decision had been set aside before the reconsideration by the immigration judge.