Ahmed v Secretary of State for the Home Department

Where an immigration appeal is remitted under transitional arrangements for the new asylum tribunal, the ordinary position is that the appeal is reheard as a whole. The new tribunal may hear evidence afresh and reconsider earlier credibility findings. A narrower jurisdiction arises only where the remitting court or tribunal identifies a specific issue as the basis and limit of the remission. The scope of a remission is determined by construing the remittal decision as a whole and by considering how the issues interrelate. A restriction on reconsidering earlier findings must be stated in clear terms, particularly where credibility, ethnicity, vulnerability and risk on return are closely connected.

The appellant, a Sudanese national, appealed against the refusal of asylum and human-rights protection. An adjudicator made findings favourable to her on identity and credibility but dismissed the appeal. The Immigration Appeal Tribunal found the determination unsatisfactory and directed that the appeal be decided again by another adjudicator.

Pending transitional provisions then transferred the matter to the Asylum and Immigration Tribunal. A new immigration judge heard detailed evidence, rejected the earlier findings on tribal identity, mixed race and alleged detention, and dismissed the claim. The issue before the Court of Appeal was whether the Immigration Appeal Tribunal’s remission had been limited to risk on return, leaving the earlier credibility findings untouched.

1. Appeal dismissed. The immigration judge had jurisdiction to rehear and determine the appeal as a whole.
2. Article 5 of the Asylum and Immigration (Treatment of Claimants) Act 2004 (Commencement No. 5 and Traditional Provisions) Order 2005 required a pending appeal remitted to an adjudicator to be dealt with as if the Asylum and Immigration Tribunal had originally decided it and were reconsidering its decision. The statutory language, together with paragraph 14.11 of the President’s practice direction, indicated that the normal case was a general rehearing.
3. Accordingly, the new immigration judge was not generally precluded from hearing evidence or from reconsidering previous credibility findings. A remission may be narrower where the remitting tribunal identifies a specific issue as its basis and limit. The scope must be gleaned from all the facts and circumstances of the remission.
4. Mogos illustrated the exception. There the remission was confined to the identified issue concerning Dr Huckstep’s evidence, so the tribunal had to limit itself to that issue.
5. In the present case, the Immigration Appeal Tribunal’s order contemplated a general remission. The issues of internal protection and political-activity risk were closely bound up with the appellant’s identity, ethnicity, background and credibility. If earlier findings were intended to remain untouched, the tribunal would have needed to say so clearly. The immigration judge therefore properly reheard the case and made fresh findings.
6. The argument based on section 103(A) of the Nationality, Immigration and Asylum Act 2002 was misconceived and was abandoned. The original remission had been made under section 102.1(C), which was repealed when the new procedure commenced. The reference to [2006] UKAIT 13 concerned the new reconsideration procedure and did not govern this transitional section 102 remission. The application was refused.

• Court of Appeal (Civil Division) [2006] EWCA Civ 300: appeal dismissed; application refused.
• Asylum and Immigration Tribunal [AIT No. AS/02991/2004]: on remittal, the new immigration judge reheard the case, rejected the appellant’s material factual and credibility claims, and concluded that she had no well-founded fear of persecution. That finding was not successfully appealable.
• Immigration Appeal Tribunal: allowed the earlier appeal only to the extent of directing that it be decided again by an adjudicator other than the original adjudicator.
• Adjudicator: dismissed the appellant’s asylum and human-rights appeal; the determination was later accepted to be unsatisfactory.