A v Secretary of State for the Home Department

Where an appellate tribunal overturns an adjudicator’s risk assessment, it must identify an objective basis showing that a different view is required, rather than merely preferred. It must also confront material primary findings, including accepted evidence of past detention, torture, political activity and police interest. A tribunal cannot sustain a different outcome by treating those findings as insignificant or by reappraising the evidence on a flawed factual or legal basis. Where the permitted grounds of appeal disclose no established error and the tribunal’s own intervention cannot stand, remission is not an appropriate means of giving the respondent a further opportunity to obtain a favourable decision. The original determination may instead be restored.

The appellant, a Turkish Kurd and HADEP member, claimed asylum and protection under article 3 after describing repeated detention and torture by Turkish security services. An adjudicator accepted his account and allowed the appeal in November 2002.

The Immigration Appeal Tribunal, in AIT NO.HX/40161/2001, allowed the Secretary of State’s appeal in November 2004, concluding that the appellant had not shown a real risk on return. The tribunal had refused to adjourn pending IK (Returnees – Records – IFA) Turkey and later failed to take proper account of accepted evidence that the police knew of the appellant’s HADEP membership and suspected PKK links. The central issue was whether the tribunal had lawfully displaced the adjudicator’s findings and whether the case should be remitted.

1. Appeal allowed; adjudicator’s determination restored. The Court of Appeal held that the Immigration Appeal Tribunal’s decision could not stand because it overlooked or misapprehended potentially determinative accepted evidence. In particular, the finding that the arrests were devoid of significant evidence of perceived separatism ignored the appellant’s evidence that the police knew he was an active HADEP member, suspected PKK links and repeatedly questioned him about them under torture.
2. The former appellate jurisdiction permitted review of factual inferences drawn from primary findings, but the power to interfere was not at large. Applying Subesh [2004] EWCA Civ 56, intervention required objective grounds showing that a different view was required by the reasoning process and the applicable law, not merely that the tribunal preferred another view. The court noted that the later authority of Miftari [2005] EWCA Civ 481, restricting appeals to issues for which permission was given, could not simply be imported into the former jurisdiction.
3. The tribunal’s reasoning was also flawed in treating the appellant as no more than a demonstrator, failing to address the accepted history of detention and torture, and relying on an assumption about undocumented return which was unsupported by the material before it. The adjudicator had already considered the lapse between detentions and the group nature of the 2000 arrest.
4. Remission was unavailable on these facts. The Secretary of State’s grounds had disclosed only unsubstantiated disagreements on fact, while the tribunal’s distinct reasons for overturning the adjudicator were unsustainable. Although remission may be just, or least unjust, in other cases, finality of legal process opposed giving the respondent another opportunity to secure a decision not supported by any sufficient basis in fact or law.
5. The refusal to adjourn pending IK (Returnees – Records – IFA) Turkey was not determinative because any prejudice would have been cured by remission; however, remission was unnecessary once the tribunal’s substantive intervention failed.

• Court of Appeal (Civil Division) — Appeal allowed and the adjudicator’s determination restored: [2006] EWCA Civ 422.
• Immigration Appeal Tribunal — In AIT NO.HX/40161/2001, the Secretary of State’s appeal from the adjudicator was allowed in November 2004, on the basis that the appellant had not established a sufficient risk of persecution or article 3 ill-treatment.
• Adjudicator — The appellant’s appeal was allowed on asylum and article 3 grounds in November 2002.