Mogos v Secretary of State for the Home Department

The scope of a rehearing following remittal depends on the true basis of the remittal, determined from the relevant orders and the surrounding facts and circumstances. A tribunal may remit an appeal at large or on a defined issue. Where remittal was ordered only to resolve a specified issue concerning expert evidence and credibility, the immigration judge is confined to that issue. Consideration of unrelated human-rights issues is beyond jurisdiction.

The appellant, born in Ethiopia to Eritrean parents, arrived in the United Kingdom in 1999 and claimed asylum. His asylum appeal was dismissed after adverse credibility findings. A subsequent human-rights application based on Articles 3 and 8 of the European Convention on Human Rights was also refused.

Following successive appeals, the Immigration Appeal Tribunal set aside an earlier determination because the treatment of medical evidence from Dr Huckstep required reconsideration. On rehearing, the Tribunal remitted the appeal to a different adjudicator. The immigration judge later upheld the original credibility findings and considered the remaining human-rights issues only briefly. The central issues before the Court of Appeal were the scope of the remittal and whether the credibility finding could properly stand.

1. Appeal dismissed. Laws LJ gave the principal judgment. Richards LJ and Auld LJ agreed that the appeal should be dismissed.
2. Scope of the remittal. The transitional provisions required the appeal to be dealt with by way of reconsideration, but did not determine whether every rehearing was unrestricted. The court had to identify the true basis of the remittal from all the facts and circumstances. A remittal could be at large or confined to a narrower issue.
3. Application to this appeal. Under section 101 of the National Asylum and Immigration Act 2002, the Immigration Appeal Tribunal’s jurisdiction was limited to points of law. The only legal issue identified when the appeal was remitted concerned the possible effect of Dr Huckstep’s evidence on the original credibility findings. The Tribunal’s rehearing dealt only with that issue and remitted the appeal so that it could be resolved properly. It did not reopen the appeal generally.
4. The immigration judge therefore acted within jurisdiction by taking the original credibility findings as the starting point and deciding whether Dr Huckstep’s evidence undermined them. His consideration of other human-rights matters was beyond his power, but did not invalidate the determination. The second ground of appeal did not arise.
5. Credibility. Richards LJ added, for completeness, that the appeal would also fail on the credibility issue. It was reasonably open to the immigration judge to conclude that the new evidence did not undermine the independent reasons for the original adverse findings.
6. It would have been preferable for the Immigration Appeal Tribunal to state the basis of its remittal more clearly.

• Court of Appeal (Civil Division): On 18 January 2006, the appeal against the immigration judge’s determination was dismissed unanimously under [2006] EWCA Civ 611.
• Asylum and Immigration Tribunal: On 13 December 2004, following an order setting aside an earlier determination, the Tribunal allowed the appeal only to the extent of remitting it for rehearing by a different adjudicator.
• Immigration judge: The determination promulgated on 5 May 2005 upheld the original credibility findings and rejected the Articles 3 and 8 claims. The Court of Appeal held that the judge correctly understood the limited scope of the remittal.