H v Secretary of State for the Home Department

An immigration judge may adopt reasoning from the Secretary of State’s refusal letter where the resulting decision is sustainable. However, the judge must engage with material evidence and explain why significant subsequent evidence is rejected. A decision which appears to rely wholesale on the original refusal letter, without adequately addressing a later witness statement and supporting evidence, may disclose an arguable error of law. At the permission stage, the court need only be satisfied that a complete absence of prospect of success cannot be shown. It need not finally determine whether a particular credibility finding would independently resolve the appeal.

The applicant, who claimed asylum after fleeing Somalia, challenged an immigration judge’s reconsideration determination dismissing his appeal. The determination rejected his account principally on credibility grounds, including his claimed minority-clan membership and alleged persecution.

The renewed application contended that the immigration judge had failed to engage with the applicant’s evidence and submissions, particularly a witness statement responding to matters raised in the Secretary of State’s refusal letter. Permission had previously been refused on the papers. The central issue was whether the proposed challenge disclosed a sufficient prospect of success to justify permission to appeal.

1. The renewed application for permission to appeal was granted. The court considered that the applicant had crossed the threshold because it could not be said that there was a complete absence of prospect of success.
2. An immigration judge may reach a sustainable decision by expressly adopting reasoning advanced by the Secretary of State or contained in the refusal letter. That possibility did not resolve this application because the complaint was broader: the determination appeared to rely substantially on the original refusal letter without adequately engaging with later evidence.
3. The applicant’s witness statement dated 27 January 2004 addressed many matters relied upon by the Secretary of State. Although the statement was mentioned in the determination, the immigration judge did not explain why it was rejected as a reasoned response. The same deficiency affected other significant matters identified in the proposed grounds. The court was unable to tell whether the evidence had been rejected for adequate reasons.
4. The court recognised that the immigration judge might properly have rejected the claimed minority-clan membership, in which event the remaining account of past persecution and future risk might have fallen away. At the permission stage, however, it was inappropriate to proceed on that assumption without resolving the argued defects in the reasoning.
5. The applicant was directed to file amended, self-contained grounds within seven days. The substantive appeal was to be heard by three members, including at least one member of the asylum group, and one member could be a High Court judge.

• Court of Appeal (Civil Division): On 2 May 2006, the renewed application for permission to appeal was granted in [2006] EWCA Civ 647. The court directed amended grounds and a three-member hearing.
• Asylum and Immigration Tribunal: The immigration judge dismissed the applicant’s reconsideration appeal on adverse credibility findings.
• Earlier permission stage: Brooke LJ refused permission on the papers on 23 March, before the renewed application.