M v Secretary of State for the Home Department

In an appeal confined to error of law, the grounds on which permission is sought and granted define the appellate jurisdiction. A tribunal conducting reconsideration cannot enlarge that jurisdiction by pursuing an unpleaded issue, such as internal flight, without amendment. Accepted findings of detention, beating and sexual assault because of perceived political association, supported by objective country evidence, may establish a serious possibility or real risk of persecution on return even without political membership or earlier problems. An appellate tribunal must not substitute its own view of the facts for an evidentially supported finding. The appeal was allowed because the AIT treated factual disagreement as legal error and relied on an issue absent from the adjudicator’s decision.

The appellant, a Zimbabwean citizen, claimed asylum and protection under Articles 3 and 8 of the Human Rights Convention. An adjudicator accepted her account of detention, beating and sexual assault following her perceived association with the MDC through her uncle, and allowed her appeal on asylum and Article 3 grounds.

The Secretary of State sought permission to appeal on error-of-law grounds. Permission was granted, and the matter was reconsidered by the Asylum and Immigration Tribunal, which rejected the claim and held that the adjudicator had erred in assessing risk on return and internal flight. The central issue before the Court of Appeal was whether the AIT had acted within the permitted grounds and whether the adjudicator’s accepted findings supported a real risk on return.

Appeal allowed unanimously. Lord Justice Moses gave the leading judgment. Mr Justice Hedley agreed with all that he said, and Lord Justice Rix agreed.

1. Scope of the appeal. Section 101 of the Nationality and Immigration and Asylum Act 2002 provided the relevant right of appeal with permission, at a time when the only permissible ground was error of law. The grounds seeking permission, and the permission granted, defined the jurisdiction. The approach stated by Lord Phillips in B v Secretary of State for the Home Department [2005] EWCA Civ 61 was followed: the grounds form the agenda for permission and the appeal and must identify an arguable point of law.
2. The Vice President went beyond the grounds by raising a broad challenge based on perversity and the possibility of internal flight. Under the transitional arrangements, including article 5 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004, commencement number 5 and Transitional Provisions Order 2005, reconsideration was transferred to the AIT. Rule 62(7) of the Asylum and Immigration Tribunal Procedure Rules 2005 confined reconsideration to the grounds on which permission had been granted. No amendment was sought. The second ground barely contained a sustainable allegation of legal error; its complaint that the correct standard of proof had not been applied was wholly unsustainable, but its allegation that the risk conclusion was speculative was sufficient, just, to raise an error-of-law issue.
3. Risk on return. The adjudicator had expressly accepted the appellant’s account. The findings showed that she had been detained, beaten and sexually assaulted because of a perceived association with MDC supporters through her uncle, and that she had been threatened by a Zanu-PF member who recognised her from an earlier attack. In light of the unchallenged objective evidence, those findings provided ample support for a serious possibility or real risk of persecution and treatment contrary to Article 3. The AIT wrongly treated the incident as an isolated misadventure, relied on internal flight, and substituted its own assessment for the adjudicator’s evidentially supported conclusion.
4. The AIT’s reference to the abuse not being rape was irrelevant and insensitive. It should not have appeared in the determination. The order was that the appeal be allowed.

1. Court of Appeal (Civil Division): allowed the appeal from the AIT’s determination dated 22 August 2005.
2. Asylum and Immigration Tribunal: rejected the appellant’s asylum and Human Rights Convention claims and held that the adjudicator had made a material error concerning risk on return and internal flight.
3. Adjudicator: Mr Ievins promulgated his decision on 4 June 2004, accepted the appellant’s account and allowed her appeal on asylum and Article 3 grounds. Permission to appeal was subsequently granted by an IAT Vice President.