PO (Nigeria) v Secretary of State for the Home Department

In an immigration reconsideration, a second-stage tribunal should ordinarily confine itself to the errors of law identified at the first stage and should not reopen favourable findings on issues where no error was found. A rehearing by a single judge may be a nullity where the direction required a two-judge panel. Failure to engage with expert or country evidence capable of materially affecting the result may be an error of law, rather than merely a factual dispute. The judgment also states that an exceptionality test under article 8(2) is incorrect: the decision-maker must assess proportionality. The appeal was allowed.

The appellant, a Nigerian woman subjected to enforced prostitution, appealed against a reconsideration decision refusing her refugee and humanitarian protection claims. An immigration judge had originally allowed her appeal. On the Secretary of State’s appeal, the Asylum and Immigration Tribunal identified errors concerning internal relocation and sufficiency of protection, but certain factual findings remained undisturbed. The reconsideration was formally directed to a two-judge panel, yet was reheard by a single immigration judge, who reached the opposite conclusion. The Court of Appeal considered arguable issues concerning the tribunal’s constitution, the scope of reconsideration, treatment of expert and country evidence, internal flight, membership of a particular social group, mental state and proportionality under article 8(2). The appeal arose from [AIT No. AA/01314/2005].

Disposition. The Court of Appeal granted permission to pursue the additional grounds, and the formal order records: Appeal allowed.

1. The constitution of the reconsideration tribunal required investigation. The reconsideration direction appeared to require a two-judge panel, including a senior or designated immigration judge. The rehearing by a single judge might therefore have been a nullity.
2. Where the first stage identifies discrete errors of law, it is arguable that the second stage should be confined to those matters. It should not reopen issues already determined in the appellant’s favour where no error of law was found.
3. The challenge to the second judge’s treatment of evidence was legally arguable. Failure to consider expert evidence accepted by the first judge, and relevant evidence from the US State Department and UNHCR, could be material where the evidence was capable of having a critical impact on the outcome. Selective engagement with the evidence could amount to unfairness and legal error, rather than merely disagreement with factual findings.
4. Further arguable issues included the treatment of undisturbed findings, the relationship between internal flight and the objective foundation of fear, membership of a particular social group, and evidence concerning the appellant’s mental state and the impact of removal.
5. The second judge had applied an exceptionality test under article 8(2). Sedley LJ stated that this was an incorrect application of the provision. The proper exercise required an assessment of proportionality, and the circumstances relied upon might have received greater weight under that approach.

• Court of Appeal (Civil Division) — [2007] EWCA Civ 1183: the appeal was allowed and permission was granted to pursue the arguable grounds.
• Asylum and Immigration Tribunal — [AIT No. AA/01314/2005]: an initial immigration judge allowed the appellant’s appeal, but a subsequent reconsideration by a single immigration judge reached the opposite result.