SH (Afghanistan) v Secretary of State for the Home Department

In an asylum appeal, the Court of Appeal held that a failure to raise an unreported or non-country-guidance tribunal decision does not automatically establish an error of law. The case nevertheless raised a proper question whether the duty of an asylum tribunal to identify points of its own motion should extend beyond the existing Robinson principle where material capable of affecting a life-or-death outcome is before the tribunal. The court also identified possible independent duties on Home Office advocates to draw attention to matters helpful to an appellant when the appellant or representative has overlooked them. Permission to appeal was granted because the issues were matters of principle and had a realistic prospect of success.

The appellant challenged an Asylum and Immigration Tribunal decision concerning his claimed risk on return to Afghanistan arising from former association with Hezb-E-Islami. The first-instance Immigration Judge accepted parts of his account but relied on a 2005 CIPU report and rejected the claimed risk. A contrary AIT decision, RS (Hezbe Islami expert evidence) Afghanistan, with supporting expert evidence, was in the hearing bundle but had not been referred to by the appellant’s advocate.

On reconsideration, the Senior Immigration Judge held that failure to consider a non-starred, non-country-guidance AIT decision, to which attention had not been specifically directed, was not itself an error of law. The central issue was whether the tribunal, the Home Office advocate, or both had obligations extending beyond that conclusion in an asylum case potentially involving life or death.

Permission granted. The Court of Appeal considered that the proposed appeal raised issues of principle and had a realistic prospect of success.

1. The failure of counsel to refer to a reported AIT decision which was neither a starred determination nor a country-guidance case did not, in its naked form, engage the Robinson doctrine. The court was not, however, convinced that the existing doctrine should remain confined to that form.
2. The court identified a possible enlargement of the tribunal’s obligation in asylum cases to take points of its own motion. That issue arose from the United Kingdom’s international obligation under the Refugee Convention to ensure that claims deserving international protection are properly investigated, as explained in BR (Iran).
3. The court also identified a real question whether a Home Office Presenting Officer, like an advocate or solicitor, has an independent obligation to justice to draw the tribunal’s attention to material helpful to the appellant where the appellant or representative has overlooked it.
4. The court noted that, in asylum cases, there is no general principle fixing a party with the procedural errors of the party’s representative, referring to FP (Iran). The strict rule formerly thought applicable in ordinary litigation may not be appropriate where the consequence is return to a country of feared persecution.
5. The court noted that the decision in RS, although not strictly country guidance, had subsequently been treated with considerable respect by the Administrative Court in Ahadyar.

The order was: application granted.

• Court of Appeal (Civil Division): Permission to appeal from the Asylum and Immigration Tribunal was granted. The court identified arguable issues concerning the tribunal’s own-motion obligations, the duties of Home Office advocates, and the effect of representative error.
• Asylum and Immigration Tribunal: Immigration Judge Salmon rejected the claimed risk on return. On first-stage reconsideration, Senior Immigration Judge Waumsley concluded that no error of law warranting further reconsideration had been shown.