TD (Ivory Coast) v Secretary of State for the Home Department

In a two-stage reconsideration, the tribunal must stay within the issues fixed at the first stage. Where the first-stage decision, read in context, has determined that accepted past treatment amounted to persecution for a Refugee Convention reason, the second-stage tribunal cannot reopen that issue while assessing risk on return. A decision based on such an error is unlawful. A hearing is also procedurally unfair where the parties proceed on a shared understanding of the issues, and the tribunal does not correct that understanding before deciding the case. The matter should be reconsidered on the basis of the settled findings, with current risk assessed against the accepted history and objective evidence.

An Ivory Coast national appealed against an Asylum and Immigration Tribunal decision dismissing her appeal from the refusal of asylum. The adjudicator had accepted her account and credibility but treated the rapes and other ill-treatment as harassment falling short of persecution. At the first stage of reconsideration, the AIT found a material error of law and directed that reconsideration be limited to risk on return and relocation, based on the adjudicator’s credibility findings. At the second stage, the AIT recharacterised the past treatment as isolated criminal acts and concluded that there was no current risk. The central issue was whether the AIT had been entitled to revisit whether the past treatment constituted persecution for a Convention reason, and whether the hearing was unfair if it proceeded on the appellant’s contrary understanding.

Appeal allowed. Lord Justice Tuckey gave the leading judgment. Lady Justice Arden agreed and gave additional reasons. Lord Justice Lawrence Collins agreed without adding further reasons.

1. The first-stage AIT hearing, conducted under rule 31 of the AIT rules, determined that the adjudicator had made a material error of law. Its written directions limited the second-stage reconsideration to risk on return and relocation, based on the adjudicator’s accepted credibility findings. Read in context, the first-stage tribunal had also decided that the appellant had suffered persecution for a Convention reason, namely her mixed-race ethnicity.
2. The second-stage tribunal therefore misunderstood the issues it had to decide when it reconsidered whether the appellant’s past treatment amounted to persecution for a Convention reason and treated the incidents as isolated criminal acts. Its decision was based on findings which were not open to it. The tribunal also failed properly to address sufficiency of protection and internal relocation.
3. Alternatively, the hearing was procedurally unfair. The appellant’s representatives proceeded on the understanding that the first-stage tribunal had already determined the persecution issue, and they were not disabused of that understanding before the second-stage decision was made.
4. The case was remitted for a further reconsideration on the basis that, before leaving the Ivory Coast, the appellant had suffered persecution for a Convention reason arising from her mixed-race ethnicity. The tribunal was required to assess present risk on return in light of that history and the objective evidence, including the issues of risk and relocation identified in the first-stage directions.

1. Court of Appeal (Civil Division) — On appeal from the AIT, [2007] EWCA Civ 123, the appeal was allowed and the case remitted for further reconsideration.
2. Asylum and Immigration Tribunal — At the first stage, the tribunal found a material error of law and directed reconsideration limited to risk on return and relocation. At the second stage, it dismissed the appeal after concluding that the appellant was not at risk because of her ethnic background.
3. Adjudicator — The appellant’s appeal against refusal of asylum was dismissed on 14 June 2004.