AG (Eritrea) v Secretary of State for the Home Department

On an appeal alleging errors of law in an asylum determination, the appellate court must not reassess the merits. It asks whether the decision below was lawful and whether any error was material.

A fact need not be expressly determined where, even if established, it could not create the claimed risk on return. Illegal departure does not by itself establish such a risk where the claimant would not be regarded as a draft evader and the underlying risk findings stand. A tribunal may reject one part of an account before considering a separate religious-identity claim where that identity does not support the rejected account. Credibility findings remain lawful where supported by adequate reasons.

The appellant, an Eritrean citizen, claimed asylum after alleging that her husband had deserted from the Eritrean Army, that she had been detained, and that she had converted to Pentecostalism. She said that the police later searched her employer’s home and sought her because of the banned religion.

The Secretary of State refused the claim. An immigration judge dismissed the appeal, finding that the account was not credible, that the appellant was not a Pentecostalist, and that there were no substantial grounds for believing that she would be at risk on return. Reconsideration was ordered, but a senior immigration judge found no material error of law. Permission to appeal was refused by the Tribunal and by Sir Henry Brooke. The central issue was whether the original decision disclosed an arguable error of law.

Application refused. Permission to appeal was refused because there was no real prospect of success.

1. The complaint that the same senior immigration judge decided the reconsideration and permission application disclosed no error. It was normal practice for the judge who decided the case to decide whether to grant permission, and the matter was in any event considered directly by the Court of Appeal.
2. The absence of an express finding about the husband’s alleged desertion was not a material error. The alleged desertion did not itself place the appellant at risk on return, and she accepted that it was not the reason she had left Eritrea.
3. No error arose from the treatment of the alleged illegal departure from Eritrea. The appellant was not said to be at risk as a draft evader, and illegal departure, even if proved, would not by itself establish a risk where the tribunal’s other findings were correct.
4. The tribunal did not fall into the alleged credibility error. The appellant’s claim to be a Pentecostalist did not support the credibility of her account of the raid on her employer’s home. The tribunal was entitled to reject that account for the reasons given and then consider the separate claim concerning her faith.
5. The Court of Appeal’s function was to determine whether the decision below was lawful, not to reach its own conclusion on the merits. There was no arguable error in the tribunal’s rejection of the appellant’s evidence about her faith.

• Court of Appeal (Civil Division). The renewed application for permission to appeal was refused. [2007] EWCA Civ 1285.
• Asylum & Immigration Tribunal. An immigration judge dismissed the asylum appeal. On reconsideration, a senior immigration judge held that the original decision contained no material error of law.
• Permission stages. Permission to appeal was refused by the Tribunal and by Sir Henry Brooke before the application was renewed in the Court of Appeal.