FT (Turkey) v Secretary of State for the Home Department

On a renewed application for permission to appeal in an asylum case, a tribunal conducting a second-stage reconsideration must address the material issue identified in the order directing reconsideration. Where the issue is whether ill-treatment was inflicted for a Convention reason, a general conclusion that the incident was isolated may not resolve the required causal question. Failure to make a specific finding may constitute an arguable error of law. It may also be arguable error to reopen unrelated matters or make findings inconsistent with earlier findings when those matters fall outside the reconsideration’s scope.

The appellant’s asylum claim was initially dismissed by the Asylum and Immigration Tribunal, although the immigration judge accepted that she had been raped. Reconsideration was granted because the judge appeared to have overlooked the alleged political reason for the attack. A later AIT panel directed a second-stage reconsideration focused on whether the ill-treatment and rape resulted from her husband’s political activity.

At the second reconsideration, the immigration judge accepted that the rape occurred but rejected the claim on credibility grounds. The appellant contended that the judge had failed to decide the identified causal issue and had relied on findings concerning matters outside the permitted scope of reconsideration. The renewed application followed refusal of permission on the papers.

1. Permission granted. Lord Justice Maurice Kay considered that the second immigration judge’s approach was arguably erroneous. Lord Justice Tuckey agreed. The court therefore allowed the renewed application for permission to appeal.
2. Failure to determine the material issue. The second-stage reconsideration had been ordered because the first decision had failed to determine whether the appellant had been ill-treated and raped because of political activity attributed to her husband. The reconsidering judge accepted that the rape occurred but did not specifically accept or reject the appellant’s evidence explaining why the gendarmes attacked her. That omission was arguably material.
3. Insufficient analysis. A conclusion that the rape was an isolated incident, even if horrific, was arguably inadequate because it did not address the political nexus that formed the basis of the reconsideration order.
4. Scope of reconsideration. The court also considered it arguable that the judge had made adverse findings on matters not directly related to the rape, and had departed from findings made by the original immigration judge, despite the limited purpose of the second reconsideration.
5. The court granted permission only. It did not finally determine whether the appellant had established persecution or whether the alleged rape was politically motivated.

• Court of Appeal (Civil Division) — On 19 October 2007, the court allowed the renewed application for permission to appeal.
• Asylum and Immigration Tribunal — The appellant’s first appeal was dismissed in June 2005. Reconsideration was granted on 19 July 2005. On 19 October 2006, an AIT panel ordered a second-stage reconsideration concerning whether the ill-treatment and rape resulted from her husband’s political activity. On 22 January 2007, the immigration judge accepted that the rape occurred but rejected the claim on credibility grounds.