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

Article 1C of the Refugee Convention contains cessation clauses. It has no role in the initial determination under Article 1A(2) of whether an asylum-seeker is a refugee. A national passport may remain relevant evidence when assessing a well-founded fear of persecution, but an Article 1C(1)-derived rule cannot provide a discrete answer to the claim. Where an identified legal error may have affected adverse credibility findings, the appellate court should be cautious about upholding those findings unless they can be confidently relied upon. An unclear decision should be remitted for reconsideration.

The applicant, an Afghan national, entered the United Kingdom and claimed asylum, fearing persecution because of alleged involvement with Hezb-e-Islami and the Taliban. An Adjudicator dismissed his appeal against the refusal of asylum. Permission to appeal was granted, and the appeal became a reconsideration under the Asylum and Immigration (Treatment of Claimants, etc) Act 2004. The Asylum and Immigration Tribunal found a material error of law, but Immigration Judge Sacks dismissed the appeal after a second-stage hearing.

The applicant appealed to the Court of Appeal. The central issues were whether the Immigration Judge had wrongly treated the applicant’s acquisition of an Afghan passport as engaging Article 1C(1), and whether his credibility and risk findings were sufficiently clear to justify dismissing the appeal despite that error.

Appeal allowed and remitted. Latham LJ gave the judgment, with which Charles J and Ward LJ agreed.

1. Refugee status and cessation. Article 1A(2) of the Refugee Convention governs the initial question whether a person has refugee status. Article 1C contains cessation clauses. It operates only after refugee status has been accorded and cessation is invoked by the state. The court adopted the two-stage approach explained by Lord Brown in Hoxha & B [2005] 1 WLR 1063.
2. National passport. The Immigration Judge wrongly treated Article 1C(1) as providing a discrete and complete answer to the asylum claim, following MW (national passport: re-availment of protection) Pakistan [2004] UKIAT 00136. Article 1C(1) was therefore irrelevant to the initial determination of refugee status. The applicant’s obtaining of an Afghan passport was nevertheless evidence which the Tribunal was entitled to consider when deciding whether his fear of persecution was well founded.
3. Credibility and remittal. The court declined to dismiss the appeal on the basis that the Immigration Judge had made sufficiently clear findings. The passport error might have influenced the credibility assessment, and the findings were not expressed with sufficient clarity. Where an earlier error of law consists of failure to give proper reasons for an adverse credibility finding, the appellate court should be cautious about accepting a reconsideration finding unless it can confidently rely upon it. The matter was remitted to the Tribunal for a further second-stage reconsideration.

1. Court of Appeal (Civil Division): in [2007] EWCA Civ 214, allowed the appeal and remitted the matter to the Asylum and Immigration Tribunal for a further second-stage reconsideration.
2. Asylum and Immigration Tribunal: found a material error of law in the Adjudicator’s decision, then dismissed the appeal after a second-stage merits hearing.
3. Adjudicator: dismissed the applicant’s appeal against the refusal of asylum and directions for removal.