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

On a renewed application for permission to appeal, a credibility finding will not be disturbed unless no reasonable judge could properly have reached it. General background evidence about persons leaving Eritrea without an exit visa did not establish that this appellant was a draft evader or deserter. In a medical-removal case, the tribunal was entitled to conclude that the evidence did not satisfy the very exceptional Article 3 threshold or the high Article 2 threshold. Later deterioration in the appellant’s condition might justify reconsideration by the Secretary of State, but did not establish an arguable error of law.

The applicant appealed to the Court of Appeal from Immigration Judge Appleyard’s determination, prepared on 21 April 2006, dismissing his asylum and human-rights appeal. Permission was refused by Senior Immigration Judge Goldsteam J and later by Hallett LJ on paper.

The applicant challenged the credibility finding by relying on country material and KA CG UK AIT 00165 of 2005. He also relied on updated medical evidence concerning Devic’s disease and argued that removal would breach Articles 3 and 2. The issues were whether the asylum findings disclosed an arguable error of law and whether the medical evidence crossed the relevant human-rights thresholds.

1. Application refused. The applicant accepted that the asylum challenge could succeed only if the finding that he was not a draft evader or deserter was one which no reasonable judge could properly reach. That threshold was not met.
2. The background material discussed in KA CG UK AIT 00165 of 2005 did not assist in deciding this applicant’s credibility. The tribunal had found that he was not a draft evader or deserter and might instead have completed military service before working as a taxi driver. It was not arguable that the background material or KA assisted the challenge.
3. On the human-rights appeal, the tribunal was entitled to reach its conclusion on the evidence available at the original hearing. The tribunal accepted the diagnosis of Devic’s disease but concluded that the cumulative circumstances did not satisfy the very exceptional circumstances required under Article 3, as stated in the House of Lords decision referred to as N. The Article 2 threshold was also not met, death being required to be a near certainty.
4. The updated medical evidence suggested that the applicant’s condition might have materially worsened. The Secretary of State might therefore wish to reconsider the human-rights ground, but the deterioration did not justify permission to appeal.
5. A transcript was ordered to be provided to the applicant’s counsel and solicitors.

• Court of Appeal (Civil Division): The renewed application for permission to appeal was refused. The court found no arguable material error of law.
• Asylum and Immigration Tribunal: Immigration Judge Appleyard dismissed the applicant’s asylum and human-rights appeal in a determination prepared on 21 April 2006.
• Permission stage: Permission was refused by Senior Immigration Judge Goldsteam J and subsequently by Hallett LJ on paper.