IA (Somalia) v Secretary of State for the Home Department

An error of law is material unless the decision-maker must have reached the same conclusion without it. It is therefore material where the decision-maker might have decided differently after considering relevant country guidance.

A country-guidance decision is authority only for the proposition it states. It may not resolve a risk arising from later evidence or from a distinct stage of return. In assessing return to a safe area, a tribunal must address whether the person can safely travel from the point of arrival to that area.

The appellant, a Somali woman with a young child, appealed against the decision of the Asylum and Immigration Tribunal (AIT), which had allowed the Secretary of State's appeal from an Adjudicator.

The Adjudicator had rejected her asylum claim but allowed her human-rights appeal. He found a real risk of treatment contrary to Article 3 if she returned to Mogadishu and held that internal relocation was unreasonable. The AIT held that he had erred by failing to consider the country guidance in FG (Somalia), and dismissed the appeal after briefly applying later guidance in NM (Somalia).

The central issues were whether the failure to consider FG (Somalia) was a material error of law and whether the AIT had adequately addressed the safety of travel from Mogadishu airport to a safe area.

1. Appeal allowed in part unanimously. Keene LJ, with whom Rix and Tuckey LJJ agreed, held that the Adjudicator's failure to consider FG (Somalia), on the appellant's concession, was an error of law. The court did not decide whether that would have been so before the later statutory and practice-direction regime. Rix LJ added that he would have required persuasion that the earlier position was otherwise; Tuckey LJ expressed no view.

2. The error was material. In public-law appeals, an error is material unless the decision-maker must have reached the same result without it. Although the Adjudicator had additional background material, the court could not confidently conclude that he would have reached the same outcome after taking the relevant country guidance into account. NM (Somalia), decided after examining substantially similar material, generally endorsed the relevant proposition in FG (Somalia). The AIT was therefore entitled to reconsider the case.

3. The AIT's reconsideration was nevertheless incomplete. NM (Somalia) required a careful examination of whether a lone woman could safely negotiate control at Mogadishu airport and obtain safe passage to her home area. Country guidance is authority only for the proposition it contains. It does not govern a risk from a source or of a kind not addressed by it. The AIT had not examined the risk to this appellant at, and between, the airport and a safe area.

4. The AIT's additional conclusion that there could be no human-rights claim without a removal decision was also untenable following JM v Secretary of State for the Home Department [2006] EWCA Civ 1402. That error did not displace the separate, material country-guidance error.

5. The case was remitted for rehearing only on the risk during travel from the airport to a safe area in Mogadishu.

• Court of Appeal (Civil Division): Allowed the appeal in part and remitted the case on the limited issue of risk between Mogadishu airport and a safe area: [2007] EWCA Civ 323.
• Asylum and Immigration Tribunal: On 27 April 2006, allowed the Secretary of State's appeal after finding errors of law in the Adjudicator's determination and dismissed the appellant's appeal.
• Adjudicator: On 28 September 2004, rejected the asylum claim but allowed the human-rights claim, finding a real risk of treatment contrary to Article 3 on return to Mogadishu and rejecting internal relocation.