HF (Algeria) v Secretary of State for the Home Department

On reconsideration of an asylum appeal, findings and conclusions unaffected by the identified error of law should ordinarily stand. They may be reopened only where relevant new material or exceptional circumstances justify doing so. This approach promotes efficient case management and protects a successful party from the unfairness of relitigating settled issues.

An appellate court cannot treat an unlawful reopening as harmless unless satisfied that it could have made no difference to the result or fairness of the proceedings. Where accepted credibility may affect the evaluation of an alleged risk of state ill-treatment, objective country evidence cannot necessarily be assessed in isolation from those accepted facts.

The appellant claimed asylum on the basis that an Algerian militant group had threatened him after he acted as a police informer. An immigration judge accepted his credibility, his account of those events and his conviction in absentia for offences concerning police documents. She allowed his appeal, but the Asylum and Immigration Tribunal found a material error of law in her reasoning about the availability of police protection and ordered a complete rehearing.

At that rehearing, a different immigration judge rejected the appellant's credibility and dismissed the appeal. He also found that imprisonment on return would not infringe Article 3 of the European Convention on Human Rights.

The appellant sought permission to appeal. The central questions were whether the original decision contained a material error of law, whether the Tribunal lawfully reopened all factual issues, and whether the resulting error could have affected the assessment of state ill-treatment on return.

1. Appeal allowed. Lord Justice Carnwath, with whom Lord Justice Lawrence Collins and Lady Justice Hallett agreed, held that the original immigration judge had made a material error of law. The availability of police protection was critical because otherwise there was no basis for attributing the feared harm from the militant group to the state. The judge gave no reason why conviction for taking police documents would deprive the appellant of protection. Her other observations did not establish that treatment by the Algerian authorities would itself amount to persecution.

2. The Tribunal nevertheless erred by directing a complete rehearing. Under DK v Home Secretary [2006] EWCA Civ 1747, reconsideration is conceptually undertaken by the same tribunal. Findings and conclusions unaffected by the identified error should therefore remain undisturbed. They may ordinarily be revisited only where relevant new evidence or exceptional circumstances justify reopening them.

3. The appellant's credibility, his role as a police informer and his account of treatment by the militant group had been accepted. Those findings were neither challenged in the reconsideration application nor affected by the defective reasoning about police protection. No new material or exceptional circumstances justified reopening them. Requiring the unrepresented appellant to relitigate the whole account was wasteful, oppressive and potentially unfair.

4. The error could not be treated as immaterial. The assessment of objective evidence about detention and torture could not be wholly separated from the accepted facts. Disbelieving the appellant allowed the rehearing judge to regard him as an ordinary economic migrant and prisoner. Had his general credibility and the account of his associate's alleged torture remained accepted, that evidence might have affected the assessment of risk under Article 3 of the European Convention on Human Rights.

5. The Court directed reconsideration by a differently constituted tribunal, which was to disregard the later decision and proceed on the basis of the accepted findings. The likely remaining issue was the extent of any threat from the Algerian state authorities on return.

1. Court of Appeal (Civil Division): The appeal was allowed. The later Tribunal decision was to be disregarded, and the case was remitted to a differently constituted tribunal on the basis of the preserved credibility findings: [2007] EWCA Civ 445.

2. Asylum and Immigration Tribunal: Judge Sacks reheard the appeal, rejected the appellant's credibility and dismissed it. The Court of Appeal held that the unrestricted rehearing had resulted from an error of law.

3. Asylum and Immigration Tribunal: A panel presided over by Senior Immigration Judge Jordan found a material error in the earlier reasoning about police protection and ordered a complete rehearing. The Court of Appeal upheld the finding of material error but held that ordering reconsideration of every issue was unlawful.

4. Immigration Judge: Mrs Kempton accepted the appellant's general account and allowed his appeal. Her conclusion that his conviction would deprive him of state protection was inadequately reasoned.