HB (Albania) v Secretary of State for the Home Department

In an asylum appeal, a tribunal which finds a material error of law may confine reconsideration to specified issues. The second-stage tribunal must follow the first-stage directions and may depart from the original reasons only in very exceptional cases. A flawed credibility finding on one issue does not automatically reopen every other issue. The relevant question is whether the error is capable of affecting the separate findings. Where risk on return from relatives falls within the permitted scope, it must be considered, but an evidence-based conclusion that the risk is not established will stand if the tribunal was entitled to reach it.

The appellant, an Albanian national, claimed asylum on the basis of political persecution linked to her father’s political history. At the Adjudicator’s hearing she introduced allegations of childhood sexual abuse in Albania and domestic violence in the United Kingdom. The Adjudicator rejected the claims, but made a material error in understanding the alleged sexual abuse. The AIT granted reconsideration on that issue, declined to revisit the political-persecution and private-life issues, and considered the sexual allegations, risk on return and sufficiency of protection before dismissing the appeal. The central issues before the Court of Appeal were whether the reconsideration should have been widened and whether the AIT had properly assessed risk from the appellant’s relatives.

The Court of Appeal unanimously dismissed the appeal.

1. Scope of reconsideration. Under the Asylum and Immigration Tribunal (Procedure) Rules 2005, the first-stage tribunal had to determine whether the Adjudicator had made a material error of law. Having found such an error, it could order reconsideration and limit submissions or evidence to specified issues. The second-stage tribunal had to have regard to those directions. Under the Asylum and Immigration (Practice) Direction, departure from or variation of the first tribunal’s written reasons was permitted only in very exceptional cases.
2. Credibility findings. The court accepted that a credibility finding directly relevant to one contested issue may affect an adjudicator’s approach to other issues. That did not occur here. The political-persecution findings rested on the political changes in Albania and the time since the appellant’s father had left, rather than on the rejected sexual-abuse allegations. The first- and second-stage tribunals were therefore entitled to confine reconsideration and refuse to reopen that part of the claim.
3. Risk on return. The AIT had not excluded consideration of risk from the appellant’s family. It considered the background material, the alleged risk of forced marriage and family pursuit, and the question whether sufficient protection could be accessed. Its conclusion that the appellant was unlikely to be pursued for childhood events, and could obtain protection, was one it was entitled to reach. The alleged domestic violence in the United Kingdom did not establish a risk on return to Albania.
4. Final comment. Adjudicators should take care when preparing determinations. Errors suggesting that material has been copied from another case may undermine confidence and generate unnecessary proceedings.

1. Court of Appeal (Civil Division): In [2007] EWCA Civ 569, the appeal from the AIT was dismissed.
2. Asylum and Immigration Tribunal: The AIT reconsidered the case after identifying a material error of law in the Adjudicator’s treatment of the sexual-abuse allegations. It limited reconsideration of the political-opinion and private-life issues, considered the permitted risk-on-return issues, and dismissed the appeal. Its decision was promulgated on 6 September 2006.
3. Adjudicator: The appellant’s asylum and European Convention claims were dismissed in a determination promulgated on 27 July 2004. The determination contained a material error concerning the alleged sexual abuse.