RH (Ghana) v Secretary of State for the Home Department

A fact-finding tribunal that has heard the witnesses need not explain why it rejects every inconsistent answer when it clearly accepts one witness’s evidence. The reasons required depend on the nature of the dispute. An appellate tribunal must distinguish disagreement with factual findings from an error of law and exercise particular caution before interfering with findings based on oral evidence. Where a first-stage tribunal wrongly identifies an error of law, a subsequent rehearing cannot stand.

The applicant sought entry clearance to join his mother in the United Kingdom as her dependant. An adjudicator allowed the appeal under paragraph 197 of HC395, finding that the mother had sole responsibility for him. The first-stage Asylum and Immigration Tribunal found an error of law based on the adjudicator’s reasoning and transferred the case to a second-stage hearing, which reheard the evidence and discharged the adjudicator’s decision. The central issue was whether the first-stage tribunal was entitled to find an error of law.

1. Appeal allowed with costs. The Asylum and Immigration Tribunal’s determination was quashed and the adjudicator’s order reinstated.
2. The adjudicator had referred to Rule 194 instead of paragraph 197 of HC395. That was an incorrect citation, but the substance of the determination addressed the correct rule and the correct question, namely whether the sponsor had had sole responsibility for the applicant.
3. The adjudicator had heard the sponsor give evidence and expressly found her wholly credible. He accepted her explanation for the birth-registration discrepancy and her evidence that the father had played no substantial role in the applicant’s upbringing. It was not necessary for him to speculate about the applicant’s inconsistent answer or separately explain why it did not displace the sponsor’s evidence.
4. The principles in Flannery v Halifax [2000] 1 WLR 377 and English v Emery Reimbold [2002] 1 WLR 2409 did not require more extensive reasoning on these facts. The reasoning required from a tribunal depends on the nature of the dispute. A case involving competing experts may require an explanation of why one was preferred, but a tribunal which clearly accepts one witness’s evidence need not address every contrary answer.
5. Appellate tribunals must be extremely careful before converting a view that they would have reached different factual conclusions into an error of law. Where the basis of the fact-finder’s conclusion is clear, the appellate tribunal cannot go behind it.
6. The failure to attach the reasons for the first-stage decision, commonly called the pink form, contravened the Practice Direction and the direction in R (Wani) v Secretary of State [2005] EWHC 2815 (Admin). The form was an essential part of the AIT process and had to be attached, although its subsequent availability showed the basis of the first-stage decision. Since that decision disclosed no error of law, the second-stage hearing should not have proceeded.

• Court of Appeal (Civil Division) — Appeal allowed with costs. The AIT determination was quashed and the adjudicator’s order reinstated.
• Asylum and Immigration Tribunal — The first-stage tribunal found an error of law in the adjudicator’s determination and transferred the matter to a second-stage hearing. The second-stage tribunal reheard the case and discharged the adjudicator’s decision.
• Adjudicator — The appeal was allowed in July 2004, with entry clearance directed under paragraph 197 of HC395.