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

On a renewed application for permission to appeal, an appellate court may refuse to reopen an issue which was expressly conceded below, particularly where the concession was clearly recorded and no prompt challenge to its accuracy was made. A concession that there was no real risk of ill-treatment contrary to Article 3 of the ECHR may dispose of a refugee claim based on persecution, since the alleged persecution would itself have to reach the relevant Article 3 threshold. Arguments based on additional evidence cannot succeed if they depend on an issue excluded by the concession. The application was therefore refused.

The appellant, an Eritrean national, challenged the Asylum and Immigration Tribunal’s reconsideration decision dismissing her appeal on humanitarian protection grounds. The first immigration judge had accepted much of her personal history but rejected her asylum and Article 3 claims, while allowing humanitarian protection for reasons later found legally inadequate. On reconsideration, the Senior Immigration Judge set aside that decision and substituted a dismissal.

Permission to appeal was refused on the papers. On renewal, the appellant argued that the Senior Immigration Judge had failed to engage with her reply, including a letter concerning demonstrations and party activity in the United Kingdom. The central issues were whether the recorded concession that the Article 3 findings were not challenged prevented further reliance on those findings, and whether the documentation disclosed an arguable risk on return.

1. Application refused. The appellant had accepted that the first immigration judge’s findings on the Article 3 claim were not challenged. The Senior Immigration Judge was therefore entitled not to deal further with the Article 3 claim or the Refugee Convention claim.
2. The court treated the recorded concession as clear and decisive. It had appeared in paragraph 24 of the reconsideration decision since January 2008. Any contention that it misrecorded or misrepresented the position should have been raised substantially earlier. The court declined to stand out the matter, emphasising the need to determine such issues without delay.
3. A refugee claim based on persecution could not be advanced where there was no Article 3 claim, because the alleged persecution would itself fall within Article 3. The same concession therefore prevented reliance on risk-on-return arguments directed to Article 3 ill-treatment, including arguments based on activities in the United Kingdom.
4. The letter from the ELF-NC Youth Union Chairman was not persuasive evidence of the asserted demonstrations. Its wording appeared to infer attendance from an organisational obligation rather than confirm the author’s actual knowledge. It also did not overcome the first immigration judge’s finding that the appellant had been vague about the number, timing and location of demonstrations.
5. The decision in YB (Eritrea) v Secretary of State for the Home Department [2008] EWCA Civ 360 was referred to in support of the risk argument, but the application failed because the concession prevented that argument from being advanced.

• Court of Appeal (Civil Division): On renewal of the application under [2008] EWCA Civ 1000, permission to appeal was refused.
• Asylum and Immigration Tribunal: Senior Immigration Judge Eshun set aside the first immigration judge’s decision, found material errors of law in the humanitarian protection reasoning, and substituted a decision dismissing the appeal on humanitarian protection grounds.
• First immigration decision: Immigration Judge Thorndike dismissed the asylum and Article 3 claims but allowed the humanitarian protection claim; reconsideration was ordered at the Secretary of State’s instance.