DN (Rwanda) v Secretary of State for the Home Department

On a renewed application for permission to appeal from an asylum and human rights decision, the Court of Appeal’s task is confined to deciding whether there is a real prospect that the tribunal made an error of law. The court has no wider discretion to reconsider factual findings or substitute its own assessment. Factual conclusions reached on evidence open to the tribunal do not disclose an appealable error merely because the appellant disagrees with them. A human-rights ground not advanced before the tribunal cannot ordinarily found the appeal; in any event, medical evidence which would have offered no real prospect of success does not justify permission.

The appellant, a Rwandan citizen, appealed against the refusal of his asylum claim and human-rights appeal. After an initial tribunal decision, an order for reconsideration, and a finding of an error of law on the first-stage reconsideration, the matter was reheard. Immigration Judge Shimmin rejected the appellant’s account of ill-treatment and dismissed the appeal.

On renewing his application for permission to appeal, the appellant challenged the factual findings and sought to rely on his mental health in support of a separate Article 8 claim which had not been advanced below. The central issue was whether there was any real prospect of showing an error of law in the tribunal’s decision.

1. Application refused. The appellant’s complaints principally challenged factual conclusions. Those conclusions were open to Immigration Judge Shimmin on the evidence and disclosed no error of law.
2. The Court of Appeal’s function on the renewed permission application was limited to deciding whether there was a real prospect that the tribunal had erred in law. It had no wider discretion to reconsider the merits or grant permission on compassionate or other grounds unrelated to an arguable legal error.
3. The proposed Article 8 claim based on the appellant’s health had not been advanced as a separate basis before the immigration judge. Having nevertheless considered the medical material, the court concluded that, even if it had been before the tribunal and relied upon separately, it offered no real prospect of success.
4. The application was therefore refused.

• Court of Appeal (Civil Division): On 22 January 2008, Lord Justice Toulson refused the renewed application for permission to appeal: [2008] EWCA Civ 114.
• Asylum and Immigration Tribunal: Immigration Judge Shimmin dismissed the reheard asylum and human-rights appeal in July 2007. The earlier tribunal proceedings had involved an order for reconsideration and a first-stage finding of error of law, followed by a full rehearing.