AE (Ivory Coast) v Secretary of State for the Home Department

In an Article 3 removal case, the governing inquiry is a single test of exceptionality. A claimant need not satisfy separate requirements of exceptionality and extremity. The threshold remains high, but neither its degree nor its kind is fixed in advance. A tribunal must assess the full and current evidence, including the combined medical and social consequences of return. Where the first-stage decision identifies a material error of law, the tribunal must proceed to a second-stage reconsideration and assess the available evidence afresh.

The appellant, an HIV-positive woman from Côte d’Ivoire, appealed against the refusal of humanitarian protection. An adjudicator dismissed her human rights appeal in June 2004, accepting that her case was exceptional but finding that it was not sufficiently extreme for Article 3 protection.

Following the House of Lords decision in N v SSHD, the Asylum and Immigration Tribunal reconsidered the matter in December 2005 and concluded that the adjudicator had made no material error of law. The Court of Appeal considered that the adjudicator had applied a double hurdle and that the Tribunal had failed to separate the first and second stages of reconsideration. The central issue was the proper approach to the Article 3 exceptionality threshold and the consequent course on remittal.

1. Appeal and reconsideration. The appeal was allowed. The Asylum and Immigration Tribunal’s determination was flawed because it failed to distinguish the first stage, determining whether the adjudicator had made a material error of law, from the second stage, involving reconsideration of the merits. It was also unclear whether the Tribunal had found no error or an immaterial error. If a material error is identified at the first stage, the Tribunal must proceed to the second stage and consider the full available body of evidence, including relevant information arising since the adjudicator’s decision.
2. Article 3 threshold. The adjudicator had imposed a double hurdle by requiring both exceptionality and extremity. The decision in N v SSHD [2005] UKHL 31, effectively endorsed by the Grand Chamber of the European Court of Human Rights, established a single Article 3 test of exceptionality. The decisions did not prescribe the degree or kind of exceptionality required, and the threshold remained high.
3. Relevant circumstances. The appellant’s special facts were capable of reaching that high threshold. They included an unusually needy medical state, a real risk of having no family or friends to provide care, and a near certainty of losing the little remaining eyesight. It was immaterial whether the blindness was AIDS-related or resulted from sickle cell syndrome. The relevant prospect was of being blind, terminally ill, unmedicated and alone. The reference to D v UK [2004] EWHC Civ 2733 illustrated the distinction between cases which reached the threshold and the facts in N.
4. Remittal. The adjudicator’s finding of exceptionality was an evaluation rather than a finding of fact and was therefore not formally ring-fenced. The differently constituted Tribunal had to consider all relevant and up-to-date information, decide how exceptional the case was and in what respects, and determine whether the Article 3 threshold was met.

The case was remitted to a differently constituted Tribunal for a second-stage reconsideration. The court directed that the hearing take place as soon as practicable. Order: application granted.

1. Court of Appeal (Civil Division): Allowed the appeal against the Asylum and Immigration Tribunal’s determination of 22 December 2005 and remitted the case to a differently constituted Tribunal for a second-stage reconsideration.
2. Asylum and Immigration Tribunal: On reconsideration under AIT No: HR/00253/2004, concluded that the adjudicator had made no material error of law.
3. Adjudicator: In June 2004, dismissed the appellant’s human rights appeal against refusal of humanitarian protection, accepting exceptionality but finding that the Article 3 threshold was not met.