NG (Iran) v Secretary of State for the Home Department

On reconsideration of an immigration appeal, the second decision-maker must ordinarily proceed on the original findings of fact, save where they were affected by an error of law, new evidence, or exceptional circumstances. That constraint does not require adherence to the original decision-maker’s assessment of the weight or relevance of particular matters where the original reasoning has been found legally inadequate. A recent application to settle may therefore be weighed when deciding whether a visitor intends to leave, even though an earlier tribunal had given it no weight. A failure to flag a possible change of emphasis will not invalidate the decision where the issue was fully canvassed and no different submission or evidence could realistically have affected the outcome.

The appellant, resident in Iran, applied for entry clearance as a visitor. The application was refused because she had not established under paragraph 41 of the Immigration Rules that she intended to leave the United Kingdom at the end of her visit.

An immigration judge dismissed her appeal. On reconsideration, another immigration judge found a material error of law in the first decision’s inadequate reasons, but reconsidered the matter on the existing evidence and reached the same outcome. The appellant appealed to the Court of Appeal, alleging that the second judge had impermissibly departed from the first judge’s factual findings and had acted unfairly by giving weight to a previous settlement application. The central issue was the proper scope of reconsideration.

1. Appeal dismissed. The court held unanimously that Immigration Judge Cruthers had acted consistently with DK (Serbia) [2006] EWCA Civ 1747. He accepted the original judge’s factual findings and did not make materially incompatible findings.
2. The principle that reconsideration should ordinarily proceed on the original findings does not bind the second judge to the original assessment of the weight to be given to particular facts. That was especially so where the first decision’s reasoning had been found legally inadequate. The settlement application was not irrelevant as a matter of law. It had a rational bearing on the appellant’s intention to leave and was properly treated as one factor in the overall assessment.
3. The first judge’s reliance on AA & Ors (Sectors Based Work: general principles) (Bangladesh) [2006] UKAIT 00026 was misconceived. That decision did not establish a general rule that a previous application or possible future unlawful conduct must be disregarded. Its observation concerned an impermissible assumption arising merely from the opportunity to work under a particular scheme. It did not preclude consideration of a recent, express application to settle.
4. The second judge’s reasons were legally adequate. The favourable matters, including study, employment, engagement and the mother’s circumstances, were weighed against the settlement application and other factors undermining the claimed intention to leave. The conclusion was open on the evidence.
5. There was no material procedural unfairness in the failure to give further notice that weight might be placed on the settlement application. The issue had been fully canvassed, and no additional submission or evidence was identified that could have affected the result. The formal order was: appeal dismissed.

• Court of Appeal (Civil Division): The appeal from Immigration Judge Cruthers’s reconsideration decision was dismissed: [2008] EWCA Civ 312.
• Asylum and Immigration Tribunal: Immigration Judge Shaerf dismissed the appellant’s appeal against refusal of visitor entry clearance. On reconsideration, Immigration Judge Cruthers found inadequate reasons in the first decision, reconsidered the appeal on the available evidence, and dismissed it again.