NH (Vietnam) v Secretary of State for the Home Department

Where an asylum appeal has not been assessed under every Convention right materially raised by the facts, the appropriate course is ordinarily remission to the specialist tribunal. The Court of Appeal should avoid deciding disputed issues of Convention breach or the applicable asylum test on hypothetical or incomplete findings, particularly where the tribunal has not evaluated the facts through the relevant Convention provisions.

Facts capable of engaging Articles 4.2, 5 and 9 may be relied on across those provisions. Whether additional grounds should be admitted may depend on the tribunal’s procedural rules and the Robinson obviousness doctrine. The tribunal must determine the scope of the reconsideration.

The appellant, a Vietnamese national and practising member of the Quan Yin religion, claimed asylum after arrests, ill-treatment, detention in a labour camp and compelled labour in Vietnam. Her claim was initially rejected, but a second adjudicator accepted her credibility and rejected the claim on the basis that the treatment did not amount to persecution contrary to Article 3.

The Asylum and Immigration Tribunal again rejected the claim, having considered it only under Article 3 although Article 9 had been raised. On appeal, the appellant sought a decision under Article 5 and alternatively remission for reconsideration under Articles 4.2, 5 and 9. The central issues were the proper course where relevant Convention claims had not been addressed, whether the additional grounds were open under Rule 62(7), and whether the facts made those grounds Robinson obvious.

1. Appeal allowed and remitted. The Court remitted the matter to the Asylum and Immigration Tribunal for full reconsideration. The tribunal itself was to determine the ultimate scope of that reconsideration.
2. The tribunal had erred by addressing the asylum claim only through Article 3 and failing to consider Article 9, which was in issue. The Secretary of State accepted that the Article 9 claim had to be reconsidered.
3. Although the facts relied on for Article 9 could also engage Article 4.2 and Article 5, the Court declined to decide the Article 5 breach, the applicable asylum test for that Article, or the merits of the Article 4.2 and Article 9 claims. The existing findings were incomplete, and the tribunal was the specialist fact-finding body.
4. For Article 9, the Court treated the approach discussed in R (Ullah) v Special Adjudicator [2004] 2 AC 323 and applied in the Article 8 context in EM (Lebanon) v SSHD [2006] EWCA Civ 1531 as requiring consideration of whether there had been a complete denial of the relevant guarantee, rather than merely a bad or gross breach. The Court did not determine whether that approach governed Articles 4.2 and 5.
5. The facts and submissions before the tribunal engaged Articles 4.2 and 5. However, before further factual reconsideration, the Court could not decide that the threshold of Robinson obviousness had been reached. The developing learning, including AM (Serbia) v SSHD [2007] EWCA Civ 16, and R v SSHD ex parte Robinson [1998] QB 929 were relevant. The tribunal was to decide whether to permit the additional grounds under Rule 62(7) of the Asylum and Immigration Tribunal Procedure Rules 2005, taking account of the common factual basis and the parties’ submissions.
6. It was therefore gravely unsatisfactory to determine the appeal on hypothetical or inadequate facts while the applicable law remained unsettled. Reconsideration could take place before or after the House of Lords’ decision in EM, as the parties and tribunal considered appropriate.

• Asylum and Immigration Tribunal: On 20 June 2006, the Tribunal rejected the asylum claim after considering the treatment under Article 3, but failed to address the Article 9 claim.
• Court of Appeal (Civil Division): In [2008] EWCA Civ 338, the appeal was allowed and the matter remitted for full reconsideration, with the tribunal to determine the scope of the remission.