MY (Turkey) v Secretary of State for the Home Department

On a partial reconsideration, an immigration judge must follow the issues and directions identified by the reconsideration tribunal. Factual findings unaffected by the identified error of law must stand unless the case is most exceptional or new evidence or material, admitted under the usual principles, justifies a challenge. Evidence that a witness has lied about later events does not, without more, establish that earlier evidence accepted by another judge was false. The judge must assess risk on return and internal relocation from the preserved findings and permitted evidence. An issue outside the reconsideration directions, including the reliability of unchallenged medical evidence, should not be reopened.

The appellant, a Turkish citizen of Kurdish ethnicity and a supporter of DEHAP, claimed asylum after alleging repeated detention and ill-treatment by the Turkish authorities. An immigration judge accepted much of his account, including six instances of ill-treatment, but dismissed the appeal because internal relocation was available.

After a second-stage reconsideration was ordered, the reconsideration tribunal directed further consideration of risk on return, internal relocation and the implications of DEHAP’s dissolution. It directed that the positive findings concerning past mistreatment should stand. On further reconsideration, Immigration Judge Miller rejected the appellant’s evidence about events after his departure and treated that as undermining the earlier findings. The central issue was whether that approach was permissible.

1. Appeal allowed and remitted. The order of Immigration Judge Miller was discharged. The matter was remitted to the Asylum and Immigration Tribunal for rehearing by a different immigration judge, in accordance with the reconsideration tribunal’s directions of 15 November 2006. No further evidence beyond that already admitted was permitted, although the appellant’s oral evidence could be heard.
2. On a partial reconsideration, the judge must proceed on the basis that the original decision-maker’s unaffected findings remain in place. Under the approach stated in DK (Serbia), a challenge to such findings requires either a most exceptional case or new evidence or material to which the usual principles governing reception of evidence apply.
3. The reconsideration tribunal had expressly preserved the findings of past persecution. Immigration Judge Miller was therefore required to accept those findings and consider risk on return and internal relocation in the light of the evidence before the original judge and any properly admitted new evidence. The new evidence was the appellant’s rejected account of post-departure events. It showed that his evidence on those matters was unreliable, but did not demonstrate that the earlier accepted account was clearly wrong. It was impermissible to infer that the earlier account was necessarily false.
4. The judge was not entitled to reopen the reliability of Dr Seear’s medical evidence. That evidence had not been challenged in the reconsideration proceedings, and its reliability was not an issue within the scope of the reconsideration. Its relevance and weight on matters properly before the judge could nevertheless be assessed.
5. The rehearing judge was left to evaluate the oral evidence, medical evidence and evidence concerning events in Turkey, subject to the existing directions. No further directions were necessary.

• Court of Appeal (Civil Division): [2008] EWCA Civ 477 — appeal allowed to the stated extent and remitted for rehearing.
• Asylum and Immigration Tribunal: first-stage reconsideration directed further consideration of risk on return and internal relocation, while preserving the positive findings on past mistreatment.
• Asylum and Immigration Tribunal: Immigration Judge Miller’s subsequent reconsideration rejected the appellant’s evidence about post-departure events and treated it as undermining the earlier findings; that order was discharged.