MA (Yemen) v Secretary of State for the Home Department

The Court of Appeal should decide legal issues on an appeal from a specialist immigration tribunal, but should remit fact-sensitive questions it is not equipped to resolve. Asylum reconsideration may require reassessment of risk, state protection and internal relocation in light of material evidence overlooked below. Delay in deciding an asylum claim is one factor in the Article 8 proportionality assessment, alongside the private life established in the United Kingdom. Whether a country-specific policy or practice granted exceptional leave, and its effect, is a factual question. Individual grants made in particular circumstances do not establish a general practice.

The appellant, a Yemeni national, appealed after the Asylum and Immigration Tribunal, on reconsideration, dismissed his appeal against refusal of asylum, related humanitarian relief and an Article 8 claim. The asylum case concerned a claimed clan blood feud, state protection and internal relocation. The Article 8 case relied on delay in deciding the asylum claim and private life established in the United Kingdom. The Secretary of State conceded that both grounds should be remitted. The central issue was whether this court should determine the merits or remit the fact-sensitive questions to the tribunal.

Lord Justice Tuckey gave the judgment, with Lord Justices Jacob and Hughes agreeing.

1. Disposition. The appeal was allowed on both the asylum and Article 8 grounds, in accordance with the Secretary of State’s concession. The matter was remitted to the AIT for reconsideration as soon as possible.
2. Asylum claim. Reconsideration was fact-specific. It required assessment of the evidence concerning risk, including the letter from the chief of the appellant’s tribe stating that the feud continued and that protection and relocation were unavailable, together with the country information. The Court of Appeal was not a specialist tribunal and was concerned with issues of law. It was therefore not equipped to determine the adequacy of state protection or the possibility of internal relocation.
3. Article 8 claim. Delay in deciding the asylum claim was one factor in the general proportionality assessment. The question whether removal was proportionate, having regard to the delay and the private life established in the United Kingdom, was fact-sensitive and had to be determined by the specialist tribunal.
4. Policy or practice. The alleged country-based policy for granting exceptional leave to remain to failed Yemeni asylum seekers was denied by the Secretary of State. The four individual letters relied upon did not establish a general practice, since each decision turned on the applicant’s particular circumstances. Whether any policy or practice existed was a factual issue for investigation before the tribunal. The Court did not determine the substantive asylum or Article 8 merits.

• Court of Appeal (Civil Division) — allowed the appeal on both grounds and remitted the matter to the AIT for reconsideration. [2008] EWCA Civ 546
• Asylum and Immigration Tribunal — on reconsideration, dismissed the appeal against the Secretary of State’s refusal of asylum, related humanitarian relief and an Article 8 claim (AIT No. AA/10981/2006).