LS (Uzbekistan) v Secretary of State for the Home Department

On a statutory reconsideration under the Nationality, Immigration and Asylum Act 2002, the tribunal has jurisdiction to reopen any aspect of the appeal, including findings not infected by an error of law. That jurisdiction is distinct from its ordinary case-management practice: unaffected findings should normally stand, and reconsideration is not a rehearing. Where return risk depends on possible prosecution for unauthorised departure, the tribunal must assess the real risk of charge and the consequences, including possible ill-treatment. An authority concerning Uzbek returnees cannot be applied without considering material differences in the manner of departure and possession of a passport or travel document.

The appellant, an Uzbek national and former airline stewardess, claimed asylum and humanitarian protection on the basis of alleged persecution as a lesbian and risk arising from unauthorised departure and an asylum claim abroad. An Immigration Judge initially accepted her sexual orientation but rejected her account of persecution. On reconsideration, a differently constituted tribunal reopened the issue, rejected the account including the claimed sexual orientation, and dismissed the appeal.

The appellant challenged the tribunal’s jurisdiction to reopen the factual issue, the rationality of its credibility findings, and its assessment of return risk. Permission was granted on the jurisdiction and return-risk grounds, but refused on irrationality. The central issues were the scope of statutory reconsideration and whether the tribunal had adequately assessed the risk arising from the appellant’s departure from Uzbekistan.

Appeal allowed and remitted. The matter was remitted to the tribunal for reconsideration of the risk of ill-treatment on return alone.

1. Scope of reconsideration. Section 103A of the Nationality, Immigration and Asylum Act 2002 does not restrict reconsideration to findings affected by an error of law. Reconsideration is of the appeal as a whole and results in a fresh decision under rule 31(3) of the Asylum and Immigration Tribunal (Procedure) Rules 2005. The tribunal therefore has jurisdiction to reopen any aspect of the case, although that jurisdiction must be exercised carefully.
2. Ordinary practice. Findings unaffected by the identified error should normally be retained. Reconsideration is not a rehearing. Fairness, efficiency and the need to avoid inconsistent findings support that approach, as explained in Mukarkar v Secretary of State for the Home Department [2006] EWCA Civ 1045, DK (Serbia) v Secretary of State for the Home Department [2006] EWCA Civ 1747 and HF (Algeria) v Secretary of State for the Home Department [2007] EWCA Civ 445. That practice is not a jurisdictional limitation. Here, the appellant’s sexual orientation had not been a live issue before the first Immigration Judge and his acceptance of it was based on concession rather than analysis.
3. Credibility challenge. The tribunal is the primary fact-finder. An appellate court cannot intervene merely because another decision-maker might assess the evidence or credibility differently. Intervention is justified only where the evidence could not support the finding, or no reasonable tribunal could have reached it. The appellant had no real prospect of establishing that threshold.
4. Risk on return. The expert evidence that article 223 of the Uzbekistani Criminal Code made unauthorised departure an offence was not rejected. The tribunal should have considered expressly whether the appellant faced a real risk of being charged and, if so, the consequences, including possible ill-treatment by the police. OM (Returning Citizens) CG [2007] UKAIT 00045 was not automatically applicable because the appellant’s manner of departure and apparent lack of a passport differed materially from the circumstances considered there.

1. Court of Appeal (Civil Division): Allowed the appeal and remitted the return-risk issue to the tribunal for reconsideration.
2. Asylum and Immigration Tribunal: On reconsideration, dismissed the appellant’s asylum and humanitarian protection claim.