FA (Eritrea) v Secretary of State for the Home Department

An immigration tribunal’s decision is not ordinarily open to an error-of-law challenge based on a point raised for the first time on appeal, particularly where its factual basis was not established below. A policy breach may be relevant on remittal when separate errors have already been identified, but it cannot itself found the challenge. A decision remains sustainable where other cogent reasons mean that the outcome would not realistically have differed. Issues available on substantive reconsideration must be raised there. They cannot be reserved for the Court of Appeal unless the tribunal failed to address a point obvious in the Robinson sense. An alternative Article 8 assessment disclosed no material error and no disproportionate result.

The applicant, an Eritrean national who arrived in the United Kingdom as an unaccompanied minor, claimed asylum. Her claim was refused, although she received discretionary leave until she reached 18. An immigration judge dismissed her appeals on asylum, humanitarian protection and human-rights grounds. Reconsideration was ordered on the broad issue of military service.

At the second stage of reconsideration, a panel found that she had left Eritrea legally and dismissed her appeals. The renewed application for permission challenged the treatment of an inconsistency in her screening interview, alleged breach of a policy requiring a responsible adult to be present when interviewing a minor, and the first immigration judge’s Article 8 conclusion. The central issues were whether those points could be raised for the first time on appeal and whether any error was material.

The renewed application for permission to appeal was refused.

1. The panel was entitled to take the inconsistency in the applicant’s screening interview into account. Although there were substantial arguments on the merits, it was not unreasonable for the panel to reject the explanation given.
2. The alleged breach of policy concerning the screening interview could not itself found an error-of-law challenge. The point had not been raised below, and neither the factual circumstances of the interview nor the existence or application of the policy had been explored by the tribunal. AA (Afghanistan) [2007] EWCA Civ 12 was not on all fours. In that case, separate errors of law had already been identified and the policy issue arose only on the question of remittal.
3. In any event, the tribunal’s reasoning extended beyond the inconsistency. It had a series of cogent reasons sufficient to sustain its conclusion, and there was no realistic possibility that the outcome would have differed even if the policy point had been raised and established.
4. The Article 8 ground was also raised too late. Any issue could have been raised during substantive reconsideration, even though it was not a ground on which reconsideration had been ordered. That was clear from DK (Serbia) [22006] EWCA Civ 1747. The authority did not permit grounds omitted at both stages of reconsideration to be raised for the first time in the Court of Appeal. The tribunal had not erred in law by failing to consider a point that was neither raised nor obvious in the Robinson sense.
5. Alternatively, the Article 8 challenge had no realistic prospect of success. The errors in the first immigration judge’s reasoning did not undermine the conclusion, and requiring return to Eritrea was not disproportionate in the circumstances.

Order: Application refused.

• Court of Appeal (Civil Division): Pill LJ refused permission on the papers. On renewal, Lord Justice Richards refused the application.
• Asylum and Immigration Tribunal (AIT No AS/00266/2007): at the second stage of reconsideration, a panel of two immigration judges made adverse findings and dismissed the appeals. The tribunal had refused permission to appeal.
• First immigration judge: dismissed the appeals on asylum, humanitarian protection and human-rights grounds. Reconsideration was ordered on the broad issue of military service after an error of law was identified.