MQ (Afghanistan) v Secretary of State for the Home Department

On an asylum reconsideration, a tribunal must engage with material evidence capable of affecting the assessment of risk. Failure to consider evidence supporting a claimed connection between persecution and a powerful actor may undermine conclusions about the claimant’s risk and related events. Where an order preserves credibility findings, the tribunal must accept the claimant’s credible account of what he was told and must not summarily dismiss it as speculation. The scope of reconsideration and the factual basis on which it proceeds should be settled in advance or agreed. Failure to observe those requirements is an error of law requiring the appeal to be allowed and the matter remitted.

The appellant, an Afghan citizen, appealed against the refusal of his application for refugee status, human rights protection and humanitarian protection. His claim included a risk from powerful political figures connected with his father’s execution, the killing of his brother and an attack on a shop associated with him.

An Immigration Judge, IJ Parker, dismissed the original appeal. Reconsideration was ordered after concerns about material errors of law. On second-stage reconsideration, IJ McDade dismissed the appeal again. The appellant challenged that decision on the grounds that material evidence had not been considered, preserved credibility findings had not been respected, and the tribunal had exceeded the permitted scope of reconsideration. The central issue was whether those matters amounted to errors of law requiring a further reconsideration.

Appeal allowed and case remitted. The second-stage reconsideration was to be heard by a Senior Immigration Judge, with the precise factual basis for reconsideration determined in advance or agreed.

1. Material evidence. The Amnesty International statement and the report of Dr Giustozzi contained evidence capable of supporting the appellant’s case that his father might have been executed to prevent him implicating powerful political figures. The failure to consider that evidence was a material error of law. It also affected the conclusions that the father had received proper judicial process, that Sayyaf had no connection with the execution, and that the appellant and his brother were of no interest to the authorities.
2. Consequences for the brother’s killing. The omitted evidence was relevant to the circumstances in which the appellant’s elder brother was killed and documents and photographs were taken from the family home. The tribunal therefore could not dismiss the appellant’s account of those events by treating it as mere speculation without addressing the material evidence.
3. Preserved credibility findings. DIJ Olson’s order provided that the credibility findings stood while the remaining issues were to be decided. IJ McDade was consequently required to accept as credible the appellant’s account of what he had been told about the raid and enquiries concerning him and his younger brother. The account could not be summarily rejected while the preserved credibility finding remained in force. The same principle applied to the credible account that the appellant’s business partner had been beaten to disclose the appellant’s whereabouts.
4. Scope of reconsideration. The earlier decision and the reconsideration order had not satisfactorily clarified which factual matters had been found. That ambiguity had to be resolved before the reconsideration proceeded. The factual basis was to be determined in advance or agreed consistently with DK (Serbia) & Ors v Secretary of State for the Home Department [2006] EWCA Civ 1747; [2007] 2 All ER 483, and with DIJ Olson’s order.

1. Court of Appeal (Civil Division): In [2009] EWCA Civ 61, the appeal was allowed and the matter remitted to the Asylum and Immigration Tribunal for second-stage reconsideration, preferably before a Senior Immigration Judge.
2. Asylum and Immigration Tribunal: IJ McDade, on second-stage reconsideration, dismissed the appellant’s appeal against the refusal of refugee, human rights and humanitarian protection.
3. Earlier tribunal proceedings: IJ Parker had dismissed the original appeal. Reconsideration was subsequently ordered by SIJ Chalkley, and DIJ Olson directed that the credibility findings should stand while the other issues were reconsidered.