VH (Malawi) v Secretary of State for the Home Department

On a second-stage reconsideration, a tribunal must preserve findings unaffected by an identified error of law, but may revisit future-risk findings where new evidence materially bears on them. A general remittal order is not narrowed by an agreed statement of reasons unless the order itself imposes that limit.

A tribunal may locate and consider a related tribunal determination, including evidence about personal circumstances, provided it discloses the material and gives the parties a fair opportunity to respond. The weight and rational evaluation of that evidence are ordinarily matters for the specialist tribunal.

Loss of custody alone does not necessarily breach Article 8, whereas loss of both custody and contact would. The appeal was dismissed by a majority.

The appellant, a Malawian citizen, claimed asylum after separating from her husband. She feared that, on return, her husband or his family would obtain custody of her children under patrilineal customary law and deny her contact with them. She relied on refugee protection and Article 8 rights.

Earlier tribunal decisions had dismissed her appeal, and a Court of Appeal order made by consent remitted the case for reconsideration. A subsequent panel of senior immigration judges conducted what it described as a complete rehearing, considered evidence from the husband’s separate successful Article 8 appeal, and again dismissed the appeal.

The issues before the Court of Appeal included the scope of the remittal, the use of the husband’s determination, the panel’s treatment of credibility and expert evidence, and the risk of a breach of Article 8 on return.

Majority (Richards and Longmore LJJ): The appeal was dismissed.

1. Scope of remittal. The Court of Appeal has power to limit the ambit of a remittal, as recognised in ND (Guinea) v Secretary of State for the Home Department [2008] EWCA Civ 458. Here, however, the order merely remitted the case. The agreed statement of reasons was not part of the order and did not impose a jurisdictional limitation.
2. Reconsideration. Under the principles in DK (Serbia) and Others v SSHD [2006] EWCA Civ 1747, reconsideration is not a rehearing. Findings unaffected by an error of law should ordinarily stand, subject to new evidence or exceptional circumstances. The panel preserved the appellant’s historical credibility findings but was entitled to reassess future risk after admitting additional evidence. Any failure to define the parameters at the outset was immaterial in practice.
3. Related tribunal determination. The principle in Gnanavarathan v Special Adjudicator [1995] Imm AR 64 was not confined to country-condition evidence. The panel could inspect tribunal records and consider the husband’s determination, provided it disclosed it and allowed a fair opportunity to respond. The panel was entitled to consider it even though the Presenting Officer took a neutral position. Its evaluation of the evidence was rational and did not involve impermissible substitution of judicial judgment under the Wednesbury standard.
4. Fact-finding and experts. The panel rationally distinguished the appellant’s accepted historical account from disputed evidence about future risk. It was entitled to reject the new emails and sister’s evidence, and to prefer the evidence as a whole over the experts’ opinions. Describing particular expert inferences as speculative was permissible where supported by identified evidential deficiencies. The panel accepted that loss of both custody and contact would infringe Article 8, but found no reasonable likelihood of that occurring.

Dissent (Pill LJ): The agreed statement of reasons should ordinarily constrain a general remittal order. More importantly, the tribunal’s reliance on the husband’s untested evidence was unfair and legally erroneous. The husband was a serial liar with an incentive to distance himself from the appellant and children, and his evidence was used to discredit otherwise credible evidence of risk and expert opinion. Pill LJ would have allowed the appeal and remitted the case.

• Court of Appeal (Civil Division) — [2009] EWCA Civ 645: by majority dismissed the appeal from the tribunal’s determination dated 29 September 2008; Pill LJ would have allowed the appeal and ordered a remittal.
• Court of Appeal — 10 April 2008: by consent remitted the earlier appeal to the tribunal.
• Asylum and Immigration Tribunal — after earlier dismissals and reconsiderations, a panel of senior immigration judges dismissed the appellant’s appeal in a determination dated 29 September 2008.