NR (Jamaica) v Secretary of State for the Home Department

An immigration tribunal has a wide discretion to permit the withdrawal of a concession where there is good reason in all the circumstances. Its objective is a fair and just determination of the real issues on their merits. Prejudice, timing, the nature of the concession and bad faith are material considerations, but no single factor is conclusive.

When sexual orientation is material to protection from removal, the tribunal must adequately assess the person’s orientation at the time of the hearing. A history of exclusively same-sex relationships may be cogent evidence that earlier experimentation has developed into a sole or predominant orientation. The assessment of risk on return must reflect properly reasoned findings about present sexuality and likely behaviour in the receiving country.

The appellant, a Jamaican national who had lived in the United Kingdom since childhood, appealed against the Asylum and Immigration Tribunal’s dismissal of her challenge to a deportation order. The Tribunal had permitted the Secretary of State to withdraw concessions concerning her lesbian identity and the risk faced by lesbians in Jamaica. It then found that she lacked a lesbian identity and that her relationships had involved experimentation or an attempt to strengthen her protection claim.

The Secretary of State accepted that the Tribunal had erred by failing to assess the risk arising from the appellant’s sexual profile and the conduct which could reasonably be expected of her in Jamaica. The remaining questions were whether the concessions had lawfully been withdrawn and whether the Tribunal’s findings about her present sexual identity could stand or should be reconsidered on remittal.

1. The appeal was allowed on the second ground and the case remitted for a fresh determination of the appellant’s sexuality and the resulting risk on return to Jamaica. The first ground, concerning withdrawal of the Secretary of State’s concessions, was dismissed.

2. Per Goldring LJ, with whom Lloyd and Mummery LJJ agreed, the Tribunal had a wide discretion to permit the withdrawal of a concession where there was good reason in all the circumstances. Its task was to achieve a fair and just result by enabling the real areas of dispute to be determined on their merits. Prejudice was significant, as was its absence, but absence of prejudice did not make permission automatic. Bad faith would almost certainly defeat an application.

3. The Tribunal did not have to review the Secretary of State’s litigation decision as though it were an administrative decision requiring public law justification. Nor could withdrawal occur only where something new had arisen. Withdrawal without prior notice did not oblige the Secretary of State to seek an adjournment. The first concession was properly withdrawn so that the Tribunal could assess the actual risk in Jamaica. The second was also properly withdrawn because the Tribunal could reject the allegation of bad faith, the appellant accepted that she had suffered no prejudice, and she declined an offered adjournment.

4. The Tribunal’s assessment of sexual identity was inadequately reasoned. Four years of exclusively lesbian relationships was, on its face, cogent evidence of a lesbian or predominantly lesbian identity. The Tribunal had not adequately considered whether earlier experimentation had developed into the appellant’s sole or predominant orientation. The material question was her sexual orientation at the time of the hearing.

5. A narrow remittal preserving the existing findings would prevent a fair assessment of how the appellant could reasonably be expected to behave in Jamaica. The fresh Tribunal was therefore required to determine her sexuality afresh and, in light of those findings, assess the risk on return.

1. Court of Appeal (Civil Division): In [2009] EWCA Civ 856, allowed the appeal on the sexual-identity ground and remitted the case for a fresh assessment of sexuality and risk on return. It dismissed the ground challenging withdrawal of the concessions.

2. Asylum and Immigration Tribunal: On reconsideration, permitted the Secretary of State to withdraw the concessions, found that the appellant lacked a lesbian identity, and dismissed her appeal against deportation. Its decision was promulgated on 19 February 2009.

3. Earlier Asylum and Immigration Tribunal proceedings: The first Tribunal dismissed the appeal on 19 December 2007. Reconsideration was ordered. A two-person panel could not agree, resulting in a rehearing before a fresh panel.