NG (Tunisia) v Secretary of state for the Home department

On a reconsideration ordered for material error of law, the tribunal may determine the case afresh where the order does not expressly preserve particular findings and the hearing proceeds on that basis. A statement that an event may have occurred is not necessarily a finding of fact, especially where the claimant’s credibility has been rejected overall. Consent to an error of law does not, without more, preserve favourable factual findings. Where credibility is reopened, a finding depending entirely on that credibility will rarely be capable of being preserved, save in an exceptional case. Reconsideration remains confined to errors of law; disagreement with factual findings or factual inference does not itself justify repeated reconsideration.

The appellant, a Tunisian national, claimed asylum and protection under the European Convention on Human Rights on the basis of alleged political persecution, arrest, torture and rape connected with Al-Nahda. Immigration Judge Mensah rejected his account as incredible but stated that he might have been arrested and tortured, possibly resulting in rape, while finding no connection with Al-Nahda or Tunisian authorities.

Senior Immigration Judge Waumsley ordered reconsideration after finding arguable errors of law, without specifying any finding to be preserved. Designated Immigration Judge Dearden reheard the appeal on the basis that all issues were open and again rejected the appellant’s credibility. The central issue was whether the earlier statement constituted a preserved finding of fact and whether the tribunal was required to retain it.

Appeal dismissed. Stanley Burnton LJ delivered the judgment, with Rix LJ agreeing. Carnwath LJ agreed and added observations.

1. Read as a whole, Immigration Judge Mensah’s statement that the appellant may have been arrested, tortured and raped was hypothetical or alternative. It was not a finding that those events had occurred. Her principal conclusion was that the appellant was incredible and that any such events were unconnected with Al-Nahda or official interest. The later tribunal was therefore not required to preserve that statement.
2. Where reconsideration is ordered, any findings intended to survive the reconsideration should be identified clearly in the order. The order in this case was general and preserved no particular factual finding. The Home Secretary’s consent to the existence of a material error of law did not amount to an express or implied agreement that favourable findings would be preserved.
3. The reconsideration hearing proceeded on the common basis that all issues were open. The appellant gave evidence again and sought to establish his credibility. In those circumstances, Designated Immigration Judge Dearden was entitled to reconsider the evidence and find that the appellant had not shown, even to the lower standard, that he had been arrested, tortured or raped. He made no error of law. The contention based on DK (Serbia) [2006] EWCA Civ 1747 was rejected in these circumstances.
4. Carnwath LJ observed that, save in an exceptional case, credibility is likely to be all of a piece, making it impossible to preserve a single favourable finding when credibility is reconsidered afresh. He also observed that reconsideration is permitted only for error of law, and that treating factual disagreement as a legal question creates an unjustified cycle of litigation.

Order: appeal dismissed.

• Court of Appeal (Civil Division): appeal from the Asylum and Immigration Tribunal dismissed.
• Asylum and Immigration Tribunal: Immigration Judge Mensah rejected the asylum claim in August 2009. Senior Immigration Judge Waumsley ordered reconsideration after finding arguable errors of law. Designated Immigration Judge Dearden reheard the matter and rejected the claim on 15 December 2009.