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

A first-stage reconsideration should ordinarily be confined to the grounds on which it was ordered, which will normally reflect the grounds advanced in the application. Departure is exceptional. It must be justified consistently with fairness and efficient procedure, particularly where reopening an issue would give a party an unjustified second opportunity to challenge a finding.

A favourable credibility finding is the starting point, but it does not by itself establish a prospective risk of Convention persecution. The tribunal must make sufficient findings from the accepted evidence and explain why those facts establish both a real risk on return and the relevant Convention reason. An authority’s interest in weapons or information about weapons does not, without more, establish imputed political opinion or persecution.

The appellant, a young Afghan national, appealed against a determination of the Asylum and Immigration Tribunal dismissing his asylum appeal following reconsideration. An earlier determination had accepted his account that, after his father’s death, the Afghan authorities targeted him and his mother because they believed the family knew the location of weapons associated with his father. It allowed his appeal on the basis of feared persecution for imputed political opinion.

Reconsideration was initially ordered on the narrow question whether the earlier judge had adequately explained the finding of current risk on return. At the first-stage reconsideration, however, the tribunal reopened all issues except age, including credibility. The central questions were whether that expansion was lawful and whether the original determination contained an error of law concerning future risk and Convention reason.

Disposition

1. Appeal allowed. By a majority, the court set aside the 2009 determination and remitted the case to the Tribunal for a further reconsideration confined to risk on return.

2. The normal practice is that reconsideration is limited to the grounds on which it was ordered, normally those advanced in the application. Although that restriction is a matter of practice rather than jurisdiction, departure should be exceptional. The first-stage tribunal erred by reopening credibility and directing that all issues, save age, were at large. The original credibility findings were sufficiently reasoned and could not be reopened merely to give the respondent a further opportunity to challenge them.

3. Nevertheless, the majority held that the 2008 determination contained a material error of law on future risk. Credibility was a necessary starting point, but the tribunal had to identify the factual findings flowing from the accepted account and assess whether they established a real risk of persecution for a Convention reason.

4. The accepted fact that the authorities sought guns, or information about guns, did not by itself show that they imputed a political opinion to the appellant or would persecute him. The determination did not adequately explain that connection. The Tribunal must therefore reassess risk on the basis of the existing credibility findings, subject to a fair assessment of any further evidence relevant to risk.

Separate reasoning

Lord Justice Sullivan would have restored the 2008 determination. In his view, read fairly and in context, the findings of recent targeting by the authorities sufficiently explained continuing risk because no material lapse of time, change of circumstances, or non-persecutory character of the targeting had been put in issue.

• Court of Appeal (Civil Division) — By a majority, allowed the appeal, set aside the 2009 determination, and remitted the assessment of risk on return to the Tribunal. Lord Justice Sullivan would have restored the 2008 determination.

• Asylum and Immigration Tribunal — On reconsideration, the 2009 determination dismissed the appellant’s asylum appeal after all issues other than age had been reopened.

• Asylum and Immigration Tribunal — The 2008 determination allowed the appeal, accepting the appellant’s account and finding a risk of Convention persecution on return.