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

An appellate tribunal may overturn an immigration judge’s decision only where it identifies a material error of law. An unsatisfactory determination, typographical slips, or incomplete reasoning do not by themselves establish such an error.

Findings of fact may be based on the evidence before the immigration judge. The appellate court should not uphold an overturned decision on a new factual ground that was not raised or explored at the original hearing. Evidence supported the finding that an unaccompanied minor would face severe harm on return.

An Afghan national claimed asylum after arriving in the United Kingdom. The immigration judge accepted that he was a minor who had lost contact with his family in Afghanistan and concluded, on the objective evidence, that he would face severe harm on return.

On reconsideration, Senior Immigration Judge Mather held that the immigration judge had materially misinterpreted LQ (Afghanistan) v Secretary of State for the Home Department [2008] UKAIT 00005. The decision was remitted for a fresh decision. The appellant appealed, arguing that the original decision contained no material error of law. The central issue was whether the Senior Immigration Judge was entitled to overturn it.

1. Appeal allowed. The decision of the Senior Immigration Judge was reversed and the immigration judge’s decision was restored.
2. The immigration judge had not treated LQ (Afghanistan) as a country-guidance decision. The judge had made findings on the evidence in the present case and had observed that those findings coincided with the findings in LQ.
3. The objective evidence concerning the risks faced by unaccompanied and separated children in Afghanistan entitled the immigration judge to find that this minor, who had lost contact with all family members, faced severe harm on return. The finding was supported by the evidence and did not result from a misreading of LQ.
4. The Court rejected new grounds concerning the appellant’s alleged ability to trace his family through the Red Cross and the reference to a maternal uncle. Those matters had not formed part of the Senior Immigration Judge’s reasons, had not been properly explored in evidence, or resulted from an apparent slip in the original determination.
5. Although the immigration judge’s determination was unsatisfactory and contained errors of expression, it contained no material error of law. The Senior Immigration Judge therefore had no basis to overturn it. The Court expressed no view on the correctness of LQ, which remained open for determination on another occasion.

• Court of Appeal (Civil Division): allowed the appeal, reversed the Senior Immigration Judge’s decision and restored the immigration judge’s decision.
• Asylum and Immigration Tribunal: Immigration Judge Clarke allowed the appellant’s asylum claim. On reconsideration, Senior Immigration Judge Mather held that the decision contained a material error of law and remitted the matter for a fresh decision.