AM (Pakistan) v Secretary of State for the Home Department

An appellate tribunal may interfere with an immigration determination only for an error of law. A possible error in an asylum assessment does not necessarily invalidate a separate humanitarian-protection conclusion under paragraph 339C that a claimant faces serious harm from identified family members and cannot obtain state protection. Where neither party asks an immigration judge to view video evidence or seeks an adjournment, proceeding without viewing it is not, by itself, an error of law. Material emerging only because an appeal was pursued cannot displace a sound first-instance determination where no qualifying error of law is established.

Immigration Judge Elek dismissed AM’s asylum appeal but allowed her appeal on humanitarian-protection grounds under paragraph 339C of the Immigration Rules. She found a real risk of serious harm from AM’s brothers and brother-in-law and that state protection was unavailable. The Secretary of State appealed to the Upper Tribunal, which found errors of law arising from an apparent inconsistency in the first-instance reasoning and the failure to view a video central to AM’s account. After viewing the video, the Upper Tribunal rejected the claim. AM appealed to the Court of Appeal, which considered whether either alleged error justified appellate interference.

Appeal allowed. The determination of Immigration Judge Elek was restored.

1. The supposed inconsistency between the asylum and humanitarian-protection findings was not established. The asylum reasoning concerned protection from Sharia law following the Women’s Protection Act. The humanitarian-protection finding concerned the distinct risk of death or serious harm from identified male family members. Even if there had been an error in the asylum assessment, that did not invalidate the separate conclusion under paragraph 339C of the Immigration Rules.
2. It was not an error of law for the immigration judge to proceed without viewing the video. Neither party had asked the tribunal to view it or sought an adjournment. The parties therefore accepted the risk that the judge might make an adverse finding about its contents. The judge was entitled to find that AM appeared in the video.
3. The Secretary of State’s argument that AM had misrepresented the video as clandestine was a new case based on material obtained during the Upper Tribunal appeal. There was no proper basis for that appeal because the first-instance determination contained no error of law. The later material could not properly be relied upon to displace that determination.

• Upper Tribunal (Immigration and Asylum Chamber) — SIJ McKee found errors of law, viewed the video, re-made the decision and dismissed AM’s appeal.
• Court of Appeal (Civil Division) — On appeal, the court rejected both alleged errors of law, allowed the appeal and restored the first-instance determination: [2011] EWCA Civ 872.