MM (Sri Lanka) v Secretary of State for the Home Department

Where a tribunal decision contains conceded material errors of law in fact-sensitive asylum findings, the proper course may be to set it aside and remit the appeal for a fresh hearing. An appellate court should not make country-specific factual findings without the primary evidence, particularly where current country guidance and further evidence must be considered by the tribunal.

The court should also decline to decide an issue that is academic to the disposal of the appeal and has not been assessed below. Any ruling in those circumstances would be obiter. The tribunal should first consider the issue alongside the relevant facts, which may themselves make it unnecessary.

The appellant, a Sri Lankan national, appealed against an Upper Tribunal determination of 20 June 2012 which had dismissed his asylum appeal after an earlier First-tier Tribunal determination had been set aside for error of law.

The Secretary of State conceded that the Upper Tribunal had made material errors concerning the significance of the appellant's airport departure, the consequences of a bribery-secured release, and the treatment of a court summons. The parties differed over whether the Court of Appeal should give wider guidance, including on documentary evidence and article 13 ECHR in light of Singh v Belgium [2012] ECHR 362. The central issue was whether the appeal should be remitted for reconsideration under current country guidance, including GJ and Others [2013] UKUT 00319 (IAC), or whether the court should determine those wider questions.

1. Appeal allowed on grounds one to three; remitted to the Upper Tribunal for a rehearing. Richards LJ, with whom Patten and Gloster LJJ agreed, accepted the Secretary of State's concessions that the Upper Tribunal's errors were material.

2. The Upper Tribunal had erred in treating departure through Colombo airport as showing that the Sri Lankan authorities had no interest in the appellant. It had also erred in treating a bribery-secured release as necessarily eradicating any official detention record. Its failure to put to the appellant the point that the summons did not refer to a statutory provision was also a material error.

3. The court declined to make the requested wider factual findings about airport checks, detention records, bribery, stop lists, or the usual contents of a summons. It did not have the primary evidence and could not appropriately make those findings. They were for the Upper Tribunal on rehearing, in the light of the prevailing country guidance in GJ and Others [2013] UKUT 00319 (IAC) and any other relevant evidence.

4. The fourth ground, concerning the effect of Singh v Belgium [2012] ECHR 362 on the approach in Tanveer Ahmed [2002] UK IAT 00439, was academic because the determination had to be set aside in any event. The issue had not been argued below and required factual assessment, including whether and how documentary verification could properly be undertaken. A ruling by the Court of Appeal would necessarily have been obiter. The Upper Tribunal could consider the matter if necessary at the rehearing.

• Court of Appeal (Civil Division): In this judgment, [2014] EWCA Civ 36, the court allowed the appeal on grounds one to three, set aside the Upper Tribunal determination, and remitted the case for a rehearing.

• Upper Tribunal: Upper Tribunal Judge Spencer dismissed the appellant's appeal by a determination dated 20 June 2012.

• Upper Tribunal: An earlier determination of the First-tier Tribunal was set aside for error of law, leading to the fresh Upper Tribunal hearing.

• First-tier Tribunal: The appellant's appeal against refusal of asylum was dismissed.