AAZA (Yemen) v Secretary of State for the Home Department

In an asylum or humanitarian protection appeal, whether return to a proposed third country would expose a claimant to persecution, serious harm or refoulement is ordinarily a fact-sensitive question for the First-tier Tribunal. An appellate court should not disturb an adequately reasoned assessment merely because the claimant disagrees with it. The statutory safe-third-country mechanisms in the Asylum and Immigration (Treatment of Claimants) Act 2004 and the Nationality, Immigration and Asylum Act 2002 have specified procedural effects and do not determine the merits where they have not been invoked. A claimant alleging that return is impossible for lack of a visa or travel document will normally be expected to make bona fide and reasonably practicable enquiries. Points not raised below are generally excluded on appeal unless they are Robinson obvious.

The appellant, a Yemeni national who had lived in China from infancy, sought asylum and humanitarian protection in the United Kingdom. The Secretary of State accepted that return to Yemen would expose him to serious harm, but proposed China as an alternative country of return. The First-tier Tribunal dismissed the asylum claim, allowed the humanitarian protection appeal concerning Yemen, and dismissed the protection and human rights claims concerning China.

The Upper Tribunal found no material error of law and dismissed the appeal. On a second appeal, the appellant challenged the findings that China was safe and a viable country of return, the approach to visas and residence permits, the risk of indirect refoulement, and the compatibility of paragraph 339C of the Immigration Rules with the Qualification Directive.

1. Appeal dismissed. The Court of Appeal’s task was to decide whether the First-tier Tribunal had made an error of law on the evidence before it.
2. Risk in China. Whether the appellant faced a reasonably likely risk of persecution or serious harm on return was a question of fact for the First-tier Tribunal. Judge O’Hanlon gave adequate reasons based on the appellant’s evidence. Disagreement with those findings did not establish an error of law.
3. Safe third country. The statutory safe-third-country concept in Schedule 3 to the Asylum and Immigration (Treatment of Claimants) Act 2004, and the safe-third-State mechanism in section 80B of the Nationality, Immigration and Asylum Act 2002, operated for specified procedural purposes. They were immaterial because the Secretary of State had neither relied on the relevant certification provisions nor declared the claim inadmissible. The reasoning in RR was distinguished because it concerned the statutory concept, although the appellant plainly had a real connection with China through his long residence there.
4. Documents for return. Applying HF (Iraq) [2013] EWCA Civ 1276 and MA (Ethiopia) [2009] EWCA Civ 289, an appellant alleging that entry would be refused should normally make a bona fide application and take all reasonably practicable steps to obtain the necessary documents. The point could not succeed as a free-standing challenge in the absence of a finding of risk in China.
5. New points. The indirect-refoulement argument had not been raised before either tribunal. The Court adopted the approach in Lata [2023] UKUT 00163 (IAC): unless a point is Robinson obvious, a decision cannot ordinarily be challenged for failing to address it. The point was not obvious and its exclusion caused no injustice. Fresh evidence could be raised through reconsideration under paragraph 353 of the Immigration Rules.
6. Abunar point. Permission was refused to raise for the first time the argument identified in Abunar [2018] UKUT 00387 (IAC). It was unnecessary to determine the underlying EU-law submissions.

• Court of Appeal (Civil Division). The second appeal was dismissed.
• Upper Tribunal (Immigration and Asylum Chamber). Upper Tribunal Judge Hanson found no material error of law in the First-tier Tribunal’s decision and dismissed the appeal.
• First-tier Tribunal. Judge O’Hanlon dismissed the asylum appeal, allowed the humanitarian protection appeal concerning Yemen, and dismissed the humanitarian protection and human rights claims concerning China.