B e f o r e :
LORD JUSTICE BROOKE,
Vice-President of the Court of Appeal, Civil Division
LORD JUSTICE CHADWICK
LORD JUSTICE MAURICE KAY
Appellant (0682) Appellant (0751)
||- and -
||SECRETARY OF STATE FOR THE HOME DEPARTMENT
||Respondent in all the appeals
(Transcript of the Handed Down Judgment of
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Melanie Plimmer (instructed by Browell Smith & Co ) for R
A appeared in person
Manjit S Gill QC & Luthfur Rahman (instructed by White Ryland) for T (Afghanistan)
Manjit Gill QC & Benjamin Hawkin (instructed by White Ryland) for M
Tublu K.Mukherjee (instructed by Fisher Meredith) for T (Eritrea)
Jane Collier (instructed by the Treasury Solicitor) for the Respondent in 2159
Lisa Giovannetti (instructed by the Treasury Solicitor) for the Respondent in 2586, 0751 and 0682
Robin Tam (instructed by the Treasury Solicitor) for the Respondent in 0687
HTML VERSION OF JUDGMENT
Crown Copyright ©
||Introductory: the powers of the IAT under
the 2002 Act
||Recent authoritative guidance: the power of
the IAT to correct errors of fact
||The jurisdiction to correct errors of law:
examples of errors of law commonly encountered
||Perversity, the failure to give reasons, and
||Country Guidance cases
||Error of law: unfairness resulting from a
mistake of fact
||Evidence of a change of circumstances since
the original decision
||The willingness of the IAT to admit evidence
of changed circumstances
||Examples of the admission of new evidence or
changed circumstances in asylum appeals
||The function of the IAT in its restricted
||Buxton LJ's obiter observations in
||The application of these principles to the
||A summary of the main points in this
||Appeals to the Court of
|| M and T
Lord Justice Brooke: This is the judgment of the court.
Part 1 Introductory: the powers of the IAT under the 2002 Act
- These five appeals were listed before the same division of the court in a single week in order to enable us to address a number of questions that have arisen since the jurisdiction of the former Immigration Appeal Tribunal ("IAT") was restricted to appeals on a point or points of law. Although the IAT has now been abolished and replaced by the single tier Asylum and Immigration Tribunal ("AIT"), much of what we say will be equally relevant to the new statutory regime, in which the power to reconsider an original decision in the AIT will only arise in relation to issues of law. We are setting out the detailed facts of these appeals in the Appendix to this judgment. In this main judgment we will be concerned to explain the relevant principles of law, and then to state briefly how they are to be applied to the individual cases whose details are to be found in the Appendix.
- The jurisdiction of the adjudicator in all these cases was conferred by s 82(1) of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") because all the impugned decisions of the Secretary of State postdated 1st April 2003. Section 84(1)(g) of the 2002 Act provided that an appeal against an immigration decision (a phrase which includes a decision to remove) might be brought on the ground, among others:
"(g) that [the appellant's] removal from the United Kingdom in consequence of the immigration decision would breach the United Kingdom's obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant's Convention rights."
- Section 86(3) provided that the adjudicator must allow the appeal in so far as he thought that:
"(a) a decision against which the appeal is brought was not in accordance with the law (including immigration rules) or
(b) a discretion exercised in making a decision against which the appeal is brought … should have been exercised differently."
- In each of the present cases the decision of the adjudicator postdated 9th June 2003, so that appeal to the IAT lay pursuant to s 101(1) of the 2002 Act, which provided that:
"(1) A party to an appeal to an adjudicator under section 82 … may, with the permission of the Immigration Appeal Tribunal, appeal to the Tribunal against the adjudicator's determination on a point of law."
- Section 102, for its part, provided that:
"(1) On an appeal under section 101 the Immigration Appeal Tribunal may -
(a) affirm the adjudicator's decision;
(b) make any decision which the adjudicator could have made;
(c) remit the appeal to an adjudicator;
(d) affirm a direction given by the adjudicator under section 87;
(e) vary a direction given by the adjudicator under that section;
(f) give any direction which the adjudicator could have given under that section.
(2) In reaching their decision on an appeal under section 101 the Tribunal may consider evidence about any matter which they think relevant to the adjudicator's decision, including evidence which concerns a matter arising after the adjudicator's decision.
(4) In remitting an appeal to an adjudicator under subsection (1)(c) the Tribunal may, in particular –
(a) require the adjudicator to determine the appeal in accordance with directions of the tribunal;
(b) require the adjudicator to take additional evidence with a view to the appeal being determined by a Tribunal."
Part 2 Recent authoritative guidance: the power of the IAT to correct errors of fact
- During the course of the last two years the House of Lords and this court have been resolving issues of substantive law relating to the interface between the Human Rights Act 1998 and the immigration and asylum legislation. This court has also been resolving issues of procedural law and the law of evidence in relation to the appellate jurisdiction of both the IAT and of this court (to whom appeals have always lain from the IAT on a point of law only from the time that such a direct route of appeal was first created). Some of the decisions relating to procedure and evidence, however, were concerned with pre-June 2003 cases in which appeals on both law and fact lay to the IAT. In the course of this judgment we will have to review the relevance of some of these decisions in relation to the period between June 2003 and April 2005 when appeal only lay to the IAT on a point of law.
- The judgments of this court in Indrakumar v SSHD  EWCA Civ 1677;  Imm AR 76 and Subesh v SSHD  EWCA Civ 56;  Imm AR 112 provided general advice to the IAT which related to the days when appeal lay to the IAT against the findings of fact by an adjudicator. So far as findings of fact were concerned, the burden lay on an appellant to persuade the IAT not merely that a different version of the facts was reasonable and possible, but that there were objective grounds upon which the IAT ought to conclude that this different version was the right one.
- In reviewing the findings of fact made by an adjudicator, Laws LJ made it clear in Subesh that the IAT were to follow these guidelines:
i) It would only very rarely be able to overturn a finding of fact based on oral evidence and the assessment of credibility;
ii) It could more readily overturn a finding of fact based on documentary evidence specific to the individual case (because the IAT was in just as good a position to assess such evidence), but great caution would be required in those cases where there might be an important relationship between the assessment of the person involved and the assessment of those documents;
iii) The IAT would be at least as well placed as the adjudicator to assess findings as to the general conditions, or the backdrop, in the country concerned which would be based on the objective country evidence; the more so if the adjudicator had departed without solid justification from a relevant IAT country guidance decision;
iv) The IAT would be entitled to draw its own inferences as to the application of those general country conditions to the facts of the particular case.
Part 3 The jurisdiction to correct errors of law: examples of errors of law commonly encountered
- When the court gave this guidance in Subesh, it was aware that it would not be of any relevance to an appellate regime in which appeals were restricted to points of law. It may be convenient to give a brief summary of the points of law that will most frequently be encountered in practice:
i) Making perverse or irrational findings on a matter or matters that were material to the outcome ("material matters");
ii) Failing to give reasons or any adequate reasons for findings on material matters;
iii) Failing to take into account and/or resolve conflicts of fact or opinion on material matters;
iv) Giving weight to immaterial matters;
v) Making a material misdirection of law on any material matter;
vi) Committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of the proceedings;
vii) Making a mistake as to a material fact which could be established by objective and uncontentious evidence, where the appellant and/or his advisers were not responsible for the mistake, and where unfairness resulted from the fact that a mistake was made.
- Each of these grounds for detecting an error of law contain the word "material" (or "immaterial"). Errors of law of which it can be said that they would have made no difference to the outcome do not matter. This need to identify an error of law which would have made a material difference to the outcome was at the relevant time underscored by Rule 17(3) of the Immigration and Asylum Appeals (Procedure) Rules 2003, which provided that:
"(3) The grounds of appeal must –
(a) identify the alleged errors of law in the adjudicator's determination; and
(b) explain why such errors made a material difference to the outcome."
Part 4 Perversity, the failure to give reasons, and proportionality
- It may be helpful to comment quite briefly on three matters first of all. It is well known that "perversity" represents a very high hurdle. In Miftari v SSHD  EWCA Civ 481, the whole court agreed that the word meant what it said: it was a demanding concept. The majority of the court (Keene and Maurice Kay LJJ) said that it embraced decisions that were irrational or unreasonable in the Wednesbury sense (even if there was no wilful or conscious departure from the rational), but it also included a finding of fact that was wholly unsupported by the evidence, provided always that this was a finding as to a material matter.
- We mention this because far too often practitioners use the word "irrational" or "perverse" when these epithets are completely inappropriate. If there is no chance that an appellate tribunal will categorise the matter of which they make complaint as irrational or perverse, they are simply wasting time – and, all too often, the taxpayer's resources – by suggesting that it was.
- The second preliminary matter is this. Adjudicators were under an obligation to give reasons for their decisions (see reg 53 of the Immigration and Asylum Appeals (Procedure) Regulations 2003), so that a breach of that obligation may amount to an error of law. However, unjustified complaints by practitioners that are based on an alleged failure to give reasons, or adequate reasons, are seen far too often. The leading decisions of this court on this topic are now Eagil Trust Co Ltd v Pigott-Brown  3 All ER 119 and English v Emery Reimbold & Strick Ltd  EWCA Civ 605,  1 WLR 2409. We will adapt what was said in those two cases for the purposes of illustrating the relationship between an adjudicator and the IAT. In the former Griffiths LJ said at p 122:
"[An adjudicator] should give his reasons in sufficient detail to show the [IAT] the principles on which he has acted and the reasons that have led him to his decision. They need not be elaborate. I cannot stress too strongly that there is no duty on [an adjudicator], in giving his reasons, to deal with every argument presented by [an advocate] in support of his case. It is sufficient if what he says shows the parties and, if need be, the [IAT], the basis on which he has acted, and if it be that the [adjudicator] has not dealt with some particular argument but it can be seen that there are grounds on which he would have been entitled to reject it, [the IAT] should assume that he acted on those grounds unless the appellant can point to convincing reasons leading to a contrary conclusion."
- In English Lord Phillips MR said at para 19:
"[I]f the appellate process is to work satisfactorily, the judgment must enable the [IAT] to understand why the [adjudicator] reached his decision. This does not mean that every factor which weighed with the [adjudicator] in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the [adjudicator]'s conclusion should be identified and the manner in which he resolved them explained. It is not possible to provide a template for this process. It need not involve a lengthy judgment. It does require the [adjudicator] to identify and record those matters which were critical to his decision. If the critical issue was one of fact, it may be enough to say that one witness was preferred to another because the one manifestly had a clearer recollection of the material facts or the other gave answers which demonstrated that his recollection could not be relied upon."
- It will be noticed that the Master of the Rolls used the words "vital" and "critical" as synonyms of the word "material" which we have used above. The whole of his judgment warrants attention, because it reveals the anxiety of an appellate court not to overturn a judgment at first instance unless it really cannot understand the original judge's thought processes when he/she was making material findings.
- What we have said does not absolve an adjudicator of his/her duty of devoting the intense scrutiny to the appellant's case that is required of a decision of such importance. What we wish to make clear, however, is that the practice of bringing appeals because the adjudicator or immigration judge has not made reasoned findings on matters of peripheral importance must now come to an end.
- As to the third preliminary matter, when an issue arises on an appeal that there is a risk that one of the appellant's ECHR rights would be violated if he/she were removed to another country, it is now well established that the adjudicator must make the decision himself, following the guidance given by this court in Huang v SSHD  EWCA Civ 105. One of the cases with which we are concerned raises an issue under Article 8 of the ECHR, of a kind that often arises in asylum cases, and it will be useful to describe the processes that should be followed both at adjudicator and IAT level in relation to such a claim.
- The relevant substantive law is now reasonably clear following the decision of the House of Lords in R (Ullah) v SSHD  UKHL 26;  2 AC 323 and R (Razgar) v SSHD  UKHL 27;  2 AC 368, and the decision of this court in Huang v SSHD  EWCA Civ 105. In Razgar Lord Bingham said at paras 17-20:
"17. In considering whether a challenge to the Secretary of State's decision to remove a person must clearly fail, the reviewing court must, as it seems to me, consider how an appeal would be likely to fare before an adjudicator, as the tribunal responsible for deciding the appeal if there were an appeal. This means that the reviewing court must ask itself essentially the questions which would have to be answered by an adjudicator. In a case where removal is resisted in reliance on article 8, these questions are likely to be:
(1) Will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life?
(2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8?
(3) If so, is such interference in accordance with the law?
(4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?
(5) If so, is such interference proportionate to the legitimate public end sought to be achieved?
18. If the reviewing court is satisfied in any case, on consideration of all the materials which are before it and would be before an adjudicator, that the answer to question (1) clearly would or should be negative, there can be no ground at all for challenging the certificate of the Secretary of State. Question (2) reflects the consistent case law of the Strasbourg court, holding that conduct must attain a minimum level of severity to engage the operation of the Convention: see, for example, Costello-Roberts v United Kingdom (1993) 19 EHRR 112. If the reviewing court is satisfied that the answer to this question clearly would or should be negative, there can again be no ground for challenging the certificate. If question (3) is reached, it is likely to permit of an affirmative answer only.
19. Where removal is proposed in pursuance of a lawful immigration policy, question (4) will almost always fall to be answered affirmatively. This is because the right of sovereign states, subject to treaty obligations, to regulate the entry and expulsion of aliens is recognised in the Strasbourg jurisprudence (see Ullah and Do, para 6) and implementation of a firm and orderly immigration policy is an important function of government in a modern democratic state. In the absence of bad faith, ulterior motive or deliberate abuse of power it is hard to imagine an adjudicator answering this question other than affirmatively.
20. The answering of question (5), where that question is reached, must always involve the striking of a fair balance between the rights of the individual and the interests of the community which is inherent in the whole of the Convention. The severity and consequences of the interference will call for careful assessment at this stage. The Secretary of State must exercise his judgment in the first instance. On appeal the adjudicator must exercise his or her own judgment, taking account of any material which may not have been before the Secretary of State. A reviewing court must assess the judgment which would or might be made by an adjudicator on appeal. In Secretary of State for the Home Department v Kacaj  Imm AR 213, para 25, the [IAT] … observed that:
'although the [Convention] rights may be engaged, legitimate immigration control will almost certainly mean that derogation from the rights will be proper and will not be disproportionate.'
In the present case, the Court of Appeal had no doubt … that this overstated the position. I respectfully consider the element of overstatement to be small. Decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of exceptional cases, identifiable only on a case by case basis."
When he turned to Mr Razgar's case, Lord Bingham said in para 24 that when an adjudicator reached Question (5), he might well decide it against Mr Razgar.
- When he analysed the effect of this speech in para 40 of his judgment in Huang, Laws LJ said that it could be inferred from paras 20 and 24 that Lord Bingham contemplated that an adjudicator would properly have arrived at his own decision on the merits in Razgar, had he been called on to answer Question (5). He then held that the Court of Appeal must jettison its earlier case law and consider the situation afresh. He eventually concluded (at paras 59-60):
"It might be said that the Immigration Rules constitute for all cases the balance to be struck between private right and public interest, and this is conclusive for any judgment in an Article 8 case as to whether removal or deportation is proportionate and so justified under Article 8(2). But the Secretary of State rightly does not so contend. If that were the law, our municipal statute need do no more than confer a right of appeal to allow the immigrant to contend that on the true facts he has a good claim under the Rules. However, whatever else may be said about the relation between s 65(1) and paragraph 21(1) of Schedule 4 to the 1999 Act, it is surely plain that the legislature contemplated appeals on Convention grounds, including Article 8, which might succeed even though the appellant had no good claim under the Rules. The true position in our judgment is that the HRA and s 65(1) require the adjudicator to allow an appeal against removal or deportation brought on Article 8 grounds if, but only if, he concludes that the case is so exceptional on its particular facts that the imperative of proportionality demands an outcome in the appellant's favour notwithstanding that he cannot succeed under the Rules.
In such a case the adjudicator is not ignoring or overriding the Rules. On the contrary it is a signal feature of his task that he is bound to respect the balance between public interest and private right struck by the Rules with Parliament's approval. That is why he is only entitled on Article 8 grounds to favour an appellant outside the Rules where the case is truly exceptional. This, not Wednesbury or any revision of Wednesbury, represents the real restriction which the law imposes on the scope of judgment allowed to the adjudicator. It is not a question of his deferring to the Secretary of State's judgment of proportionality in the individual case. The adjudicator's decision of the question whether the case is truly exceptional is entirely his own. He does defer to the Rules; for this approach recognises that the balance struck by the Rules will generally dispose of proportionality issues arising under Article 8; but they are not exhaustive of all cases. There will be a residue of truly exceptional instances. In our respectful view such an approach is also reflected in Lord Bingham's words in Razgar, which we have already cited:
'Decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of exceptional cases, identifiable only on a case by case basis.'"
In Huang the adjudicator was operating under the different regime set out in the Immigration and Asylum Act 1999 ("the 1999 Act"). There is, however, no material difference in the language of the 2002 Act.
- It follows that if an adjudicator correctly directed himself as to his duty under the law, and clearly adopted the approach prescribed in Razgar and Huang, then the IAT could not as a matter of law interfere with his decision, which will usually involve a judgment on proportionality, except on traditional public law lines (for which see para 9 above). He is the judicial decision-maker, and his is the obligation of intense scrutiny described by Lord Steyn in R (Daly) v SSHD  UKHL 26 at ;  2 AC 532.
Part 5 Country Guidance cases
- Three matters require more detailed treatment. The first relates to the practice of the IAT of giving "country guidance" ("CG") decisions. This practice has proved to be so useful that it is now firmly embedded in the recently published Practice Directions of the AIT in these terms:
"18.2 A reported determination of the Tribunal or of the IAT bearing the letters 'CG' shall be treated as an authoritative finding on the country guidance issue identified in the determination, based upon the evidence before the members of the Tribunal or the IAT that determined the appeal. As a result, unless it has been expressly superseded or replaced by any later 'CG' determination, or is inconsistent with other authority that is binding on the Tribunal, such a country guidance case is authoritative in any subsequent appeal, so far as that appeal:
a) relates to the country guidance issue in question; and
b) depends upon the same or similar evidence.
18.3 A list of current 'CG' cases will be maintained on the Tribunal website. Both the respondent and any representative of the appellant in an appeal concerning a particular country will be expected to be conversant with the current 'CG' determinations relating to that country.
18.4 Because of the principle that like cases should be treated in like manner, any failure to follow a clear, apparently applicable country guidance case or to show why it does not apply to the case in question is likely to be regarded as grounds for review or appeal on a point of law."
- The principle that like cases should be treated in a like manner is another way of describing what Lord Hoffmann described in Arthur J S Hall & Co v Simons  1 AC 615, 688H as "the fundamental principle of justice which requires that people should be treated equally and like cases treated alike." See also Sedley LJ in Shirazi v SSHD  EWCA Civ 1562 at  and ;  INLR 92 when he described as "inimical to justice" the inconsistency that was evident when different decisions were taken by different panels of the same appeal tribunal on very similar facts.
- Although AIT Practice Direction 18 was not of course published during the period with which we are concerned in these appeals, and the arrangements for publishing CG determinations have recently become more sophisticated, it sets out usefully what has been the purpose of issuing these determinations ever since such they were first introduced about four years ago. They represent an institutional response by the IAT to the need identified by Lord Woolf MR and Brooke LJ in their judgments in Manzeke  Imm AR 524. Lord Woolf said:
"It will be beneficial to the general administration of asylum appeals for Special Adjudicators to have the benefit of the views of a Tribunal in other cases on the general situation in a particular part of the world, as long as that situation has not changed in the meantime. Consistency in the treatment of asylum-seekers is important in so far as objective considerations, not directly affected by the circumstances of the individual asylum-seeker, are involved."
Brooke LJ added:
"It often occurs in asylum appeals that Special Adjudicators are asked to consider reports about conditions in the different countries to which asylum-seekers may return. Sometimes different Special Adjudicators reach different conclusions on the same, or much the same, evidence. This is an unfortunate fact which has led appeals and applications in such cases to be pursued right up to this court in recent months.
In those circumstances the Tribunal may perform a valuable function if it decides in any given case to review all the reports available to it relating to a particular country over a particular period of time, so as to give helpful guidance to Special Adjudicators as to how they should approach that evidence in a future case."
- In S and Others v SSHD  EWCA Civ 539;  INLR 416 Laws LJ described the IAT's evolving practice of issuing CG decisions. He described them as "factual precedents" (an expression which the IAT has subsequently been at pains to say was a misrepresentation of their purpose: see para 141 of Ouseley J's decision in NM (Somalia) which is cited in para 26 below), and praised their usefulness. He called them "benign and practical". In particular he said:
"28. Refugee claims vis-à-vis any particular State are inevitably made against a political backdrop which over a period of time, however long or short, is, if not constant, at any rate identifiable. Of course the impact of the prevailing political reality may vary as between one claimant and another, and it is always the appellate authorities' duty to examine the facts of individual cases. But there is no public interest, nor any legitimate individual interest, in multiple examinations of the state of the backdrop at any particular time. Such revisits give rise to the risk, perhaps the likelihood, of inconsistent results; and the likelihood, perhaps the certainty, of repeated and therefore wasted expenditure of judicial and financial resources upon the same issues and the same evidence."
- It is unnecessary for the purposes of these appeals to quote more than two sentences from the very long description of the function of CG determinations which is contained in the determination of the IAT in BD (Croatia CG)  UKIAT 00032. They said at para 58:
"SK was intended to and did give authoritative guidance as to the approach to be adopted towards the position of ethnic Serbs returning to Croatia. Giving such guidance is an important part of the Tribunal's function, enabling the parties to know where they stand and assisting the achievement of consistent decision-making throughout the asylum and immigration process."
- Instead, we can go straight to NM and Others (Lone women – Ashraf) Somalia CG  UKIAT 00076, in a determination Ouseley J delivered at the very end of his term of office as President of the IAT, when he suggested that in S and Others Laws LJ had misunderstood the nature of a CG decision. He said:
"139. Decisions of the Tribunal to that end had been made for a number of years. They were to be applied by the Tribunal itself and by Adjudicators unless there was good reason, explicitly stated, for not doing so. Failure to adopt that approach was an error of law in that a material consideration had been ignored or legally inadequate reasons for the decision had been given. The inconsistency itself with authoritative cases would be regarded by higher authority than the Tribunal as an error of law. There was a need to formalise that system so that parties knew where they stood, at least as the starting point for consideration of their circumstances, and for the Tribunal itself to bring forward those decisions which it had made, which it thought were representative and useful still, as a guide to country conditions.
140. These decisions are now denoted as 'CG'. They are not starred decisions. Those latter are decisions which are binding on points of law. The requirement to apply CG cases is rather different: they should be applied except where they do not apply to the particular facts which an Adjudicator or the Tribunal faces and can properly be held inapplicable for legally adequate reasons; there may be evidence that circumstances have changed in a material way which requires a different decision, again on the basis that proper reasons for that view are given; there may be significant new evidence which shows that the views originally expressed require consideration for revision or refinement, even without any material change in circumstances. It may be that the passage of time itself or substantial new evidence itself warrants a re-examination of the position, even though the outcome may be unchanged. It is a misunderstanding of their nature, therefore, to see these cases as equivalent to starred cases. The system does not have the rigidity of the legally binding precedent but has instead the flexibility to accommodate individual cases, changes, fresh evidence and the other circumstances which we have set out.
141. The comments of the Court of Appeal in S and Others  INLR 416, while recognising the role of the Tribunal in giving guidance, appear to have thought that the Tribunal guidance on country conditions was binding as a legal precedent in the way in which a starred conclusion on a point of law would be. But S and Others was not starred for that guidance, but for the point of law which arose. We have pointed this out in DK and elsewhere and we hope that it is now widely understood. It led to a standard being proposed for such cases, which may be ideal but cannot always be necessary in order for guidance to be given and for the injustice which inconsistency itself can bring to be avoided. Unlike starred decisions, it is always possible for further evidence to show that the original decision was wrong or to expose other issues which require examination. They are not accurately understood or described as 'factual precedents'.
142. The system enables the parties and the judiciary to know where to look for what the Tribunal sees as the relevant guidance, the parties to know what they have to deal with, and, if they wish to take issue with it, what it is that has to be the target of their evidence or argument. It enables parties to rely on the material which others have had accepted without reproducing or repeating it every time, or if it has been rejected, to know that there is no point in repeating it. Consistency and the justice which that brings can be provided for, even though differing and perhaps reasonable views can be taken of a wide variety of material. It also has the advantage of enabling the understanding of country conditions to be refined as successive decisions may lead to the identification of consequential issues to be grappled with which had hitherto been unrecognised; the Turkey cases are an example. There is recognised scope for improvement and parties can focus their evidence and arguments upon the aspect with which they take issue. The IAA website has made these cases publicly accessible."
- It will have been noticed that Ouseley J said that any failure to apply a CG decision unless there was good reason, explicitly stated, for not doing so would constitute an error of law in that a material consideration had been ignored or legally inadequate reasons for the decision had been given. This suggestion has now been repeated and adopted in para 18.4 of the AIT Practice Direction. We have no hesitation in endorsing that approach. It would represent a failure to take a material matter into account, which is the third of the generic errors of law we have identified in para 9 above. We should add, by way of completeness, that in S and Others Laws LJ was considering the status of CG determinations at a time when the IAT's jurisdiction was not limited to appeals on a point of law. We will be considering in para 73 below the circumstances in which the IAT might continue to give CG decisions after its jurisdiction was limited to the consideration of errors of law.
Part 6 Error of law: unfairness resulting from a mistake of fact
- The next matter we must address relates to the circumstances in which an appellate body like the IAT, whose primary role during the relevant period was restricted to identifying and correcting errors of law, could entertain an argument to the effect that the outcome in the lower court was unfair as a result of a mistake of fact, and that this constituted an error of law which entitled it to interfere.
- In E and R v Home Secretary  EWCA Civ 49;  QB 1044 this court was concerned to provide a principled explanation of the reasons why a court whose jurisdiction is limited to the correction of errors of law is occasionally able to intervene, when fairness demands it, when a minister or an inferior body or tribunal has taken a decision on the basis of a foundation of fact which was demonstrably wrong. Carnwath LJ gave at least eight examples in his review of the case law. Contrary to the basis on which the original decision was reached:
(i) There was in fact contemporary documentary evidence of the injuries sustained by a claimant for compensation from the Criminal Injuries Compensation Board (para 45);
(ii) There was in fact, contrary to a minister's belief, adequate school accommodation in a local education authority's area for the pupils to be educated (para 54);
(iii) The land in question had in fact once been part of the Green Belt (para 58);
(iv) The proposed building extension would in fact obstruct a particular aspect (para 58);
(v) The restructuring of a building was in fact viable (para 58);
(vi) A study by a local council did not in fact relate to the inclusion of a particular site within the Green Belt (para 59);
(vii) A critical witness was in fact a member of a totally different political party in Ethiopia to that which he was believed to support (paras 60, 78-79);
(viii) The appellant had in fact been tried and convicted in his absence in his home country and sentenced to ten years' imprisonment, a matter which cast an entirely new light on the risks he faced if he were returned there (paras 60, 87).
- At para 64 Carnwath LJ said that there was a common feature of all these cases, even where the procedure was adversarial, in that the Secretary of State or the particular statutory authority had a shared interest with both the particular appellant and with any tribunal or other decision-maker that might be involved in the case in ensuring that decisions were taken on the best information and on the correct factual basis. At para 66 he identified asylum law as representing a statutory context in which the parties shared an interest in co-operating to achieve a correct result. He went on to suggest that the ordinary requirements for a finding of unfairness which amounted to an error of law were that:
(i) there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter;
(ii) it must be possible to categorise the relevant fact or evidence as "established" in the sense that it was uncontentious and objectively verifiable;
(iii) the appellant (or his advisers) must not have been responsible for the mistake;
(iv) the mistake must have played a material (not necessarily decisive) part in the tribunal's reasoning.
He made it clear that he was not seeking to lay down a precise code.
- Needless to say, such a mistake could not be identified by the supervising or appellate court unless it was willing to admit new evidence in order to identify it. Paragraphs 68 to 89 of the judgment in E and R contain an analysis of relevant case law on the power to admit new evidence. It concluded with the observation that the case of Khan v SSHD  EWCA Civ 530 that gave rise to the problem summarised in (viii) above was a good example of the need for a residual ground of review for unfairness arising from a simple mistake of fact and that it illustrated the intrinsic difficulty in many asylum cases of obtaining reliable evidence of the facts that gave rise to the fear of persecution and the need for some flexibility in the application of Ladd v Marshall principles.
- The reference to the Ladd v Marshall principles is a reference to that part of the judgment of Denning LJ in Ladd v Marshall  1 WLR 1489 when he said at p 1491 that where there had been a trial or hearing on the merits, the decision of the judge could only be overturned by the use of further evidence if it could be shown that:
(1) the new evidence could not with reasonable diligence have been obtained for use at the trial (or hearing);
(2) the new evidence must be such that, if given, it would probably have had an important influence on the result of the case (though it need not be decisive);
(3) the new evidence was apparently credible although it need not be incontrovertible.
- By way of a final summary of the position, Carnwath LJ said in E and R at para 91 that an appeal on a question of law might now be made on the basis of unfairness resulting from "misunderstanding or ignorance of an established and relevant fact" and that the admission of new evidence on such an appeal was subject to Ladd v Marshall principles, which might be departed from in exceptional circumstances where the interests of justice required.
Part 7 Evidence of a change of circumstances since the original decision
- In the ordinary run of litigation in the courts the legal rights of the parties fall to be decided in accordance with the facts as they appear to the first instance judge. There is little room for the admission of evidence of changed circumstances at the hearing of an appeal. From time to time, however, such evidence was admitted. Case law reveals the following examples under the pre-CPR regime:
i) Where there has been a change of circumstances after the granting of an interlocutory injunction such that if the new circumstances had been before the judge they would have justified the variation of the injunction (Hadmor Productions Ltd v Hamilton  1 AC 191, 220D);
ii) More generally, where a change of circumstances since the trial has falsified the basis on which discretionary relief was granted (Attorney General v Birmingham, Tame and Rees District Drainage Board  AC 788, 802);
iii) Where the passage of time since a trial has falsified a conclusion of the trial court based on complaints of delay (EMA v ACAS (No 2)  1 WLR 302, 320F);
iv) From time to time, on the basis that the court should not speculate where it knows, damages will be assessed on the facts as they appear at the date of the appeal hearing (Curwen v Jones  1 WLR 748, 753; Lim Poh Choo v Camden and Islington AHA  AC 174, 194E).
- In Murphy v Stone-Wallwork (Charlton) Ltd  1 WLR 1023 HL it was said that the power to admit fresh evidence which showed that damages had been assessed on a false basis should be exercised very sparingly in view of the importance of the principle of finality in litigation (see Lord Pearce at p 1028B and Lord Upjohn at p 1031A).
- RSC Order 59 Rule 10, which was the rule in force in the Court of Appeal prior to 2nd May 2000, provided that:
"(2) The Court of Appeal shall have power to receive further evidence on questions of fact … but in the case of an appeal from a judgment after trial or hearing of any cause or matter on the merits, no such further evidence (other than evidence as to matters which have occurred since the date of the trial or hearing) shall be admitted except on special grounds. (emphasis added)
(3) The Court of Appeal shall have power to draw inferences of fact and to give any judgment and make any order which ought to have been given or made, and to make such further or other order as the case may require."
- It is noticeable that the court's willingness to admit evidence of changed circumstances was exercised in particular when it was determining whether a restraint as to future conduct should be retained in force or lifted, or whether an award of damages which contained a significant element of crystal-gazing should be altered when more of the material facts had become known. In all these cases the court possessed an appellate jurisdiction over both fact and law.
Part 8 The willingness of the IAT to admit evidence of changed circumstances
- Ten years ago this court considered issues relating to the scope of the appellate jurisdiction of the IAT on two different occasions. In those days section 19 (1) of the Immigration Act 1971 created the right of appeal to an adjudicator in most immigration matters, whereas it was section 8(1) of the Asylum and Immigration Act 1993 that created for the first time an express right of appeal in an asylum case. It was framed in these terms:
"8. (1) A person who is refused leave to enter the United Kingdom under the 1971 Act may appeal against the refusal to a special adjudicator on the ground that his removal in consequence of the refusal would be contrary to the United Kingdom's obligation under the Convention." (emphasis added)
- Section 20 (1) of the Immigration Act 1971 created the right of appeal to the IAT, and the IAT's powers on such an appeal were expressed in these terms:
"20. (1) Subject to any requirement of rules of procedure as to leave to appeal, any party to an appeal to an adjudicator may, if dissatisfied with his determination thereon, appeal to the Appeal Tribunal, and the Tribunal may affirm the determination or make any other determination which could have been made by the adjudicator."
For the effect of this provision, see Borrisov v SSHD  Imm AR 524, per Hirst LJ at p 535.
- The IAT's power to admit new evidence on the hearing of an appeal was governed at that time by Rule 27 of the Asylum Appeals (Procedure) Rules 1996. This contained in Rule 27(2) a requirement that notice should be given of a wish to adduce new evidence, and Rule 27(3)(a) provided that:
"…the Tribunal may, in its discretion, receive or decline to receive further evidence of which notice has been given in accordance with paragraph (2)."
- In contrast to what happens in the general run of civil litigation, the practice of asylum law is complicated by the fact that it is all about future risk, and on many occasions there are relevant changes of circumstances between the time of the original refusal of asylum and the time of the IAT's decision. In Ravichandran  Imm AR 97, for instance, Colombo was generally regarded as a much safer place for returning Tamils in 1995 (when the IAT heard their appeals) than it had been in 1993 (when the Secretary of State made his decision to refuse asylum). The question therefore arose whether the IAT should continue to follow the course that had always pertained to immigration appeals generally (that is, to assess the facts as at the date of the original decision by the Secretary of State), or whether there should be some special rule for asylum appeals.
- Simon Brown LJ answered this question by deciding that in asylum cases the appellate structure created by the 1993 Act was to be regarded as an extension of the decision-making process rather than as a process for enabling the original administrative decision to be reviewed. He said:
"I am, I think, entitled to reach that conclusion as a matter of construction on the basis that the prospective nature of the question posed by section 8 of the 1993 Act overrides the retrospective approach ordinarily required (implicitly) on a section 19 appeal. Section 8, after all, could but does not, identify the ground of appeal as being that the appellant's removal 'would have been' (rather than 'would be') contrary to the United Kingdom's Convention obligations. Moreover, section 8(1) refers to a particular class of appeals and section 19 to appeals in general. It would be a strong thing to say that the general was to override the particular."
- After commenting on the way in which the situation in a particular foreign country might change for better or for worse during the period that intervened before an appeal was heard, Simon Brown LJ said:
"In either event, if the appellate authorities were bound to ignore such changes, it would render their decisions substantially less valuable. If the situation had improved but, because the appellate authorities had to ignore such improvement, the appeal succeeded, the Secretary of State might nevertheless, in reliance upon article 1C(5) of the 1951 Convention refuse the appellant refugee status. Article 1C(5) provides that the Convention ceases to apply if:
'(5) he (the refugee) can no longer, because the circumstances in connection with which he has been recognised as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality.'
Equally, had the situation deteriorated but, because this had to be ignored, the appeal failed, the claimant could put a fresh case to the Secretary of State. In either event, the appeal process could well have to start all over again."
- Staughton LJ, agreeing, observed that the language of section 8(1) of the 1993 Act manifestly looked to the future at the date of the appeal. It reflected Article 33 of the 1951 Geneva Convention. He said:
"In those circumstances the procedural provisions of section 19 of the Immigration Act 1971, as incorporated by paragraph 4(2) of schedule 2 of the 1993 Act, must yield if and insofar as they would otherwise confine the appellate authorities to the facts that existed at the time of the Secretary of State's decision."
Part 9 Examples of the admission of new evidence or changed circumstances in asylum appeals
- Prior to the judgment of this court in E and R, it was the regular practice in asylum appeals to admit evidence of material facts that post-dated the adjudicator's decision without any reservations, and to apply a slightly relaxed version of the first rule in Ladd v Marshall to the admission of evidence of such facts if they pre-dated the adjudicator's decision, so long as the evidence was credible and likely to affect the final outcome. See for instance the judgments of Latham J in R v IAT ex p Aziz  Imm AR 476, 482 and of this court in R v IAT ex p Askhosravi  EWCA Civ 977 at .
- Rule 18(11) of the Immigration and Asylum Appeals (Procedure) Rules 2000 represented an attempt by the rule-maker to control the flow of fresh evidence to the IAT:
"Subject to section 77, where evidence which was not submitted to the adjudicator is relied upon in an application for leave to appeal [to the IAT], the Tribunal shall not be required to consider that evidence in deciding whether to grant leave to appeal, unless it is satisfied that there were good reasons why it was not submitted to the adjudicator."
- So long as the IAT's jurisdiction contained the power to correct errors of fact, once the admission of the new evidence revealed that the IAT had to reassess the risk on return on a new factual basis (whether it was now revealed that the adjudicator had got some of the material facts wrong or that circumstances had now changed in some material respect), it did not much matter whether the IAT's intervention was properly categorised as being due to an error of law or an error of fact, or simply to the changed circumstances: in all these cases it was entitled to intervene. The position was different when new evidence came to light between the IAT's decision and a subsequent hearing in the Court of Appeal because the Court of Appeal's jurisdiction has always been limited in this jurisdiction to the correction of errors of law. This was why in E and R the Court of Appeal had to identify an error of law in order to be able to put things right.
- In his judgment in E and R Carnwath LJ cited two recent asylum appeals: R (Haile) v IAT  EWCA Civ 663;  INLR 283 and Khan v SSHD  EWCA Civ 530. In both these cases this court intervened on the basis that new evidence before it had altered the position significantly, but on neither occasion was the court concerned to identify the precise jurisprudential basis on which it was entitled to intervene.
- We have described in para 30 above the solution which this court propounded in E and R to the problem which was left unsolved in Haile and Khan. In Cabo Verde v SSHD  EWCA Civ 1726 the Secretary of State was the appellant who wished new evidence to be introduced. Although his asylum claim had been dismissed, the asylum-seeker had succeeded before the IAT on Article 3 of the ECHR on the basis that there were thought to be strong grounds for believing that he would be subjected to inhuman treatment if he were returned to Angola, given his history of being tortured in a prison there for four months in early 2002. A year later an extradition request from Portugal contained a contention which was said to show without a shadow of a doubt that he was committing crimes and/or in prison in Portugal at that time and not in Angola at all (although the asylum-seeker denied these assertions).
- Buxton LJ said that this evidence showed that there was now material which suggested that the factual basis on which the IAT had proceeded was, through no fault of theirs, simply wrong, and that fairness, ie a proper and rational immigration policy, clearly demanded that all the facts of the matter should be before the IAT. Applying E and R, he said that it was plainly established as a fact that relevant evidence was not before the IAT, so that the four criteria for identifying a mistake of fact resulting in unfairness (see para 30 above) were all satisfied. The mistake of fact was a mistake as to the existence of evidence which put in issue the asylum-seeker's claim to have been in Angola at the relevant time. The mistake was "established" within the second of the conditions in E and R; and that mistake led to a finding of unfairness. It is important to bear in mind that a mistake as to where the asylum-seeker actually was (based on an evaluation of conflicting evidence) would not have done so.
Part 10 The function of the IAT in its restricted appellate role
- Against this background what we now have to decide is the function that the IAT was intended to perform in these matters in its new role once it had detected an error of law in the first instance decision such as to enable it to consider which of its powers under s 102(1) of the 2002 Act it should exercise: for these powers, see para 5 above. In this context there are three recent decisions of this court which we must consider.
- In CA v SSHD  EWCA Civ 1165;  INLR 453 Laws LJ held at para 14 that under the new appellate regime the IAT's function was plainly confined to appeals on law only:
"14. …Accordingly, and this is I apprehend no more than elementary, an appeal cannot be allowed unless the Tribunal distinctly holds that the adjudicator has perpetrated a mistake of law. No doubt it must be a material error of law. If it could truly be shown that the result before the adjudicator must have been the same even if there had been no legal error, there would be scope for the Tribunal to dismiss the appeal despite the error.
15. That aside, once a material error of law is shown, I for my part would accept that the Tribunal must then decide what if any relief to grant in the light of the facts arising at the time it is considering the case. The appellant's skeleton argument prepared for the permission application accepts as much. The judicial review court, and this court on appeal in cases where our jurisdiction goes to legal error only, proceeds in precisely the same manner. In this particular jurisdiction, this position is effected by s 102 of the 2002 Act, which I have read."
- He went on to reject (at para 18) a submission made on behalf of the Secretary of State to the effect that so long as the IAT had granted permission to appeal on a point of law it was then empowered to review the merits of the matter on an up-to-date basis even though it did not in fact identify an error of law at the substantive hearing. He added (at para 30):
"… [T]he jurisdiction under s 101 of the 2002 Act forbids in effect the Tribunal deciding the merits itself unless at least it first concludes that the adjudicator's decision cannot stand because it is marred by error of law."
- In B v SSHD  EWCA Civ 61 this court ruled that the IAT was wrong to believe that once it had granted permission to appeal on a point of law, it had power ipso facto to review the adjudicator's findings of fact. In that case the grounds for the Secretary of State's appeal to the IAT had been ineptly drawn, but Lord Phillips MR said that this provided no excuse:
"The grounds form the agenda on which the IAT considers the grant of permission and, if granted, conducts the appeal."
- More recently, in Miftari v SSHD  EWCA Civ 481 this court allowed an appeal from the IAT because it could detect no error of law in the points raised by the Secretary of State on his appeal from the adjudicator. Buxton LJ set out three points of principle:
i) The Vice-President of the IAT who considers an application for permission to appeal must determine whether the IAT has jurisdiction to entertain the appeal on the basis of the grounds of appeal that are before him (subject to any amendment of the grounds he may invite and allow if he discerns a point the parties have not taken).
ii) At the substantive hearing of the appeal the IAT can only consider what is legitimately found in the actual or amended grounds, and has no jurisdiction to consider anything that is not there.
iii) Unlike a court, the IAT has to consider its jurisdiction expressly because it has to pass on the grounds of appeal. It is very difficult to see how a decision as to jurisdiction can be saved by demonstrating that although the basis on which it was taken was unjustified, the Vice-President could have granted permission on a different basis that was not before the court.
Although a Vice-President of the IAT granted permission to appeal in the Miftari case, Buxton LJ's comments apply equally to any legally qualified chairman who grants permission to appeal.
- Keene and Maurice Kay LJJ, agreeing, were both at pains to say that the principles set out by this court in R v SSHD ex p Robinson  QB 929 remained good law even though the jurisdiction of the IAT was now restricted. Maurice Kay LJ observed (at para 39) that the decision in Robinson
"enabled, indeed required, the immigration appellate authorities to consider an obvious point of Convention jurisprudence which may avail an appellant, even if it is not pleaded or otherwise advanced on his behalf. The rationale was that, if such a point were ignored on technical grounds, there will be a danger that this country will be in breach of its obligations under the Convention (per Lord Woolf MR, giving the judgment of the Court of Appeal, at p 946C)."
- He added, however, that he was not convinced that the decision in Robinson, which enables this court to hold that there had been an obvious point of Convention jurisprudence favourable to the appellant not taken by the IAT (such as to entitle the Court of Appeal to interfere on grounds of error of law even though the point was not on the agenda propounded by the appellant in his grounds of appeal to the IAT), could ever avail the Secretary of State.
- In Miftari it was sufficient for this court to decide the appeal on this basis. Because the Secretary of State had not included a meritorious ground of appeal in his notice of appeal to the IAT, the IAT had no jurisdiction to consider that ground at the substantive hearing of the appeal, and should not have decided the appeal in the Secretary of State's favour on that ground. (No question appears to have arisen as to whether the IAT could have granted the Secretary of State permission to vary his grounds of appeal at the hearing itself pursuant to Rule 20(1) of the Immigration and Asylum Appeals (Procedure) Rules 2003, although no doubt the IAT would ordinarily have been very slow to exercise their power to permit such a very late variation.)
Part 11 Buxton LJ's obiter observations in Miftari
- Buxton LJ, however, concluded his judgment in Miftari with some observations which, he recognised, were not necessary for the court's decision. Subject to the reservations they entered in relation to other parts of his judgment, Keene and Maurice Kay LJJ agreed with him. These observations, which we will now quote in full, are not binding upon us in this appeal; although we recognise, of course, the weight that should be given to the considered view of this court on a point on which all three members were agreed.
- In this passage Buxton LJ said:
"29. That suffices to dispose of this matter. However, we heard considerable argument as to the extent of the IAT's powers had a point of law been properly identified before it. I will go on to discuss those issues, not only because they are of some importance in themselves, but also because they shed some further, albeit indirect, light on the issues of jurisdiction.
The IAT's powers in an appeal on a point of law
30. It will be recalled that in paragraph 16 of its determination the IAT concluded that, since it had identified an error of law on the part of the Adjudicator, it could therefore look again at the case in the light of the factual evidence as it existed at the time of the IAT hearing. I cannot agree. Since the IAT now has jurisdiction to determine only points of law, it cannot put itself in the position of the lower court and decide the whole of the case as it stood there. Unless the decision on the point of law determines the case on the basis of the facts already found below, the IAT has to remit. That the IAT cannot itself enter upon the facts has already been emphasised in two judgments of this court. In CA Mummery LJ at paragraphs 39-40 rejected in emphatic terms a contention in the opposite sense by the Secretary of State. And in paragraph 20 of B the Master of the Rolls, referring to that and other reported cases, said that
'at the time of the IAT's decision in this case members of the IAT were under the misapprehension that, once permission to appeal on a point of law had been given, it was open to the IAT to review the Adjudicator's conclusions of fact.'
The same misapprehension appears to have obtained in the case before us.
31. The point is of some importance for the jurisdiction issue, because once it is assumed that the identification of any point of law opens the door to a general rehearing by the appellate body, the procedure becomes close to that in an ordinary civil appeal, where the appeal court does have all the powers of the lower court (CPR 52.10), and at least in the Court of Appeal has all the authority and jurisdiction of the court from which the appeal was brought (Supreme Court Act 1981, s 15(3)). That is very significantly different from the position of a tribunal, like the IAT, whose jurisdiction is limited to appeals on points of law. I would venture respectfully to agree with the similar observations, albeit in a different statutory context, of Mummery LJ in paragraph 42 of his judgment in Bangs v Connex South Eastern  EWCA Civ 14.
32. Some difficulty has been perceived in this connection from the continuation, by section 102(2) of the 2002 Act, of the IAT's power to receive evidence, including evidence of matters arising after the Adjudicator's decision. But this power is expressly limited to the receipt of evidence 'in reaching their decision on an appeal under section 101': that is, an appeal against an adjudicator's decision on a point of law. Therefore, as the President of the IAT stressed in paragraph 20 of the determination of the IAT in MA (fresh evidence) Sri Lanka  UKIAT 00161, such evidence must be relevant to showing that there was an error of law committed by the Adjudicator. And it may be added as a footnote that the more expansive view taken by this court in paragraph 92 of its judgment in E v Home Secretary  QB 1044 was, as the court itself emphasised, directed at the jurisdiction of the IAT before section 101 of the 2002 Act came into force.
33. In referring to that part of the President's determination I must not be taken as approving the further observations as to the need to look at evidence of events subsequent to the adjudicator's decision that are to be found in paragraphs 21-24 of that determination. The observations extracted from D (Croatia)  UKIAT 00032 that the President sets out are, with great respect, full of commonsense; but they are very difficult to reconcile with the limited jurisdiction of the IAT that I have referred to in paragraphs 30-31 above. Since there is no error of law in this case the point does not arise for decision. If it did, further consideration of the approach of the IAT in the Sri Lanka case might well have been necessary."
- We can say at once that in CA and B, in the passages cited by Buxton LJ in para 30 of his judgment, Mummery LJ and Lord Phillips MR were concerned with a quite different idea, vigorously promoted by counsel for the Secretary of State in CA (see para 16 of Laws LJ's judgment), to the effect that the IAT might look at the up-to-date merits of a case provided only that it had granted permission to appeal to itself on a point of law. Laws LJ gave very short shrift to this notion (in paras 16 and 18), Mummery LJ expressly agreed with him (at paras 39-40), and the Master of the Rolls repeated their conclusions in B (at para 20), in the passage quoted by Buxton LJ. What we are now concerned with is the quite different question, expressly left open by Laws LJ in CA (at paras 15 and 30: see paras 52 and 53 above), which relates to the courses of action that were open to the IAT under the new regime once it had detected an error of law.
- In at least three of the appeals with which we are concerned counsel sought to re-argue this question because these observations, if correct in law, have already been perceived to raise very great difficulties in practice. As it happened, it was in T (Eritrea), the final appeal in our list, that we heard the most sustained challenge by counsel for the Secretary of State to the correctness of this part of Buxton LJ's judgment in Miftari, but we did not then take steps to reopen the other appeals because we were able to decide them without recourse to our decision on this point.
- It might be thought that the matter is of academic interest only now that the IAT has ceased to exist and the powers of the AIT on a reconsideration of one of their own decisions are phrased in different terms. But quite apart from the presence in the Civil Appeals Office of a number of outstanding appeals from the IAT which date from the period in which their powers to interfere were limited, this passage in Miftari, if correct, calls into question the legal validity of all the CG determinations of the IAT during that period in cases where the IAT admitted new evidence and gave country guidance on all the up-to-date evidence that had been adduced. In NM and Others (Lone Women – Ashraf) Somalia CG  UKIAT 00076, for instance, the IAT heard three appeals in February 2005 in which the adjudicators' decisions had been made in June 2003 and August and September 2004 respectively. It was only on the first of these appeals that the IAT detected an error of law, but the voluminous material about Somalia which they listed in the appendices to their decision included many IAT decisions and reports of experts and international bodies which post-dated 23rd June 2003. If Buxton LJ is correct, then as he also recognised (see paras 32-33 of his judgment in Miftari) the IAT had no jurisdiction to enter upon this very valuable exercise at all in the way in which they undertook it.
- We would be very reluctant to differ from the considered view of three members of this court so recently expressed – albeit, not binding on us – unless we felt compelled to reach a different conclusion. This is particularly the case because another division of this court in HC v SSHD  EWCA Civ 893 at [25} has already applied para 30 of the judgment in Miftari in the belief that it was binding on them without any debate as to its correctness (although this aspect of the matter did not affect the result of that appeal). But the powerful arguments addressed to us by the Secretary of State in these appeals deserve and demand a careful reappraisal of the meaning of ss 101 and 102 of the 2002 Act. If we are to obtain a proper understanding of Parliament's intentions in enacting these alterations to the previous statutory scheme, it is incumbent on us to understand clearly the whole of the new scheme, and not merely parts of it.
- Under the new regime introduced by the 2002 Act, the adjudicator was the fact-finder and the IAT the reviewing body: the IAT had no power to re-hear the appeal (see, by contrast, the express powers of the Court of Appeal in CPR 52.11 to hold a re-hearing, to receive oral evidence on the re-hearing, and to draw inferences of fact). It was the duty of the adjudicator, as the fact-finder, to determine whether the removal of the appellant would breach the UK's obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act. It was the duty of the IAT as the review body to determine whether the adjudicator's decision was vitiated by an error of law.
- We have set out the relevant elements of s 102 in para 5 above. The language of s 102(2) ("In reaching their decision on an appeal under section 101 the Tribunal may consider evidence about any matter which they think relevant to the adjudicator's decision, including evidence which concerns a matter arising after the adjudicator's decision") appears to have been borrowed from s 77(3) of the 1999 Act:
"(3) In considering –
(a) any ground mentioned in s 69, or
(b) any question relating to the appellant's rights under Article 3 of the Human Rights Convention,
the appellate authority may take into account any evidence which it considers to be relevant to the appeal (including evidence about matters arising after the date on which the decision appealed against was taken)."
This statutory provision was considered by the IAT in their starred decision in S & K (Croatia)  UKIAT 05613 at paras 19-22.
- When this language was transposed to s 102(2) of the 2002 Act, the draftsman decided not to limit the power to consider new evidence to the time when the IAT was considering any ground of appeal or any question under ECHR Article 3 (as in s 77(3)(a)). Instead this power was to be available to the IAT when they were reaching their decision on the appeal, and the words "their decision" would ordinarily be understood to refer to a decision to take one or other of the six courses open to them under s 102(1) once they had identified an error of law in the adjudicator's decision.
- Indeed, it is not at all clear to us how it could be thought legitimate or relevant for the IAT to consider evidence which concerned a matter arising after the adjudicator's decision at the stage when they were considering whether the adjudicator had made an error of law. The examples of cases where the appellate courts have been willing to take into account evidence of matters arising after a trial at first instance (see paras 34-35 above) show that these powers were not invoked to show that the lower court had made an error of law - indeed, the idea that a first instance judge had erred by failing to take into account matters which by definition he could not possibly have known about unless he was a soothsayer is one worthy of Lewis Carroll - but to enable the appellate court to arrive at a just result through using the powers open to it to correct injustice (for which in the context of the IAT see para 5 above).
- The power to consider matters that arose after the adjudicator's decision would of course be highly relevant when the IAT was considering what course they should take after they had detected an error of law. They were, indeed, given an express power to make any decision the adjudicator could have made. If they decided that the adjudicator had committed an error of law when dismissing an appeal, they were empowered to consider for themselves afresh whether the appellant's removal from this country would breach this country's obligations under the Geneva Convention or would be incompatible with the appellant's ECHR rights. To perform this role they must inevitably consider the up-to-date position, for the reasons identified by this court in Ravichandran (see paras 41-44 above).
- If Parliament had not intended them to perform that role, it would hardly have conferred on them in primary legislation the power to admit evidence of changed circumstances. Their power to remit the case to the adjudicator under s 102(2)(c), whether to make fresh findings him/herself (s 102(4)(a)) or to make findings and then remit the appeal back to them for decision (s 102(4)(b)), would have been quite sufficient, and the ordinary power to admit further evidence on an appeal could have been conferred by procedural rules. (Compare Rule 27(3)(a) of the 1996 Rules, for which see para 40 above. The equivalent provision in the Immigration and Asylum Appeals (Procedure) Rules 2003, Rule 21 is strikingly different from Rule 27(3)(a) of the 1996 Rules - and indeed Rule 22(2) of the equivalent rules made in 1999 - because it confers no express power on the IAT to admit further evidence: this power is provided for exclusively by primary legislation, and the procedural rule is purely regulatory).
- For these reasons, we are satisfied that the words "in reaching a decision on an appeal under s 101" embraced the entirety of the IAT's decision on the appeal and are not limited to the first stage of a successful appeal, at which the IAT was considering whether the adjudicator made an error of law. Maurice Kay LJ, who was a member of the court in Miftari, is convinced that this conclusion is right, having heard much fuller argument on this occasion than was available to the court in Miftari.
- The interpretation of s 102(2) which we prefer would leave unimpaired the IAT's power to give CG decisions on up-to-date evidence, as they did in NM (Somalia) CG (see para 63 above), provided only that they had first detected an error of law in the adjudicator's decision.
- The mischief which s 101(2) was enacted to correct was surely the endless streams of appeals to the IAT by appellants seeking, very often on spurious grounds, to dislodge the findings of fact made by an adjudicator about an appellant's personal circumstances, after the adjudicator had usually heard and seen the appellant giving evidence, an advantage generally denied to the IAT. We can identify no good reason why Parliament should have wished at the same time to deprive the IAT of their beneficent and valuable role in giving country guidance decisions, even though the occasions on which they would now be able to perform that role would be limited to those occasions when the adjudicator had made an error of law. This conclusion of ours follows the grain of what Laws LJ said in his judgment in CA (see paras 52-53 above) at paras 15 and 30:
"[O]nce a material error of law is shown, I for my part would accept that the Tribunal must then decide what if any relief to grant in the light of the facts arising at the time it is considering the case." (para 15)
"[T]he jurisdiction under s 101 of the 2002 Act forbids in effect the Tribunal deciding the merits itself unless at least it first concludes that the adjudicator's decision cannot stand because it is marred by error of law." (para 30)
- Since the hearings ended we have been told by counsel for the Secretary of State that there appears to be no relevant White Paper, Parliamentary Statement or other document which shows that Parliament intended to retain the IAT's power to reopen factual matters once the error of law gateway had been passed. This, we fear, may be the reason why difficulties have now arisen in practice, because points of this complexity may not have been clearly identified and talked through in the public and Parliamentary discussions which preceded the enactment of the 2002 Act. However that may be, in the light of the very great importance of the IAT's role in achieving consistency in decision-making through their CG decisions, we are satisfied that it would require very clear Parliamentary language before we could discern an intention that this role should be abandoned, and of this there is none.
- In these circumstances it is clear to us that what Buxton LJ said in the obiter passage of his judgment in Miftari (see para 60 above) was stated without the benefit of all the argument we have now heard, and that it should not be followed.
Part 12 The application of these principles to the five appeals
- The question whether the IAT could properly consider matters that came to light by way of country background after the date of the adjudicators' decisions arose in different guises in M and T (Afghanistan), and in T (Eritrea). However, the three appellants in these cases faced significant difficulties in surmounting the difficulty that the IAT now had to identify an error of law before they could exercise any of their powers in s 101(2), or in taking advantage of the decision in E and R.
- In M and T (Afghanistan) the appellants were seeking to rely on a decision by the IAT in RS (Hibi-e-Islami – expert evidence) Afghanistan  UKIAT 00278, which was promulgated after both the adjudicators' first instance decisions. In that case the IAT recited with approval the expert evidence of Dr Lau, an academic from London University, who was concerned to identify the risks currently faced by those suspected of involvement with Hisb-e-Islami, a radical Islamic group, on their return to Afghanistan. Both M and T had fought as members of that group ten years previously.
- We would have been willing to hold that insofar as this evidence referred to country background matters prior to the adjudicator's decision, these appellants should not have been barred by the first rule in Ladd v Marshall from adducing this evidence in support of an appeal to the IAT based on errors of fact. But it would be stretching Carnwath LJ's decision in E and R impossibly far to say that the adjudicators had made errors of law on the grounds that they had made mistakes of fact that resulted in unfairness through their ignorance of Dr Lau's views and the evidential material he adduced.
- Carnwath LJ was concerned in E and R with a fact or evidence which must have been "established" in the sense that it was uncontentious and objectively verifiable. We have set out the practical examples he gave in para 29 of this judgment. The main thrust of Dr Lau's report was drawn from what a number of people had told him. Other people said different things to Danish fact-finders, and if we were to accept Mr Gill's submission we would be reintroducing an appeal based on errors of fact through the back door, and this cannot have been Parliament's intention.
- In T (Eritrea) the appellant's problems were even more pronounced. In that case the appellant sought to rely on a UNHCR report that was published ten days before the hearing before the adjudicator, and the IAT's CG decision in MA (Female draft evader) CG  UKIAT 00098, which was published four months later. On the adjudicator's findings the case before him related to the risks faced by an Eritrean lady who, he found, was not a conscientious objector, but had made this assertion shortly before the hearing in order to bolster her asylum claim. The UNHCR report to which we have referred highlighted for the first time the potential risks that faced those perceived to be draft evaders, and this was the topic addressed by the IAT in their CG decision.
- Again, we would not have been disposed to hold that the UNHCR evidence should have been excluded through a rigid application of the first rule in Ladd v Marshall if appeal lay to the IAT on issues of fact. As it was, we were unable to detect any error of law in the way the adjudicator handled the evidence before him, and we dismissed the appeal on this ground.
- Mr Gill argued in M and T that if we were to adopt this approach there was a danger that like cases would not be determined in the same way: for this important principle see para 22 above. When we observed that it would be open to his clients to make representations to the Secretary of State based on changed circumstances pursuant to rule 353 of the Immigration Rules, he was unenthused by this prospect. This was, we believe, partly because he was used to a post-Ravichandran appellate regime in which all these matters could be resolved by the IAT in what was intended to be a one-stop jurisdiction. It was also partly because of the length of time, in his and his instructing solicitors' experience, that the Secretary of State habitually takes to decide such applications (coupled with the prospect of judicial review proceedings if he then makes a decision that can be challenged on a point of law). During this waiting period, he told us, his clients will be disadvantaged in relation to the benefits available to them as compared with clients who are still within the appellate process.
- The views of experienced counsel and solicitors deserve respect, but however well based and sincerely held they may be, they cannot draw us away from the inevitable consequences that had to follow when Parliament decided to restrict the scope of appeal to the IAT to errors of law. Under this new scheme, the decision of the adjudicator was to be final, unless it was found to be vitiated by an error of law, and arguments based on changed circumstances now had to be addressed to the Secretary of State, not the IAT, if no error of law was found.
- R (Iran) is a case where the IAT detected an error of law, in that the adjudicator had failed to make findings on a relevant issue. They then attempted to make findings themselves on a wholly artificial basis, namely that everything said by the appellant in his interview with an immigration officer should be presumed to be true, and any additional evidence he gave in his witness statement should be presumed to be false. There is an unhappy dispute between the IAT and counsel who then appeared for the appellant as to whether this was a course to which he had assented. However that may be, the IAT did not in practice give credence to everything said in the interview, and we were satisfied that this was a case that should be remitted to the AIT for reconsideration on this limited issue, on which the appellant should give factual evidence untrammelled by any artificial presumptions.
- This case affords a good example of the way in which under the appellate regime in the 2003-5 period remittal to an adjudicator would normally be the appropriate course when factual evidence relevant to the appellant had to be investigated further once an error of law had been detected in the original decision. Factual evidence relating to country background matters was quite another matter.
- The appeal in A (Afghanistan) cast light on the circumstances in which the IAT may interfere with a decision by an adjudicator under Article 8 of the ECHR to the effect that it would be disproportionate to interfere with an appellant's family life in this country by sending him back to his country of origin.
- A is a 30-year old Afghan man who joined the rest of his family in this country three months before the adjudicator's decision. His father was dead. His mother and two of his siblings had succeeded in their claims for asylum, while two other brothers had been given exceptional leave to remain for a further two years.
- The first question we had to decide in A was whether the adjudicator did correctly direct himself as to the nature of his task. If he did, it would be difficult for the IAT to interfere with his decision as a matter of law, as they did, merely because he gave more weight to certain matters and less weight to others. In the event we concluded that he did not, because he decided the appeal before the decision of the House of Lords in Razgar (see para 18 above), and concentrated on the difficulties facing the appellant (and his family) and not at all on the consideration to be accorded to immigration control. He also committed an error of law by paying no regard to the existing jurisprudence on family life in relation to adult siblings.
- The IAT were therefore entitled to set his decision aside and determine the question afresh as if they were in the adjudicator's shoes. We were able to detect no error of law in their approach, and we therefore dismissed A's appeal.
Part 13 A summary of the main points in this judgment
- It may now be convenient to draw together the main threads of this long judgment in this way. During the period before its demise when the IAT's powers were restricted to appeals on points of law:
1. Before the IAT could set aside a decision of an adjudicator on the grounds of error of law, it had to be satisfied that the correction of the error would have made a material difference to the outcome, or to the fairness of the proceedings. This principle applied equally to decisions of adjudicators on proportionality in connection with human rights issues;
2. A finding might only be set aside for error of law on the grounds of perversity if it was irrational or unreasonable in the Wednesbury sense, or one that was wholly unsupported by the evidence.
3. A decision should not be set aside for inadequacy of reasons unless the adjudicator failed to identify and record the matters that were critical to his decision on material issues, in such a way that the IAT was unable to understand why he reached that decision.
4. A failure without good reason to apply a relevant country guidance decision might constitute an error of law.
5. At the hearing of an appeal the IAT had to identify an error of law in relation to one or more of the issues raised on the notice of appeal before it could lawfully exercise any of its powers set out in s 102(1) of the 2002 Act (other than affirming the adjudicator's decision).
6. Once it had identified an error of law, such that the adjudicator's decision could not stand, the IAT might, if it saw fit, exercise its power to admit up-to-date evidence or it might remit the appeal to the adjudicator with such directions as it thought fit.
7. If the IAT failed to consider an obvious point of Convention jurisprudence which would have availed an applicant, the Court of Appeal might intervene to set aside the IAT's decision on the grounds of error of law even though the point was not raised in the grounds of appeal to the IAT.
- Although we have phrased this guidance in relation to the appellate regime that came to an end in April 2005, with the demise of the IAT and the birth of the AIT many of the principles we have set out in this judgment will be equally applicable when issues arise as to the identity of an error of law under the new statutory regime.
Part 14 Appeals to the Court of Appeal
- Finally, so far as access to this court is concerned, the Court of Appeal has traditionally shown itself willing to take an appropriately modest view of its supervisory role when invited to grant permission to appeal from decisions of specialist tribunals: (see Cooke v Secretary of State for Social Services  EWCA Civ 734;  3 All ER 279; Napp Pharmaceutical Holdings Ltd v Director-General of Fair Trading  EWCA Civ 796,  4 All ER 376: and compare now Hinchy v Secretary of State for Work and Pensions  UKHL 16 at . In Koller v SSHD  EWCA Civ 1267, however, this court distinguished its approach in relation to appeals from decisions of the IAT on the grounds that such appeals often raise complex issues of fact and law; the law was still developing; and it had been the experience of this court that determinations of some panels of the IAT were of uncertain quality.
- Much has changed since then. In particular, the influence of High Court judges as President of the Tribunal has led to a noticeable improvement in the quality of decision-making; reconsideration of a decision of the AIT is restricted to issues of law; and the law is, temporarily at any rate, in a far more settled state than it was when Koller was decided. In future this court will be slower to grant permission to appeal in these cases. For a fuller exposition of the relevant principles, see the judgment of Carnwath LJ in Akaeke v SSHD  EWCA Civ 947 at paras 26-30.
A. R (Iran)
- R is a citizen of Iran. He arrived in this country in November 2000, at the age of 23, and claimed asylum on arrival. On 15th July 2003 the Secretary of State refused him leave to enter and gave removal directions.
- The adjudicator found that he attended the university at a city in Iran between 1998 and 1999. In July 1999 he was arrested while he was distributing leaflets encouraging students to take part in the student uprising that was due to take place a week later in Tehran. He was detained for 88 days, until after the uprising had been quelled, and he was then released without charge. He was interrogated about once every ten days. Although he was made to stand in his small cell, and was given food only once a day, and complained of being treated in a degrading manner, he was never attacked or tortured. On his release he was told that a file of his detention would be kept for record purposes.
- On his release he was dismissed from the University and went back to live with his father. His parents had separated in the early 1990s, and his mother, who was very rich, lived in a city close by. He was not restricted in any way when he went to see his mother and his siblings at his mother's home, and he had enough money to live on without having to seek work. Instead, he helped his father in a campaign to recover family lands which had been confiscated at the time of the 1979 Revolution because his father had worked as a doctor in the armed forces of the Shah. His father's attempts to recover his lands through legal channels, without recourse to the courts, all failed. During the campaign his father gave him a power of attorney, enabling him to sign letters on his father's behalf.
- Eventually his father confronted the local Ayatollah, following prayers in the mosque one day. He told him of documentary material he possessed which related to corrupt practices in which the Ayatollah engaged, and as a result the Ayatollah had his father arrested. At the relevant time, R was staying with his mother. He heard of his father's arrest from a cousin, and with the help of his mother and a maternal uncle it was arranged that he should leave Iran. He left by bus and foot without a passport, and after spending 20 days in Istanbul, he flew from Turkey to England with a passport which an agent supplied to him. He claimed asylum on arrival.
- The adjudicator had the benefit of background country material and the report of an expert on Iran, Ms Enayat. The adjudicator said that R's case at interview was in relatively short compass, but his later statement had embellished and exaggerated his evidence. However, she found the appellant credible, and believed that the main parts of his claim were true. She felt that during his time in this country he had reflected on his claim, and added to it so as to create an asylum claim. She said that the background material spoke of the treatment of students arrested in the course of the uprising, of journalists being arrested without reason, and of people who had a long association with known militant groups, but the appellant did not fit into any of these categories. He admitted that he did not belong to any party: he simply became involved because everyone else was.
- The adjudicator said that at best he had a fear because of his imputed political opinion. She dismissed this on the facts as not forming a basis for a valid asylum claim, and there is no appeal against that decision. She said that all he had to fear was the possibility of a short period of imprisonment as a punishment for leaving Iran illegally.
- The central issue that arose on the appeal to the IAT was that the adjudicator did not address the second limb of R's claim for asylum, which was centred on a contention that he had a well founded fear of persecution following his father's arrest for endeavouring to blackmail the local Ayatollah. In order to consider the merits of this claim, it is necessary to say something about the way in which the appellant's evidence emerged after his arrival in this country.
- Contrary to the usual practice, he did not provide a statement of evidence before he was interviewed by an immigration officer on 29th November 2000, eight days after his arrival. An interpreter was there, but he had no representative present at the interview. He replied to some simple "tick-box" questions by saying that he feared persecution on account of his political opinions and for avoiding military service. The latter claim was never effectively pursued.
- He said he had ticked the "political opinion" box because his family were against the local Imam, and could not accept his views. It was he who had taken over all their lands, which consisted of 124 hectares of agricultural land. He said that this presented a problem for himself as well as for his father because after he was dismissed from the university he had looked after all the court hearings and paperwork and had gone to all the different offices. He then went on to talk about his arrest and detention.
- After being asked questions about this, he said he had not come to this country merely to avoid military service. His dismissal from the university was one reason, and the land dispute was another. He said that the local Imam was head of the clergy, and that he had confiscated the lands on behalf of the Government and divided them amongst the revolutionary guards. He had left the country because he had been involved in all the complaints and in going to court, and he had signed all the papers on his father's behalf under the power of attorney. They did not arrest him as well as his father because he was at his mother's home at the time. A cousin told him of his father's arrest and how his father's house had been searched. He explained that when the father had seen the clergyman he had asked him if he could have his lands back and told him that he possessed documents which could reveal a lot of things against him.
- He said that this was not a case of blackmail. The public court had told his father that this clergyman was keeping the relevant file, and without the file they could not achieve anything. It was as if the clergyman had a personal grudge and hatred against his father. They could not go elsewhere in Iran and seek redress from the central justice authorities because the clergyman was the God, and the representative of the Head of the State.
- At the end of the interview the appellant said that he had wanted to explain more things and details to the interviewer, but had been muddled by the way the questions had been asked. He was told he had an opportunity to state his case in writing within five days.
- He did not apparently avail himself of this opportunity. In his letter of refusal, dated 11th July 2003, the Secretary of State dealt with this part of the matter quite briefly. He noted R's fear of returning to Iran because he had been assisting his father with a land dispute with an Imam and claimed that his father had been arrested, but he did not consider that this was something that engaged this country's obligations under the 1951 Convention. If he considered that his father had been arrested unjustly, he should take this up with the authorities in Iran rather than bring it to international attention.
- He then made a statement, dated 11th September 2003, in connection with his asylum appeal. He responded in paras 11-19 of that statement to the Secretary of State's comments about the relevance of the land dispute, when he gave a great deal more information about the history of the dispute and of the involvement of the local Ayatollah. He described the information his father and he had gathered which was to the detriment of the Ayatollah, and said that he had written a list of these activities, which his father and he were intending to distribute in leaflet form. His cousin had told him that the security officers had been asking questions about his whereabouts, and he believed that they had found the leaflets and that this was the reason why they were looking for him. He was too scared to go home because he knew that this would be the first place the security officers would check. He knew that it was no longer safe for him to remain in Iran, as he believed that they would eventually find him.
- This statement was supported by a 34-page report from Ms Enayat. She referred to R's comments on the land dispute on pages 6-9 of that statement. She said that if R's father had threatened the Ayatollah with exposure in the way described in his testimony, he would most certainly have been arrested and the family home would have been searched. If evidence were found of any association on R's part with his father's activities then the authorities would seek to arrest him as well. Given the fact of his earlier arrest and detention, R's situation would be serious. The matter would not be viewed simply as a case of blackmail but of opposition to the state.
- Permission to appeal to the IAT was granted because R's complaint that the adjudicator had failed to consider the entirety of the risk arising out of his account (which she had apparently found credible) appeared to be arguable.
- The IAT said that the adjudicator's conclusion on credibility was not without its difficulties: clearly she had accepted parts of his account and rejected others as embellishment. It would have been open to him to seek a remittal of the appeal on the basis that the adjudicator's findings of credibility and fact were unclear. That, however, was not the course he had pursued in the grounds of appeal or in his counsel's submissions to the IAT. They said that counsel had resisted any suggestion that the appeal should be remitted, and that they had accepted his counsel's submission that they should decide the appeal on the basis that the adjudicator had accepted the appellant's evidence in interview and rejected the amplification of his claim in his later statement. We should make it clear that Miss Plimmer, who appeared for R in the Court of Appeal, did not act for him in connection with the proceedings before the IAT.
- The Crown also did not seek a remittal. There is an unhappy dispute between the IAT and counsel about what in fact happened. Counsel asserts that the IAT never offered the possibility of remitting the appeal for a further hearing by an adjudicator, and he strongly disagrees with the statement that he resisted any suggestion that the appeal should be remitted, this being an option, he said, which was never raised with either of the parties.
- The IAT said that it was apparent that the principal element of R's claim involved the Ayatollah, who was the supreme leader in the relevant province. They recorded the appellant's evidence about what happened, and said that the adjudicator failed to deal with this aspect of the appeal at all, so that her determination did not engage with the issues the appellant had raised. They then referred to Ms Enayat's evidence and to a May 2004 Amnesty International report which was relied on for a contention that it was common practice in Iran for family members to be targeted.
- The IAT then proceeded to examine the available evidence about the land dispute and the role of the Ayatollah in some depth. They considered that the nature of the father's confrontation and his subsequent fate were central to R's claim for international protection. They said that there was no reason to infer that the Ayatollah would target R as a simple act of further revenge. There was no credible evidence that R's family had been targeted and the fact that R had his father's power of attorney did not represent such an additional significant factor as to place him in a different position of risk from the other family members.
- They observed that the land dispute had been continuing for many years. R did not suggest that he would be bound to revive the litigation on his return. If his family had to give up such rights to this land as they possessed, this might be hard on them, but the Refugee Convention does not operate to protect rights in property. The family had pursued a legal course in trying to recover their land, and whether or not they succeeded in its recovery, their attempt to do so could not be seen as subversive.
- They concluded by saying that although the adjudicator did not deal with the issues they had set out in their determination, they were persuaded that they were in a position to assess risk on return on the basis of the findings of fact the adjudicator had made. On that basis, they were not satisfied that R's account gave rise to a reasonable likelihood that he would suffer persecution or adverse consequences on his return. Whilst they adopted a different route from that used by the adjudicator, they had reached the same ultimate conclusion, and R's appeal was therefore dismissed.
- It appears to us that once they had identified the adjudicator's error of law, the IAT ought to have remitted this appeal to the adjudicator so that she or another adjudicator could make clear findings of fact on the issues that had been left unresolved. Instead they attempted to resolve the appeal themselves on an artificial basis, and they did not appreciate that the appellant had given relevant evidence in his interview (see paras 102-103 above) about his fear that incriminating documents that implicated him may have been found at his father's house. This was evidence which the IAT presumed to be true on the artificial way in which they dealt with the matter, and they did not take it into account in their conclusions (see para 113 above).
- This case provides a good example of the way in which under the new regime it was much better for the IAT to remit cases to an adjudicator if factual findings relevant to the appellant were required: factual findings on country guidance issues were quite another matter.
B. A (Afghanistan)
- A was born in Afghanistan in June 1972. He arrived in this country on 22nd April 2003 and claimed asylum at the port of entry. On 30th April 2003 the Home Office refused to grant him asylum or leave to enter. A then appealed to an adjudicator. He is the eldest son of the family and he has lived with his mother, one of his sisters, and two of his brothers in Sheffield ever since he arrived here. Some of the members of his family have refugee status and some have been granted exceptional leave to remain.
- His claim for asylum was founded on a fear of persecution in Afghanistan due to his attitude towards Jihad and his conversion from Islam to the Zoroastrian religion. He claimed that he left Afghanistan in about 1995 because he objected to the excesses of Islam. He said that his friends warned him that people in Kabul had become suspicious that he had become an "infidel" and that his life was in danger because he had spoken out against Islam. In these circumstances he felt threatened by people in his area, and he said that there was no effective police force. He went from Afghanistan to Iran where he lived for eight years before coming to this country. He said that although Iran is an Islamic country, the people there were more educated than in Afghanistan, and his presence was tolerated because many people were fleeing Afghanistan and he had a type of "displaced persons" status. Alternatively he claimed that his removal from the UK would breach his right to family life under Article 8 of the ECHR.
- So far as the ECHR issue is concerned, in his refusal letter the Secretary of State said that he did not accept that A had an established family life in this country because he was now 30 years of age and had lived apart from his family for the past eight years. They were not reliant on him, nor he on them. Furthermore, his family's problems in Afghanistan were due to the Taliban, and now that the Taliban had been removed from power there was nothing to stop his family joining him in Afghanistan if they so desired.
- On 8th August 2003 an adjudicator dismissed his asylum appeal on the facts, and it is now no longer pursued. He found, however, that A's removal would be disproportionate to his right to family life under Article 8 of the ECHR ECHR and he allowed his appeal on that ground.
- On 26th August 2004 the IAT allowed an appeal by the Secretary of State on the grounds that the Adjudicator had erred in deciding that there was family life or that if there was, it was disproportionate to remove A. A now appeals to this court by permission of Buxton LJ.
- The reason why Buxton LJ granted A permission to appeal was that this court had not yet determined whether an adjudicator's decision on the proportionality of removal under ECHR Article 8 was a question of law (giving the IAT jurisdiction to intervene) or a question of fact (on which the IAT can no longer hear an appeal).
- The decision of the adjudicator was promulgated on 8th August 2003, well before R (Razgar) v SSHD  UKHL 27;  2 AC 368 had been decided in the House of Lords. The adjudicator made little reference to legal principle in the context of Article 8. He said:
"So far as consideration of the human rights appeal is concerned I must consider whether there is substantial ground for believing that there is a real risk the appellant's rights under the ECHR will be breached as a result of the respondent's decision."
Turning to his findings, he said:
"I do accept the appellant's family are now in the UK some of whom have refugee status and some exceptional leave to remain. … I accept the appellant lives with his family. Indeed there has been no suggestion he does not. I accept he has a family life with them. I have considered carefully whether removal of the appellant to Afghanistan will be disproportionate having accepted it would be in pursuit of a legitimate aim and would interfere with his family life. His family have been offered international protection by the UK and some given indefinite leave to remain.
If the appellant were to be sent back to Afghanistan there is no evidence before me that he would be able to apply to return here or indeed at present whether he would be given any visa. In reality even if he were able to get a visa there would be the cost implications of trying to get funds together for the trip to this country. This might prove to be impossible in any regular way. Returning this appellant to Afghanistan would mean he would be separated from a family that has already undergone incredible upheaval and has come from a place that has endured the most awful recent history. In the above circumstances I believe his removal would be disproportionate. All of his close family are in the UK and separating him from his family again would in my view be disproportionate to the aim pursued."
- When the Secretary of State obtained permission to appeal to the IAT his grounds of appeal raised a number of matters including a submission that the finding of the adjudicator on proportionality had been erroneous and that the adjudicator had further erred when ignoring the fact that all the members of the family were adults. Reference was made to the case of Salad  UKIAT 06698 to the effect that, in relation to adult siblings, there would usually be a need to establish elements of dependency going beyond normal emotional ties.
- The IAT, in allowing the appeal of the Secretary of State, held (at para 11) that:
"The adjudicator clearly fell into error either on the basis that there is not family life in this case or that if there is it is not of such a nature and quality as to render the claimant's removal disproportionate."
- In other words each of the grounds of appeal to which we have referred were held to be substantiated because of legal error on the part of the adjudicator. In our judgment, the Tribunal was correct to identify these as legal errors. The conclusion of the adjudicator about family life paid no regard to the existing jurisprudence on family life in relation to adult siblings, and the approach to proportionality was flawed because it concentrated on difficulties facing the claimant and not at all on the consideration to be accorded to immigration control. The Tribunal stated (at para 11):
"We do not consider that the circumstances of this case indicate that removal would be disproportionate given the weight that should properly be attached to the maintenance of fair and effective immigration control."
No reference was made to Razgar, which had been decided in the House of Lords some months earlier, but the approach of the Tribunal was consistent with both Razgar and the later decision of the Court of Appeal in Huang v SSHD  EWCA Civ 105.
- We are in no doubt that the IAT had jurisdiction to interfere with the determination of the adjudicator in this case and that they were correct to allow the appeal of the Secretary of State. A's appeal to this court cannot succeed. He is unable to bring himself within the exceptional category demanded of those who base their claims on Article 8 in the light of what Lord Bingham said in Razgar (at para 19) and what this court said in Huang (at paras 59-60). The decision of the IAT preceded Huang. It is apparent from the latter case that it is impossible for A to establish an error of law on the part of the IAT which, if anything, expressed the legal principle on the issue of proportionality in terms more favourable to A than the recent authorities prescribe.
- Before the adjudicator A had been represented by his solicitor, and before the IAT he had been represented by experienced counsel. Before this court he acted in person. He has submitted a number of letters which show what a valuable life he has been leading since his arrival in this country two years ago, but these cannot affect the legal issue we have to decide. He also sought to emphasise his role in the family following the death of his father nine years ago. He says that as the eldest son he is the head of the family and has responsibilities in that regard, particularly in the light of his widowed mother's ill health. However, this perspective does not seem to have been referred to before the adjudicator or the IAT. It has attained prominence only in the course of oral submissions to this court. In these circumstances, we are unable to hold that the IAT fell into legal error by ignoring it or that the determination of the Tribunal can be characterised as legally erroneous on the basis of a mistake of fact of the kind contemplated in E and R.
C. M and T (Afghanistan)
- M and T are Pashtun Sunni Muslims from the north of Afghanistan. They were both associated with the Hisb-e-Islami party, which was led by Gulbuddin Hekmatyar. He was Prime Minister in 1996, but he fled to Iran when the Taliban came to power in 1998. Because the Taliban came from the same ethnic roots as the Pashtuns, M and T looked to them for support against the Uzbeks, Tajiks and Hazaras, who have dominated northern Afghanistan since the fall of the Taliban at the end of 2001. These two cases are concerned with the risks facing those formerly linked with Hisb-e-Islami, as assessed by the material available to the adjudicators at the time of their decisions on 9th February and 3rd March 2004 respectively.
- M was born in Afghanistan in 1971. He comes from a province in the north of the country. His family moved to a different province when the Mujihadeen came to power. M helped his father farm the land until his father died, and his uncle then looked after the family. He lived in Mazar-e-Sharif with his mother and brother, and eventually with his wife and four children also.
- During the Russian invasion his uncle joined the Hisb-e-Islami, and he played an important role in that party as a local commander. From an early age M assisted his uncle and learned how to fight. In 1990-1994 he acted as his uncle's bodyguard and driver when his uncle was fighting against the Mujihadeen. His uncle was disliked by opposition parties and was regularly targeted by them. As Pashtuns, M's family were in the minority in Mazar-e-Sharif, and they were targeted by Uzbeks, Hazaras and Tajiks.
- When the Taliban came to power early in 1998, they made an unsuccessful attack on Mazar-e-Sharif. Because his uncle did not fight against the Taliban, whereas other parties did, the family then became even more unpopular. In August 1998 the Taliban eventually took control of the town, and M's uncle was then given the role of local leader, in which respect he was much hated.
- After the attack on the Twin Towers, M and his uncle were at first forced to fight for the Taliban at the front against the Northern Alliance. His uncle was killed, but A escaped and went to another province. He eventually went into hiding and decided he did not want to fight any more.
The Hisb-e-Islami and Gulbuddin Hekmatayar
- The Hisb-e-Islami is a radical Islamist group. The Home Office CIPU report described their leader in these terms:
"Hekmatyar was at one time supported by Pakistan and Saudi Arabia, but eventually Pakistan turned against him preferring to give support to the Taliban. Hekmatyar fled Kabul when the Taliban swept to power and was given refuge by the Iranians. His vocal opposition to the new president Karzai was an embarrassment to the Iranian government who expelled him in February 2002 and closed his offices in Tehran. A number of his supporters were detained in Kabul in April 2002, accused of conspiring to plant bombs. Hekmatyar himself remains elusive although there are reports that he is in Afghanistan. Hekmatyar was designated as a terrorist by the US on 19th February 2003."
The adjudicator's findings in M's case
- The adjudicator said that she did not believe that M's involvement with Hisb-e-Islami until 1994 would now give rise to a well founded fear of persecution. She did not believe that M's uncle was a high-ranking commander, nor that M would be instantly recognisable ten years later as being connected with his uncle, especially as his uncle had now been dead for some years. She did not believe that even in his home province M would be recognised as a former Hizb-e-Islami member. Elsewhere in Afghanistan he would be at no risk at all.
M's appeal to the IAT
- M appealed to the IAT on the grounds that Afghanistan is a country in which such allegiances are not forgotten. The objective evidence contained many examples of old scores being settled in the aftermath of the fall of the Taliban. The Northern Alliance, which holds very significant power in the Transitional Administration, is made up of many warlords who were active fighters during the period in which M fought for the Hisb-e-Islami. Para 4.64 of the CIPU report suggested that those associated with that party would be regarded with hostility by the Transitional Administration. Because M would be returned to Kabul, this factor was highly relevant to the question whether he would be at risk of persecution or inhuman or degrading treatment by the Northern Alliance in Kabul.
- The IAT said that the correct approach must be that the adjudicator was entitled to take her own view of the background evidence, so long as it was a reasonable one, and so long as she dealt with every point of any serious relevance. After referring to the CIPU report, an IAT case described as No 32  UKIAT 08360, and other evidence, the IAT said that there was nothing to show that there had been any systematic system of checking and enquiry into the history of those returned to Kabul Airport. While it might be the case that persons known to have a history of interest would be at risk, this did not follow in the present case. A person who had been a bodyguard and driver was of questionable relevance. The adjudicator had been well entitled to decline to find that M's relationship with his uncle would leave him at any real risk on his return ten years later. The adjudicator's findings were not illogical.
- T was born in 1970 in a different province in Afghanistan. He is married with three children, but now has no direct contact with his family. His brother was a commander in the Hisb-e-Islami, and T assisted him. He took part in the war against the Russians. At the end of 1995 his home province fell to the Taliban, and he was forced to fight against the Northern Alliance. When the Taliban were overthrown, the Northern Alliance came to power in his village, and they asked his mother about his whereabouts. This is what led him to fear persecution if he returned.
- He last saw his brother at the time when the Taliban were removed from power. His uncle advised him to leave Afghanistan. He arrived in England in April 2002 and claimed asylum on arrival.
- He had also lived in Kabul during the Taliban regime, and he was well known there. He said that if he were returned to Kabul, everyone would know him. He had heard that two commanders belonging to Hisb-e-Islami had been taken away, and he feared that the same thing would happen to him. He had left Afghanistan because he was in fear of a particular Northern Alliance commander, whom he named, whose village was only half an hour away from his own village.
The adjudicator's findings in T's case
- The adjudicator accepted that T might have had some involvement with Hizb-e-Islami and fought against the Russians, and to some extent against the Northern Alliance. He doubted very much if any member of the Northern Alliance had any interest in him. It was clear that he had simply followed orders as a foot-soldier. It was unlikely that he would be recognised, and if the Northern Alliance had any interest in his family, it would be T's brother they would be interested in. If he was afraid of the commander in question, there was no reason why he could not be returned to Kabul.
- On the background evidence, the adjudicator found that there was relative security in and around Kabul. T had never been arrested or detained by the Northern Alliance, and the adjudicator doubted if anyone would recognise him. He was a relatively young man, and it would not be unduly harsh for him to relocate to Kabul, since he had lived there previously and was familiar with the city. He did not consider that T was at any real risk of persecution or ill-treatment if he was returned to Kabul.
T's appeal to the IAT
- T appealed to the IAT, who dismissed his appeal on 1st December 2004. They said:
"We have considered all the evidence presented to us as well as the oral submissions made on behalf of both the Appellant and Respondent. We have scrutinised the adjudicator's determination in the light of the evidence presented to him. We cannot identify an error of law on his part, material or otherwise. He considered all the evidence that was presented to him and made his findings. He found that, on the evidence before him, the Appellant was unlikely to be of adverse interest to the Northern Alliance on his return. His findings would have to be perverse to amount to an error of law. We are satisfied that the findings he made were not perverse but were properly open to him on the evidence before him and sustainable. It would not be appropriate for us to interfere with those findings."
The Issues in this Court in M and T
- Both M and T now challenge the respective decisions of the IAT, relying on more recent evidence about the extent to which members of the Hisb-e-Islami organisation are now targeted by the Northern Alliance.
RS (Hibi-e-Islami – expert evidence) Afghanistan
- Their arguments are largely based on the reported decision of the IAT in RS (Hibi-e-Islami – expert evidence) Afghanistan  UKIAT 00278, which was promulgated on 30th September 2004. The case was heard to "consider generally the evidence relating to risk on return for members or former members of the Hisb-e-Islami". On that appeal the IAT admitted expert evidence, and reviewed all the up-to-date material about the position of those suspected of involvement with Hisb-e-Islami. They concluded:
"In a country where the rule of law has broken down and there is no realistic prospect of an individual establishing his innocence through due process, where there are incentives to detain and ill-treat those suspected of involvement with Hisb-e-Islami in the hope of obtaining information which may lead to senior wanted men and enormous rewards, there is a real risk that not only those who are genuinely active for Hisb-e-Islami but those suspected of such involvement, past and present, face similar risks.
Because of the conclusion that we must remit, this will not be a country guidance case but it is reported for the information relating to Hisb-e-Islami and in particular the opinions of [Dr Martin Lau, the expert witness]."
- The main conclusion to be drawn from that decision was that an appellant would be at real risk of persecution and ill-treatment on return to Afghanistan if he had a past association with the Hisb-e-Islami, actual or perceived through his family, in the absence of clear evidence before the authorities in Afghanistan that he had disassociated himself with Hisb-e-Islami. There were substantial rewards for information leading to the arrest of suspected terrorists promised by the United States. There was ample motivation to "test" the knowledge of anyone who was believed to have been close to the Hisb-e-Islami; the passage of time did not help suspects.
- In making these findings the IAT relied heavily on the evidence of Dr Lau, who specialises in modern Afghan and Pakistani law at the School of Oriental and African Studies in London. His opinion, written in July 2004, was based on his up-to-date knowledge of Afghanistan, a country he had visited five times in the last two years, particularly in the 2002-3 period.
- Dr Lau said that the Hisb-e-Islami were without doubt a very dangerous terrorist organization who were determined to attack and destroy the Karzai government and to turn Afghanistan into a "pure" Islamic state. Its leader, who had declared a holy jihad against the occupying forces, was believed to be in hiding in Afghanistan, and despite concerted efforts he had not been apprehended. The group continued to carry out terrorist attacks.
- Because the US authorities had offered substantial financial rewards for information leading to the arrest of suspected terrorists, Dr Lau considered that there was ample motivation to "test" the knowledge of anyone believed to have been close to the Hisb-e-Islami. In his oral evidence he referred to the enormous rewards offered for senior members of Hisb-e-Islami, the Taliban and Al Qaeda, and because those currently associated with Hisb-e-Islami were likely to do everything possible to hide their involvement with the movement, known low-level former supporters were likely to be at risk.
- A Danish Fact-Finding Mission in March-April 2004 quoted one source as believing that it depended on a particular person's history whether as a former Hisb-e-Islami member he ran a risk of being persecuted in Afghanistan. Former Hisb-e-Islami officials had been admitted to the government, and various former supporters of Mr Hekmatyar had been appointed governors. The IAT commented that the sources contacted by the Danish mission provided not wholly consistent assessments of the risk facing people involved with Hisb-e-Islami, and their ultimate conclusions involved weaving into the picture painted by Dr Lau, whom they found to be an impressive witness, some of the evidence set out in the Danish report.
- Mr Manjit Gill QC, who appeared for M and T, made a sustained attempt to persuade us that by one route or another we should hold that the IAT should have taken account the material contained in the IAT's decision in RS. Although it was not formally treated as a country guidance decision, because the IAT had remitted the case to the adjudicator, it informed all future decisions taken within the Immigration Appellate Authority about the risks facing those formerly associated with the Hisb-e-Islami if they were returned to Afghanistan. He argued that the evidence disclosed in the RS decision largely referred to the situation in the period leading up to the adjudicators' decisions in early 2004, and that if the IAT were no longer given a free hand in admitting further country background evidence, at any rate until they had detected an error of law, we should nevertheless hold that the adjudicators had made errors of law because they had made mistakes of fact that gave rise to unfairness because they were not aware of the matters of which Dr Lau spoke.
- We would not be disposed to hold that the factual material contained in the RS decision should not have been admitted on Ladd v Marshall grounds if the IAT still possessed jurisdiction to hear appeals relating to errors of fact. Any analysis of the reasonable diligence required of an appellant's representatives must take into account the financial resources then available to them to commission expert evidence, and the more relaxed approach to the first rule in Ladd v Marshall in asylum cases shows an appreciation of these pressures.
- But in our judgment it would stretch the principles identified by Carnwath LJ in E and R impossibly far if we were to accede to the submission that the adjudicators had committed errors of law. He was concerned with a fact or evidence which must have been "established" in the sense that it was uncontentious and objectively verifiable, and we have set out the examples he gave in para 29 of our main judgment. The main thrust of Dr Lau's report was drawn from what a number of people had told him. Other people said different things to the Danish fact-finders, and if we were to accept Mr Gill's submission we would be reintroducing an appeal based on errors of fact through the backdoor, and this cannot have been Parliament's intention.
- We have noted that in M the IAT did not criticise the finding by the adjudicator that "on the evidence before him, the Appellant was unlikely to be of adverse interest to the Northern Alliance on his return". Their view, which we share, was that if the appellant(s) seek to rely on the additional evidence from RS they should make a fresh application to the Home Secretary.
D. T (Eritrea)
- T was born in Eritrea in 1966. She came to this country in June 1999, and her application for asylum was refused in October 2003. She appealed to an adjudicator who in a determination dated 9th February 2004 rejected the main planks of her claim on the facts. She did not believe that T was ever a member of the Eritrean Liberation Front ("ELF"), nor that she had been detained or abused. She did not consider that she would be at risk on her return to Eritrea. Even if she had been satisfied that T was a member of the ELF, she would have been a low level member, and could still be returned safely. Her parents, who are both Eritrean, live in Eritrea and there was no reason why the Eritrean Government should refuse to recognise T as Eritrean. She was not in a category of persons who would be of interest to the Eritrean Government.
- It had been argued that T's rights under Article 3 of the ECHR were engaged because she was a conscientious objector and would be liable to conscription in Eritrea. The adjudicator did not believe that she was a conscientious objector. She had made no mention of being afraid to return to Eritrea because she might face military service there until she made a statement to that effect in January 2004. She asserted that military service would be against her principles because she did not believe in fighting and killing. This was not a reason for granting asylum under the Geneva Convention, and Article 3 was only engaged if a prospective punishment reached a high threshold. Even if she were a conscientious objector, the maximum term of imprisonment would be three years, and this would not qualify under Article 3.
- Even if she were conscripted, there would be no guarantee she would be required to fight. There was no evidence that Eritrea was engaged in actual fighting, and they were certainly not fighting the Ethiopians. On that basis there could be no reason for T to object to being returned. There was nothing to indicate that someone in military service would be required to fight, and it was also clear that Eritrea's programme of national service included civic action programmes as well as military service.
- In her appeal to the adjudicator she made no mention of fear of return to Eritrea on the grounds that she was a draft evader, and this possibility was not argued before the adjudicator.
- In March 2004 T sought permission to appeal to the IAT out of time. She wished to argue that the adjudicator's assessment of risk in relation to her return to Eritrea was flawed and unsustainable in the light of facts revealed in a UNHCR position paper which was published in January 2004 but not brought to the adjudicator's attention. This paper was said to show that people forcibly returned to Eritrea were at risk of serious harm, and that the IAT should consider the risks on return in the light of this evidence. The case of E and R was relied on.
- In July 2004 the IAT held that there were no special circumstances to justify an appeal out of time. The IAT had considered the UNHCR paper in MA (Female draft evader) Eritrea CG  UKIAT 00098. It was not properly arguable that T would be at real risk or that the adjudicator's assessment was flawed and unsustainable in the light of the UNHCR paper.
- It is unnecessary for present purposes to say anything about the subsequent chain of events which led to the High Court quashing the IAT's decision by consent or about the later occasion when the IAT considered the case in the absence of T or her legal representative, due to a series of administrative mishaps. The IAT gave a reasoned decision refusing T's appeal, and T's efforts to challenge the procedural issues that arose have not been permitted to come to this court on a full appeal.
- The IAT referred to T's Grounds of Appeal, and the agreed reasons why the matter had been remitted to them. They said that T had to show an error of law. There was no evidence that she was a draft evader, and it was not argued before the adjudicator that she was a draft evader in the sense that she had been served with papers conscripting her into the Eritrean army and had refused to go. The decision in MA had been promulgated on 4th May 2004. There was no error of law arising from the fact that the adjudicator had not considered a UNHCR report which was not before him. It could have been placed before him, and the first criterion in Ladd v Marshall was not satisfied.
- If there was now new evidence of risk, in that she might face the possibility of conscription and might be detained or ill-treated if she declined to serve, this was a matter on which she should make representations afresh to the Home Secretary.
- On the appeal to this court, Mr Mukherjee, who appeared for T, has invited us to consider carefully the various reports that have been compiled in recent years about the treatment of people returned to Eritrea who were perceived to have been draft evaders.
- At the time of the hearing before the adjudicator on 30th January 2004, a Home Office CIPU report referred to the requirement that all citizens of Eritrea, male or female, should participate in the National Service Programme, which included military training. There was a report that the army had resorted to various forms of extreme physical punishment to force objectors, including some Jehovah's witnesses, to undertake military service.
- The US State Department's 2003 report noted that the police had subjected deserters and draft evaders to various military disciplinary actions. These included prolonged sun exposure in temperatures of up to 113 degrees Fahrenheit, or tying people's hands and feet for extended periods of time. It also referred to reports that women drafted into the national service were subjected to sexual harassment and abuse.
- The adjudicator did not refer to this evidence because it was not suggested that T had been served with call-up papers before she left Eritrea, and he rejected her evidence that she had a conscientious objection to military service. It was not argued on her behalf that she would be perceived to be a draft evader.
- On 20th January 2004, ten days before the hearing before the adjudicator, a UNHCR position paper was published. This referred to the fate of 233 people who had been deported from Malta to Eritrea in the autumn of 2002. They were all arrested and taken to detention on arrival. It appeared that those with children and those over the age of 40 may have soon been released, but the remainder continued to be held incommunicado. UNHCR referred to reports that these detainees had been deprived of their belongings, subjected to forced labour, interrogated and tortured, and they could not exclude the possibility that future detainees would face a similar risk.
- In MA (Female draft evader) Eritrea CG  UKIAT 00098 the IAT considered that the Maltese evidence was the most troubling they had to consider. The facts of that case were rather different from those in T. MA's story that she had left Eritrea when she received call-up papers at the age of 16 was not believed by the adjudicator, who decided to treat MA, who was by then over 18, as if she were to be seen either as a draft evader or as someone required to complete her military service on her return. Her conclusion, namely that a maximum sentence of three years' imprisonment for failure to complete military service did not evoke ECHR considerations, was similar to that of the adjudicator in T.
- MA's appeal was heard by the IAT, however, on 11th April 2004 before the decision of this court in CA had alerted them to the need to be astute to detect an error of law before being willing to consider new evidence. The UNHCR report cast a new light on the position of those who might be perceived to be draft evaders when returned from abroad, and the IAT concluded that it appeared to them from the Maltese evidence that there was a real risk that MA would be subjected to the same treatment as those deported from Malta and that her rights under Article 3 of the ECHR would be breached.
- Over the next 12 months there were a number of other IAT decisions which examined the position of Eritreans of draft age. In 2004 there were SE (CG 00295) and GY (reported, 00327) and in 2005 AT (00043), NM (00073) and finally IN (Draft evaders – evidence of risk) Eritrea CG  UKIAT 00106. IN contains authoritative up-to-date country guidance, and in para 44 the IAT said that they were satisfied that there was a real risk that those who had sought to avoid military service or were perceived to have done so were at risk of treatment amounting to persecution which would fall within Article 3 of the ECHR. They summarised their conclusions in seven numbered sub-paragraphs.
- If the adjudicator had committed an error of law, then the IAT would have been bound to consider the up-to-date country guidance as at January-February 2005 when they considered and then promulgated their determination. So far as the UNHCR report was concerned, it had been issued only ten days before the hearing before the adjudicator, and if the IAT had possessed jurisdiction to consider errors of fact we consider that the approach applied to the first of the Ladd v Marshall guidelines in asylum cases would have warranted the admission of this evidence on an appeal. We do not consider that with the limited resources generally available to asylum-seekers' representatives, reasonable diligence requires an up-to-date grasp of country background material like the UNHCR report that is published just before a hearing.
- We do not consider, however, that the adjudicator's ignorance of the contents of the UNHCR report (or even the part of it that related to the Maltese deportees) could be properly categorised as a mistake of fact resulting in unfairness. Evidence of the risks faced by returning Eritrean asylum-seekers of an age at which they were liable for conscription could not be fairly categorised as evidence of matters that were uncontentious and objectively verifiable. In our judgment the IAT were correct in para 9 of their determination:
"We are of the opinion that the adjudicator has not made any error in law. He has dealt with the evidence and argument submitted to him. It now appears that there may be new evidence of a risk on different grounds, namely the possibility that this Appellant on return might face the possibility of conscription, given that she is under 40 years of age and that she might be detained and ill-treated in Eritrea on return. Since the Appellant has failed to establish that the adjudicator made any error of law, however, the appropriate course is for the Appellant, through her representatives, to make further representations or a new claim on the basis of this new material to the Secretary of State for the Home Department."
We agree, and we would therefore dismiss this appeal.