Secretary of State for the Home Department v Haile

J U D G M E N T

1. LORD JUSTICE LAWS: This is renewed application for permission to appeal against the decision of the Immigration Appeal Tribunal ("IAT") made on 15 October 2003 when they allowed the Secretary of State's appeal against the determination of the adjudicator of 1 November 2002. The adjudicator had allowed the applicant's appeal against the Secretary of State's decision to refuse him asylum. Permission to appeal was refused by Keene LJ on consideration of the papers on 18 May 2004.

2. The applicant is a citizen of Eritrea. His case is summarised by the IAT as follows:

"2. The basis on which the claimant applied for asylum is that prior to his departure from Eritrea, he lived with his parents in Asmara. His father was a member of the ELF (Eritrea Liberation Front). The claimant assisted his father by taking publicity material which his father had prepared at home and passing it to other members of the ELF. He also went out with other members of the ELF to leave leaflets in public places at night, and distributed copies of the same leaflets to his fellow pupils at school.

3. He states that in February 2000, his family home was raided by members of the security forces. His father was shot dead. The photocopying equipment which his father had at home was destroyed. The claimant, his mother and his siblings were all detained. He was held for about two weeks, and was beaten during questioning.

4. However, one night he was put in a lorry to be taken to another location with a number of other detainees. During the journey, they heard gunfire, and fighting broke out. The detainees jumped out of the lorry and ran away. The claimant himself was knocked down. When he disclosed his involvement with the ELF to his rescuers, they assisted him to escape to Sudan. One of his father's friends and trading partners was there, and he made arrangements for the claimant to be brought to London."

3. The IAT resolved a point about the applicant's age in the applicant's favour and proceeded to address the remaining issue on the appeal as to whether the adjudicator had erred in concluding that the applicant would be at risk if he were returned to Eritrea given, as was described by the IAT, his low level involvement with the ELF. There was no question as to the applicant's credibility, and there is no doubt that the resolution of this issue heavily depended on the assessment to be made of the in-country material. Mr Ferguson says that it did not exclusively depend on that material.

4. The skeleton argument for the applicant summarises the conclusions of the adjudicator. They included matters concerning the individual circumstances of the applicant. For the purposes of this judgment, it is not necessary to go into the details. Mr Ferguson has drawn attention to the adjudicator's conclusions concerning the activities of family members of the applicant, his continuing to support the ELF after leaving Eritrea and the means of his escape. I will return to the significance of those matters.

5. The IAT reported the arguments of counsel for the applicant, respondent before them, and those of the Home Office Presenting Officer. They concluded that they preferred the in-country material relied on by the Secretary of State. They said at paragraph 31:

"We prefer Mr McGirr's objective evidence, which is directly applicable to the circumstances which the claimant would face on return to Eritrea, to the more general evidence cited by Mr Waithe. In the light of the specific evidence contained in the Country Information and Policy Unit Assessment, we are satisfied that, on the basis of his own account, there is no real likelihood that the claimant would be of any adverse interest to the Eritrean Authorities if he were now to return. His past involvement, such as it was, with the ELF was very low-level indeed. The objective evidence before us indicates that it was not such as to be likely to expose the claimant to any real risk on return."

6. A major issue before the tribunal had been whether the objective evidence, thus ultimately relied on by the IAT, was or was not to be preferred to the in-country material put before the IAT on behalf of the applicant. Mr Ferguson accepts, plainly rightly, that the IAT were entitled to prefer the material advanced for the Home Office. But, he said, if one looks at that material, and he has referred to the quoted subparagraph set out at paragraph 30 of the IAT's determination, it is apparent that its impact may be significantly independent of specific personal factors relating to this asylum claim; in this case the activities of the applicant's family members, his continuing support for the ELF after leaving Eritrea and the means of his escape.

7. I am just persuaded that it is arguable that the tribunal, if they were going to overturn the adjudicator's fully reasoned decision (as they were) and arrive at a conclusion in effect that they were compelled to adopt a different approach (see Subesh [2004] EWCA Civ 56), then they should have explained what they made of these personal factors which undoubtedly played a part in the adjudicator's determination.

8. With some misgivings, and on that narrow basis, I grant permission to appeal.

Order: Application for permission to appeal allowed. To be heard before a 3-judge court one of whom may be a High Court Judge.