MH (Sudan) v Secretary of State for the Home Department

LORD JUSTICE SEDLEY: This renewed application for permission to appeal, following refusal by Carnwath LJ on the papers, is made by Miss Louise Hooper on behalf of the applicant, Mr H.

I am grateful to Miss Hooper for having, albeit very belatedly, put into an Advocate’s Statement a much clearer account of the proposed case than was discernible from the papers prepared by those instructing her. The issues it is now clear, fall into two discrete classes, the second dependent entirely on the outcome of the first.

The first issue or group of issues concerns the decision of the AIT (recorded upon a pink form which, because of the early date at which it was composed, has not been produced and should now be produced to the court) finding an error of law in the decision of the adjudicator, which had been favourable to Mr H, and sending the case on to a second stage appeal. The question that arises now, as identified by Miss Hooper, is whether there was in the adjudicator’s decision the error of law asserted in its Notice of Appeal by the Home Office and, to the extent that it was open to the AIT to find some other error of law, whether there was any such other error of law either.

If there was not, then it appears that the adjudicator’s decision must stand. If there was such an error of law, then the question which Miss Hooper raises in relation to the consequent second stage consideration is whether it correctly applied the law in relation to internal relocation, this being one of the many cases of Darfurians whom it is proposed to return not to Darfur, which is deeply dangerous, but to Khartoum.

Miss Hooper has wisely jettisoned from her application in relation the first stage decision the material in the previously prepared papers, seeking to place reliance on things said or allegedly said by the first stage AIT about how it proposed to dispose of the case but which, it is said, are contradictory to the eventual disposal recorded on the pink form.

In my view, the issue which is left and which I have described in relation to the first stage appeal is one which merits the grant of permission to appeal. There is a real question whether the single ground of appeal relied on by the Home Office was made out at all. That ground can be found at page 47 of the present bundle and is confined to the question whether the final sentence of the adjudicator’s paragraph 34 was more than speculative. There is also a question, even if the AIT was entitled to go beyond that ground and find another error of law, whether there was any such further error.

I do not propose, however, either to give or to refuse permission to appeal at this stage on the second limb of the case for these reasons. If Miss Hooper is right in her attack on the first stage decision, it seems to me at present that she will succeed without more. If she is wrong, then the question arises whether the law carefully applied on the face of it by the second stage tribunal on internal relocation is correct. This is a matter which is at present the subject of applications to this court for permission to appeal against the major Country Guidance decision now known as HMGO[2006] UKAIT 00062, handed down recently by the AIT in the wake of the House of Lords decision remitting some of the cases decided under the name of Januzi earlier in the year.

By the time the appeal for which I am giving permission comes before the court, and if it fails, the situation will be very much clearer in relation to the viability of any appeal on the internal relocation issue. What I propose to do, in these circumstances, is to adjourn the application for permission to appeal in relation to the second stage decision to the court which hears the appeal against the first stage decision. If that appeal succeeds, as I have said, this question will fall. If the appeal fails, the full court will be in a much better position than I am to decide whether the appeal on the second stage decision is viable. I will nevertheless give liberty to apply in case there is a slip between cup and lip, as there often is in these matters.