HL (Uganda) v Secretary of State for the Home Department

In this matter I gave permission to appeal following an oral hearing at which HL represented herself. The reasons that I gave permission are apparent from the transcript of my judgment of 26 July 2006 and I do not repeat them. Essentially, I had concerns about the immigration judge’s credibility findings.

In due course the appellant obtained the services of Miss Amanda Weston to act for her. She lodged a written skeleton argument. It concludes with the submission that the just outcome of the appeal in this case would be for the matter to be remitted to the Asylum and Immigration Tribunal for reconsideration. That was, indeed, what the appellant was asking for in her notice of appeal.

The Secretary of State agreed that the immigration judge’s reasoning on credibility was erroneous as a matter of law and that the case should be remitted. A draft order to this effect was prepared, accompanied, as it is required to be, by a statement of reasons. However, HL, following a discussion with her solicitor, was not prepared to agree to the case going back for reconsideration because, she says, she was told by him that she had a better opportunity of obtaining justice in this court.

It may be that there has been a measure of misunderstanding between her and her solicitor as to the powers of this court. We do not rehear cases. She tells us that her solicitor advised her that it was a lottery what the outcome would be if the matter was reconsidered by a tribunal. HL has some grounds for concern in that her case has now been heard at a lower level on two occasions and yet it is to be sent back to an immigration judge again.

We have endeavoured to explain to HL that the court here can do nothing more for her than send the case back again to an immigration judge. Our jurisdiction is of a supervisory nature and where we find that an error of law has occurred in the decision making process of the lower court the right remedy is to send the case back to the lower tribunal to make the appropriate findings of fact that it failed to make on the earlier occasion. That is what we propose to do in this case, having explained to HL that it is the best that we can do for her.

There is, however, one further matter that may be of some comfort to her and it is this. Bearing in mind the unfortunate history of this case and HL’s concerns about having an appropriate hearing we recommend that if it can be arranged -- we do not go so far as giving a direction because it is not clear that we have any power to do so -- that this matter is heard on the next occasion by a senior immigration judge. Accordingly, the appeal is allowed and the case is remitted on the basis put forward in the document put to the court by the Secretary of State.

I agree. I endorse what my Lord, Lord Justice Scott Baker, has suggested as to the proper course when the matter returns to the AIT. It would, indeed, evidence a failure of the system if HL were to be back in this court, again, on a further application based upon an error of law in the adjudication process. So we will make an order remitting this matter to the AIT for reconsideration; with an indication that, if possible, that reconsideration should be assigned to a senior immigration judge.