The Court of Appeal (CoA) deplored the time taken to resolve this case but agreed that the whole case should have been remitted to the lower tribunals for a complete rehearing.
Background:
AA was born in Italy in 1999 and lived there until he was seven. He then moved with his family to live in Morocco. His father died in 2012 and his mother, brother and sister remain in Morocco. AA retains Moroccan nationality.
In 2016, AA clandestinely arrived in the UK due to his fear of persecution following the backlash from a Facebook post that was deemed to be critical of, or insulting to the Moroccan monarchy and Government. In August 2016 AA was placed in the care of Merton London Borough Council under Section 20 of the Children Act 1989. He claimed asylum that same month.
In January 2019 the Secretary of State for the Home Department (SSHD) treated the asylum claim as having been withdrawn. In May 2019 that withdrawal was cancelled and the claim reopened. An asylum interview was carried out in July 2019 and the SSHD refused the claim on 23 August 2019 with an in-country Right of Appeal.
On 1 June 2020, Dr. Camilla Day stated, after her three-and-a-half-hour interview with AA that, in her opinion, AA fulfilled the criteria for first-episode psychosis. Her differential diagnoses were paranoid schizophrenia and mental and behavioural disorders secondary to the use of LSD. However, she added that further assessment was needed before a diagnosis could be made.
AA’s appeal was heard by the First-tier Tribunal (FTT) on 2 November 2020 and was dismissed on 20 November 2020. On 25 January 2021, the FTT granted permission to appeal to the Upper Tribunal (UT) which allowed the appeal on the 10th of May 2021 and the case was remitted to the FTT for redetermination by a different judge. On the 21st of October 2021, the asylum/humanitarian protection appeal was dismissed. He was granted permission to appeal on the 23rd of November 2022 and the case was remitted to the FTT to be redetermined. AA then appealed to the CoA.
Decision:
The CoA ruled that the UT was correct to remit the entire case of AA (Morocco) back to the FTT for a complete rehearing. The Court noted that “One of the problems with the decision of the FTT is that it failed to deal with each claim separately in a logical sequence, setting out for each matter the relevant legal tests and the tribunals' findings of fact and then applying those tests to those findings. The fact that some of the evidence was relevant to more than one of AA's claims did not alter the need for the FTT to ensure that the relevant legal tests for each claim were applied separately.” The FTT should have analysed each claim separately in relation to asylum, humanitarian protection, etc.
Implications:
This decision underscores the role of procedural fairness in complex immigration appeals. It made clear that tribunals and courts must assess all grounds of appeal separately and in a logical sequence or any judgement may be subject to an appeal.
This judgement also confirms the relevant principles in AM (Zimbabwe) regarding the approach to Article 3 of the European Convention on Human Rights (ECHR).
