Hayat v Secretary Of State For The Home Department

An asylum claimant must establish a well-founded fear of persecution to the applicable modest standard of proof of risk. An adjudicator may take account of a late application, non-attendance at interviews or hearings, reliance on an unsigned and untested statement, and documents susceptible to forgery. Strongly expressed disbelief does not create a material error where the evidence, viewed as a whole, did not meet the required threshold. An adjournment may be refused where medical evidence is nonspecific and the claimant’s repeated non-attendance indicates that further delay would not secure attendance.

Mr Hayat entered the United Kingdom as a visitor and later claimed asylum, alleging persecution by rival factions of his political party and mistreatment by the police. The Home Office refused the claim. An adjudicator rejected his appeal, disbelieving his account and finding that supporting documents were not genuine. The Immigration Appeal Tribunal refused permission to appeal. Mr Hayat then applied to the Court of Appeal for permission to appeal against that refusal. He also submitted a medical certificate and implicitly sought an adjournment. The central issues were whether the adjudicator had made a material error and whether the application should be adjourned to allow Mr Hayat to attend.

Lord Justice Sedley dismissed the application. The Immigration Appeal Tribunal was entitled to refuse permission because there was no material error in the adjudicator’s decision and the proposed appeal had no prospect of success.

1. The adjudicator correctly directed himself that the applicant only had to satisfy the modest standard of proof of risk. He was nevertheless entitled to conclude that the evidence did not establish a well-founded fear of persecution for a political reason.
2. Relevant considerations included the applicant’s entry as a visitor, the delay before claiming asylum, his failure to attend the asylum interview and the hearing, his reliance on an unsigned and undated statement which could not be tested by cross-examination, and documents of a kind capable of being forged.
3. The adjudicator’s expression of disbelief may have gone too far, particularly in the absence of contradictory testimony. That did not amount to a material error because the adjudicator was independently entitled to find that the required evidential threshold had not been reached.
4. Although courts will ordinarily be indulgent towards a person unable to attend and will allow a reasonable opportunity to attend later, an adjournment was unjustified here. The medical certificate recorded only a nonspecific illness, and the applicant’s consistent failure to attend made it unlikely that an adjournment would secure his attendance. It would instead provide an opportunity for a further adjournment application.

Permission to appeal was refused and the application was dismissed.

• Court of Appeal (Civil Division): refused permission to appeal against the Immigration Appeal Tribunal’s refusal of permission and dismissed the application.
• Immigration Appeal Tribunal: refused permission to appeal against the adjudicator’s adverse decision.
• Immigration adjudicator: dismissed the appeal against the Home Office refusal of asylum.
• Home Office: refused the asylum claim.