Secretary Of State For Home Department v Kawesa

An appellate immigration tribunal may interfere with a special adjudicator’s factual and credibility findings where it hears evidence itself and concludes that the findings should not have been made. The tribunal remains properly reluctant to disturb primary findings based on witness credibility, but that reluctance does not prevent intervention where the findings are unsustainable, including where they are against the weight of the evidence. The tribunal must assess the totality of the credible evidence and decide whether there is a reasonable likelihood or real risk of persecution for a Convention reason. Where the tribunal has given the applicant a fair opportunity to present the case and has heard the relevant evidence, remittal is not necessarily required.

Mr Patrick Kawesa, a Ugandan national, claimed asylum after alleging detention without charge, escape from custody and a fear of persecution based on ethnicity, imputed political opinion and possible punishment for desertion.

A special adjudicator accepted his account and allowed the asylum appeal. The Immigration Appeal Tribunal questioned his evidence, found material credibility discrepancies, set the determination aside and concluded that a Convention-based fear of persecution had not been established. The renewed application for permission to appeal concerned the Tribunal’s power to reconsider facts, the applicable standard of proof, the need for remittal and the evidence said to support the claim.

1. Application dismissed. Time was extended, but permission to appeal was refused. The appeal was dismissed with costs, subject to legal aid assessment.
2. The Immigration Appeal Tribunal was entitled to hear evidence and to make its own findings of fact. It could therefore reach findings which displaced those made by the special adjudicator. Its appellate role required reluctance to interfere with primary credibility findings, particularly where based on a witness seen by the special adjudicator, but intervention was permissible in rare cases where the findings were unsustainable or against the weight of the evidence.
3. The Tribunal’s reference to the Secretary of State’s burden being satisfied on the balance of probabilities concerned the burden on the appeal. It did not establish that the Tribunal had applied the wrong approach to fact-finding. The correct substantive question was whether, on the totality of the credible evidence, there was a reasonable likelihood or real risk of persecution for a Convention reason.
4. The Tribunal had questioned Mr Kawesa and had given him an opportunity to explain the matters causing concern. It was therefore not necessary to remit the case merely so that the special adjudicator could reconsider the evidence.
5. The evidence did not establish a reasonable likelihood of Convention-based persecution. The Tribunal was entitled to reject the account concerning detention, the passport, the aliases, the height discrepancy and the escape. The asserted risk of punishment for desertion was also unestablished and unsupported by objective evidence. The material relied on concerning the Baganda and the Uganda Freedom Movement did not justify the claimed conclusion.

• Court of Appeal (Civil Division): The renewed application for permission to appeal was dismissed. The Court upheld the Immigration Appeal Tribunal’s approach and refused permission.
• Immigration Appeal Tribunal: The Tribunal set aside the special adjudicator’s determination after reconsidering the evidence and credibility findings.
• Special adjudicator: The asylum appeal was allowed after the applicant’s account was substantially accepted.