Mafuta, R (on the application of) v Immigration Appeal Tribunal

An asylum decision-maker must consider relevant political activities undertaken after arrival in the United Kingdom, even where those activities may have been undertaken in bad faith. Bad faith is relevant to whether the activities create a well-founded fear of persecution; it does not by itself remove Convention protection.

Where a material legal error may have affected the outcome, a reviewing court should not treat it as immaterial by inferring findings which the fact-finding tribunal did not expressly make. The matter should return to the statutory appellate process for proper reconsideration.

The appellant, a national of the Democratic Republic of Congo, claimed asylum based on political activity in the DRC and alleged political activity in the United Kingdom. The Secretary of State refused the claim. A special adjudicator dismissed the appeal, finding the appellant unreliable and treating his post-arrival membership of the UDPS as a bad-faith attempt to strengthen his claim.

The Immigration Appeal Tribunal refused permission to appeal. The Administrative Court granted permission for judicial review but dismissed the application, holding that the special adjudicator would inevitably have reached the same conclusion. The issue before the Court of Appeal was whether the special adjudicator had failed to consider the post-arrival activities under the legal approach subsequently established in Danian [1999] INLR 533, and whether that error could properly be treated as immaterial.

1. Appeal allowed. The refusal of permission to appeal by the Immigration Appeal Tribunal was quashed, and the matter was returned to that Tribunal.
2. The special adjudicator had considered the appellant's evidence about events and political activity in the DRC. However, read as a whole, the determination did not make any finding about what had occurred in the United Kingdom or about the risk arising from those activities. The statement that the appellant had not engaged in real political activity was made in the context of findings concerning events in the DRC and could not properly be extended by inference.
3. The approach in Danian [1999] INLR 533 required a person with a well-founded fear of persecution on Convention grounds to receive Convention protection even where relevant post-arrival activities had been undertaken in bad faith. Such activities nevertheless required rigorous scrutiny to determine whether they actually created a well-founded fear of persecution.
4. The special adjudicator had treated the appellant's post-arrival UDPS activities as unnecessary to consider because they were undertaken in bad faith. That was an error of law. At the very least, it was possible that the error had affected the outcome. The Administrative Court therefore erred in concluding that the error was immaterial by assuming that the special adjudicator would inevitably have dismissed the claim.
5. Permission to appeal to the Immigration Appeal Tribunal was discretionary under the applicable procedural rules. If permission were granted, the appeal would proceed by way of rehearing, with power to admit further evidence and, if necessary, call evidence of its own initiative.

• Court of Appeal (Civil Division): Appeal allowed. The refusal of permission to appeal was quashed and the matter returned to the Immigration Appeal Tribunal.
• Administrative Court: Judicial review application dismissed on 16 October 2000.
• Immigration Appeal Tribunal: Permission to appeal refused on 15 November 1999.
• Special adjudicator: Asylum appeal dismissed on 13 October 1999.