Muchai v Secretary Of State For the Home Department

In an asylum appeal, an adjudicator must make sufficiently clear findings on crucial allegations, including the nature and extent of alleged past ill-treatment. Past torture or other grave ill-treatment may be highly relevant to the assessment of future risk. A determination is defective where its findings leave it uncertain what events are accepted and whether the future-risk conclusion would have been the same on the accepted facts. The assessment must address whether there is more than a fanciful risk of Convention persecution, rather than simply whether deterioration is likely. In a borderline judicial-review case involving fundamental rights, the decision-maker must give clear reasons and the court must apply anxious scrutiny.

The appellant, a Kenyan citizen of Kikuyu ethnicity, claimed asylum after alleging political activity for Safina, arrest, torture and later ill-treatment in Kenya. The Special Adjudicator rejected him as generally untruthful, but stated that he might have been abused by the police and that, even if he had previously been persecuted for a Convention reason, he was not at risk on return.

The Immigration Appeal Tribunal refused leave to appeal. Mr Justice Sachs dismissed the appellant’s application for judicial review. The Court of Appeal considered whether the adjudicator had made sufficiently clear findings about the alleged torture and had properly assessed future Convention risk.

1. Appeal allowed. The refusal by the Immigration Appeal Tribunal to grant leave was quashed, and the matter was returned to the tribunal. Costs were awarded to the appellant, with detailed public-funded costs assessment. Leave to appeal to the House of Lords was refused.
2. An adjudicator must indicate, at least broadly, what evidence is accepted and rejected on issues crucial to the case. Allegations of previous grave ill-treatment, including torture, are particularly important because they may be highly relevant to future risk on return: Demirkaya [1999] INLR 441.
3. The Special Adjudicator’s statements that there was some truth in the account and that the appellant might have been abused, but not for the reasons or in the circumstances claimed, did not disclose whether torture had been ruled out or whether some of the major incidents were accepted. The adjudicator therefore failed to make clear findings on the core events. This was distinct from Dauda (No 2) [1995] Imm AR 600, where the challenge concerned the evidential basis for a credibility finding and the issue was treated as one of true irrationality. The approach was closer to Amin [1992] Imm AR 367, where failure to make clear credibility findings was an error of law.
4. The uncertainty was material to the future-risk assessment. The statement that, even if the appellant had been persecuted for a Convention reason, he was not at risk did not identify the nature or degree of persecution assumed. Nor was it clear how the adjudicator had evaluated the expert evidence concerning country conditions and risk.
5. The relevant question was whether the appellant had a well-founded fear of Convention persecution on return. The reference to whether deterioration was likely was unhelpful because the assessment required consideration of whether there was more than a fanciful risk of persecution. Given the borderline nature of the case and the fundamental rights at stake, the determination required anxious scrutiny and clear reasons, following the approach commended by Lord Bridge in the Musisi case.

1. Court of Appeal (Civil Division) — appeal from the decision of Mr Justice Sachs; appeal allowed, the refusal of leave quashed and the matter returned to the tribunal.
2. High Court, Queen’s Bench Division, Administrative Court — Mr Justice Sachs dismissed the application for judicial review of the Immigration Appeal Tribunal’s refusal of leave to appeal.
3. Immigration Appeal Tribunal — refused leave to appeal against the Special Adjudicator’s dismissal of the asylum appeal.