Kulek v Secretary of State for Home Department

For the purposes of an immigration appeal, a statutory right to appeal against an adjudicator’s determination concerns the result of the appeal, not every individual issue or finding made in reaching that result. A party who seeks to overturn findings favourable to the other party does not require a separate cross-appeal or respondent’s notice where the statutory scheme contains no such requirement. However, the Tribunal should not treat this as permitting unrestricted re-litigation of credibility findings based on oral evidence. Relevant evidence and an earlier determination concerning another family member must be considered as part of the material as a whole, without allowing the earlier decision to determine credibility.

The appellant, a Turkish Kurd, claimed asylum on the basis that he was at risk of persecution and torture because of alleged involvement with DHKP/C. An adjudicator rejected his credibility and documentary evidence but allowed the appeal solely because an earlier Immigration Appeal Tribunal decision had allowed his brother’s asylum appeal.

The Secretary of State appealed. The Tribunal held that the adjudicator had adopted an impermissible reasoning process and allowed the appeal. It also stated that the adjudicator’s credibility findings were not before it because the appellant had not brought a separate appeal. The central issues were the scope of the Tribunal’s jurisdiction on a respondent’s appeal and the significance of the documentary evidence and the earlier decision concerning the appellant’s brother.

1. Appeal allowed and remitted. The Tribunal’s decision was set aside and the case was remitted for reconsideration. The respondent was ordered to pay the appellant’s assessed costs.
2. Section 20(1) of the Immigration Act 1971, preserved in substance by paragraph 22(1) of Schedule 4 to the Immigration and Asylum Act 1999, permits any party dissatisfied with the adjudicator’s determination to appeal. “Determination” means the result of the appeal, rather than each issue or reason contributing to it. The contrary approach in Iqbal was incorrect; Bari was correctly decided.
3. The Tribunal was wrong to treat the appellant’s credibility findings as outside the appeal merely because he had not brought a separate appeal. The appeal concerned whether the facts established a well-founded fear of persecution on return.
4. The earlier determination concerning the appellant’s brother was relevant, but its significance was limited. It had to be considered with all the other evidence and could not replace the adjudicator’s independent assessment of credibility. The Tribunal’s approach was unsound because the adjudicator had wrongly discounted documentary evidence which could have affected his assessment of the appellant’s evidence as a whole.
5. Although the Court accepted that a Tribunal would not normally entertain a challenge to credibility findings based on oral evidence, it observed that the rules should desirably provide for a respondent’s notice where a respondent seeks to uphold a determination on alternative grounds.

• Immigration Appeal Tribunal: Allowed the Secretary of State’s appeal on 19 March 2002.
• Court of Appeal (Civil Division): Allowed the appellant’s appeal and remitted the case to the Tribunal.