Secretary of State For the Home Department v Maheshwaran

Procedural fairness in an immigration appeal depends on all the circumstances. An adjudicator is not invariably bound to accept an unchallenged factual assertion or to raise every potential credibility concern with the claimant.

A party must have a proper opportunity to address a point which may be decided against them. Fairness will usually require warning before a tribunal rejects an express concession. It may also require an apparent inconsistency to be put to a witness, but that is not the usual course, particularly where the party is represented.

The weight attached to discrepancies in an asylum claimant’s evidence is primarily for the adjudicator. Judicial review does not permit the court to substitute its own assessment merely because another decision-maker might have evaluated those discrepancies differently.

The respondent applied for asylum. The Secretary of State refused his claim, an adjudicator dismissed his appeal, and the Immigration Appeal Tribunal refused permission to appeal. Turner J allowed the respondent’s application for judicial review and quashed the determinations of both the adjudicator and the Tribunal.

The judge concluded that the adjudicator had acted unfairly when dealing with evidence about the respondent’s sister and that the adjudicator’s findings were confused or contradictory. The Secretary of State appealed.

The central questions were whether an adjudicator must accept an unchallenged factual assertion unless doubts are put to the claimant, and whether the adjudicator’s credibility findings disclosed unfairness, incoherence or another error of law.

1. Appeal allowed. Schiemann LJ delivered the judgment of the court. The broad submission that an adjudicator must accept an unchallenged factual assertion unless doubts about it have been raised with the claimant was rejected. Fairness is conditioned by the circumstances of the individual case and cannot be reduced to a rigid rule.

2. A failure to put a point which is later decided against a party may be grossly unfair because the party must have a proper opportunity to answer it. If one party expressly concedes a point, it will usually be unfair to decide against the other party by rejecting that concession without warning. Reopening may exceptionally be required where a significant point emerges after the hearing, but such cases will be rare.

3. Where credibility depends on several inconsistent statements already before the decision-maker, the witness has an evident forensic problem. A tribunal may put an inconsistency to the witness, and fairness may sometimes require that course. Ordinarily, however, particularly where the party is represented, the tribunal may remain silent and assess the case as it unfolds.

4. Turner J had wrongly treated the adjudicator’s comments about the respondent’s sister as part of an adverse credibility finding. Read as a whole, the determination made no firm finding about the sister’s involvement with the LTTE and assessed future risk on the assumption that such a connection might exist. The adverse credibility findings instead rested on other discrepancies and inconsistencies.

5. The adjudicator’s determination was neither materially confused nor contradictory. He accepted that the respondent had been arrested twice while rejecting parts of the account concerning detention, ill-treatment and the circumstances of departure. Any apparent reference to only one occasion was an immaterial slip.

6. The weight attached to discrepancies was for the adjudicator. Although another decision-maker might have given them less weight, the reviewing court had to resist substituting its own view of the facts. Neither the adjudicator’s determination nor the Tribunal’s refusal of permission disclosed an error of law.

7. The proper formal course in such a judicial review is normally to quash the Tribunal’s decision and remit the matter to it, leaving the adjudicator’s determination untouched unless all parties agree otherwise. The appeal was allowed, with the respondent ordered to pay the Secretary of State’s costs subject to the stated enforcement and legal-funding provisions.

1. Court of Appeal (Civil Division): The Secretary of State’s appeal was allowed. The court held that neither the adjudicator’s determination nor the Immigration Appeal Tribunal’s refusal of permission disclosed an error of law. [2002] EWCA Civ 173

2. Administrative Court: Turner J allowed the respondent’s application for judicial review and purported to quash the determinations of both the adjudicator and the Immigration Appeal Tribunal. No citation is stated.

3. Immigration Appeal Tribunal: The Tribunal refused permission to appeal from the adjudicator. No citation is stated.

4. Adjudicator: The respondent’s appeal against the refusal of asylum was dismissed. No citation is stated.