S & Ors v Secretary of State for the Home Department

An authoritative country-conditions determination may provide factual guidance in asylum appeals and promote consistency. It cannot displace the obligation to examine each claimant’s individual circumstances or relevant evidence of changed conditions.

Because such guidance may influence many later cases, the tribunal must give reasons with particular rigour. It must address every issue capable of having a real bearing on the result and explain its assessment of substantial evidence relating to those issues. It need not discuss trivial, repetitive or immaterial evidence.

The assessment of refugee status remains based on all the evidence at the date of the hearing. Earlier refugee status may affect the evidential course of the case, but it does not create a rigid burden-of-proof rule.

Eight Croatian Serbs, together with one ethnic Hungarian associated with the Serbian side, appealed against determinations of the Immigration Appeal Tribunal. Their asylum claims concerned ethnically motivated violence, inadequate state protection, discrimination, housing difficulties and, in some cases, risks arising from military service or alleged war crimes.

The Tribunal had heard the cases together as test cases and intended its assessment of conditions in Croatia to guide later appeals unless circumstances materially deteriorated. It found that none of the appellants faced a well-founded fear of persecution.

The principal issue was whether the Tribunal had fulfilled its duty to give reasons when it failed expressly to address two recent reports from the Special Rapporteur of the United Nations Commission on Human Rights. A separate issue in SN’s appeal concerned an inconsistency between her individual determination and the lead determination about continuing employment discrimination.

1. The appeals were allowed and remitted. The court held that the Tribunal’s lead determination could not stand because it failed to explain its assessment of substantial recent opinion evidence contained in the Special Rapporteur’s reports. All cases were remitted to the Tribunal for redetermination in such form as it might direct.

2. The ordinary extent of a public decision-maker’s duty to give reasons varies with the circumstances. A decision-maker generally need not address every argument or document, provided that the principal points are dealt with. The lead determination might have satisfied that ordinary standard.

3. The Tribunal had, however, intended its determination to operate as authoritative factual guidance for later Croatian Serb asylum appeals. Although a binding factual precedent is generally foreign to the common law outside principles such as res judicata and issue estoppel, authoritative country guidance is useful and practical in asylum adjudication. It promotes consistency and avoids repeated expenditure on the same country evidence. It remains subject to consideration of each claimant’s individual circumstances and material changes in country conditions.

4. That wider influence requires the duty to give reasons to be applied with particular rigour. The determination must be effectively comprehensive. It must address every issue capable of having a real, rather than fanciful, bearing on the result and explain the treatment of substantial evidence relating to each such issue. The Tribunal need not discuss trivial or repetitive material.

5. The Special Rapporteur’s reports were substantial, recent opinion evidence from an important source. Their treatment of alleged secret lists, arrests, detentions, prosecutions, local institutions, economic discrimination and property rights differed significantly from the more optimistic evidence on which the Tribunal relied. The failure to explain what the Tribunal made of those reports therefore breached the enhanced duty to give reasons.

6. The fact that some appellants may earlier have qualified as refugees did not determine the appeals or create a special burden-of-proof rule. The appellate authority must assess all the evidence and decide whether the fear of persecution is well founded at the date of its hearing.

7. SN’s appeal also succeeded independently. Her individual determination incorrectly stated that the lead determination found no reasonable likelihood of continuing employment discrimination. The lead determination had acknowledged serious continuing discrimination. Since a fear of persecution may arise from cumulative factors, SN’s claim required reconsideration on its individual merits.

1. Court of Appeal (Civil Division): The appeals were allowed. Each case was remitted to the Immigration Appeal Tribunal for redetermination. SN’s appeal was also allowed on the separate ground that her individual determination was inconsistent with the lead determination.

2. Immigration Appeal Tribunal: The Tribunal considered the eight cases together as test cases. It held that none of the appellants had established a well-founded fear of persecution and upheld the Secretary of State’s refusal of asylum.

3. Special Adjudicators: All eight appellants appealed against the refusal of asylum. S and M succeeded at this stage; the remaining appellants did not.