Kantharajah, R (on the application of) v Secretary of State for the Home Department

A concession by a Home Office presenting officer on an appellant’s credibility is binding on an adjudicator. The court must determine objectively whether the words used, read in context, amounted to such a concession. A concession that inconsistencies should not prejudice an applicant does not necessarily concede that the substance of the account is credible. Reliance on the refusal letter, the structure of the presenting officer’s submissions and the opposing representative’s conduct may show that the concession was limited. A judicial review challenge will fail where the alleged concession was not made and remittal would have no real prospect of success.

The claimant, a Sri Lankan asylum seeker, applied for judicial review after an adjudicator rejected her account of detention, torture and escape as not credible. The adjudicator concluded that she did not fall within an exceptional category relevant to the prevailing situation in Sri Lanka.

Permission was limited to the question whether the Home Office presenting officer had conceded the claimant’s credibility. The Immigration Appeal Tribunal had refused permission to appeal, stating that an apparent acceptance of credibility did not bind the adjudicator. The central issue was whether the presenting officer had made a full concession of credibility or only accepted that inconsistencies should not be held against the claimant.

1. Application rejected. The claimant was not entitled to judicial review because the presenting officer had made no concession that the substance of her account was credible.
2. The governing principle, accepted by the Secretary of State, was that a genuine concession on credibility would bind the adjudicator: 00TH01426. The issue was therefore the objective construction of the presenting officer’s words in their context, rather than her later account of what she intended.
3. The words recorded by the adjudicator, including that inconsistencies may have resulted from misunderstanding rather than an attempt to deceive, amounted only to a limited concession. They indicated that the inconsistencies should not prejudice the claimant. They did not amount to acceptance that the account was plausible or truthful in substance.
4. That construction was reinforced by the presenting officer’s reliance on the refusal letter, which had rejected the claim fundamentally on credibility grounds, and by the fact that the claimant’s representative continued to make submissions on credibility. Those features were inconsistent with a full concession having changed the focus of the hearing.
5. The Immigration Appeal Tribunal’s statement that an acceptance of credibility would not bind the adjudicator disclosed an error of law if it referred to full credibility. Nevertheless, remittal was refused because there was no real prospect of success: no full concession had been made.
6. The court noted obiter that a misunderstanding about the scope of a concession might cause unfairness where it directly prejudiced the conduct of a case. No such prejudice had been established here. Detailed assessment of costs was ordered.

Permission for judicial review was granted by McKay J and limited to one ground. The claim challenged the Immigration Appeal Tribunal’s refusal of permission to appeal, but the High Court rejected the application.