LD (Algeria) v Secretary Of State For Home Department

A later human-rights application must be decided independently on its current merits. An earlier asylum determination is the authoritative starting point for its own date, but it is neither binding nor the subject of a further appeal. The second adjudicator must distinguish genuinely new matters from an attempt to re-litigate the same case using evidence that was available earlier.

The Devaseelan v SSHD guidance properly preserves both consistency and flexibility. Previously omitted personal evidence calls for particular circumspection. Earlier objective evidence calls for caution because it may be dated, but remains capable of use. An appellate tribunal may intervene where an adjudicator accepts decisive expert evidence uncritically and fails to address substantial contrary material.

The appellant, an Algerian national, unsuccessfully claimed asylum in 1996. The first adjudicator rejected the essential basis of his account and found that he did not face a well-founded fear of persecution.

After the Human Rights Act 1998 came into force, he made a further application relying on Articles 2, 3, 5 and 8 of the ECHR. A second adjudicator allowed that appeal, relying substantially on an expert report and on asserted risks arising after the first determination. The Immigration Appeal Tribunal allowed the Secretary of State’s appeal. It held that the second adjudicator had misapplied the Devaseelan v SSHD guidance and had accepted the expert evidence without proper scrutiny.

The central questions were whether that guidance was lawful and correctly framed, and whether the Tribunal was entitled to interfere with the second adjudicator’s determination.

1. Appeal dismissed. In a single judgment of the Court, the Court of Appeal upheld the Immigration Appeal Tribunal’s determination.
2. A later human-rights application is a fresh application which must be determined on its individual and contemporary merits. It is not, however, to be treated as if the earlier asylum application had never occurred. The earlier determination is the starting point and remains authoritative as an assessment made at its date. It is not binding on the second adjudicator, who must consider changes of circumstance, new issues, and evidence which could not have been presented earlier.
3. The Court approved the guidance in Devaseelan v SSHD [2003] Imm AR 1. The guidance does not apply res judicata or estoppel. It promotes consistent decision-making while preserving the adjudicator’s duty to decide the new application conscientiously and flexibly on its true merits.
4. Previously omitted personal evidence should be approached with great circumspection because it may affect credibility. Earlier objective or expert evidence calls for caution for a different reason: it may be stale. It is not thereby excluded, and may still be used if its continuing relevance is demonstrated. A well-founded finding that earlier professional representation was incompetent may reduce the force of the guidance; reporting such a finding does not restrict the adjudicator’s power to make it.
5. The Tribunal was entitled to interfere. The second adjudicator’s conclusion depended on Mr Joffe’s report. He failed to address the reservations about that type of expert evidence identified in Slimani, and failed to explain why he rejected substantial contrary country material. As the Secretary of State had shown that the contrary conclusion was required, the Tribunal could set aside the favourable determination.

• Court of Appeal (Civil Division) Dismissed the appellant’s appeal from the Immigration Appeal Tribunal: [2004] EWCA Civ 804.
• Immigration Appeal Tribunal Allowed the Secretary of State’s appeal by a determination promulgated on 9 September 2003. It concluded that the appellant could safely be returned to Algeria.
• Special adjudicator Allowed the appellant’s later human-rights appeal by a determination promulgated on 28 October 2002.
• Special adjudicator Dismissed the original asylum appeal by a determination promulgated on 18 May 1998. Permission to appeal to the Immigration Appeal Tribunal was refused on 30 June 1998.