Tajadin, R (on the application of) v Immigration Appellate Authority

An asylum adjudicator must address crucial factual issues with clear, reasoned and evidence-based analysis. A decision may be flawed where the adjudicator confuses distinct languages, misunderstands expert evidence, or rejects an expert report without engaging with its supporting detail. Although a claimant bears responsibility for producing evidence, the weight given to an untested report must be assessed fairly and rationally in the circumstances. Where an adjudicator relies on an alternative safety-of-return basis, the reasoning must address the relevant evidence, including conflicting objective country material. A reviewing court should not uphold a materially defective decision by assuming that the outcome would inevitably have been the same.

The claimant sought judicial review of an adjudicator’s decision, promulgated on 15 May 2003, dismissing her appeal against refusal of asylum and protection under article 3 of the European Convention on Human Rights. She claimed to be a Bajuni from Somalia. The Secretary of State had rejected that account principally because of doubts about her language, knowledge and nationality.

The claimant relied before the adjudicator on an expert report by Dr Virginia Luling, who concluded that she was Bajuni and Somali. The adjudicator rejected the report and also concluded that return would be safe. The central issues were whether the adjudicator had materially misunderstood the language evidence, dealt lawfully with the expert report, and adequately reasoned the alternative safety-of-return conclusion.

1. The application was allowed. The adjudicator’s decision was quashed and the matter was ordered to be reconsidered by a different adjudicator, unless the Secretary of State changed his decision. The claimant was awarded her costs.
2. The adjudicator had confused Kibajuni, a language related to Swahili, with Somali. The claimant’s statement that she spoke very little Somali did not conflict with the expert evidence that she could speak sufficient Kibajuni to conduct an interview. That error went to the root of the conclusion that she was not Bajuni.
3. The adjudicator was entitled to reject Dr Luling’s report, but the reasons given did not provide a sound basis for doing so. The absence of cross-examination was an especially weak reason in circumstances where the claimant’s solicitors had expressly asked whether the Home Office required the expert to attend and had received no response. The adjudicator was also wrong to reject geographical evidence merely because no map had been produced, without addressing the detailed evidence about local geography, schools, cinemas and dances.
4. The general proposition in R v Secretary of State for the Home Department ex parte Khanafer [1996] Imm AR 212, that a claimant must call the evidence on which she relies and cannot complain if an untested report is rejected on proper reasons, was accepted. It did not justify the reasoning used in this case.
5. The alternative conclusion that return was safe was also inadequately reasoned. The adjudicator failed to address relevant passages in the CIPU report concerning Bajunis, failed to confront conflicting objective evidence, and gave insufficient reasons concerning conditions in Kenya. The court could not say that the same result was inevitable or even likely on reconsideration.

The claimant appealed to an adjudicator against the Secretary of State’s refusal of asylum. The adjudicator dismissed the appeal on 15 May 2003. The Administrative Court allowed the judicial review, quashed that decision and remitted the matter for reconsideration by a different adjudicator unless the Secretary of State changed his decision.