Abdullah v Secretary of State for the Home Department

In an asylum appeal, the Court of Appeal is concerned with error of law, not a rehearing of disputed facts. Findings open on the evidence will stand unless legally defective, including through materially inadequate reasoning. A flexible approach to fresh evidence does not require an appellate tribunal to admit further statements or documents where they add little to issues already determined. Medical evidence that scars are merely consistent with torture is not, without more, corroboration of the account. The decision-maker may assess it with all the evidence and consider objective country material when evaluating return risk. Past detention or ill-treatment does not itself establish continuing interest or a real risk on return.

The applicant, a Sudanese citizen, claimed asylum on grounds of religion, political opinion and race. An adjudicator rejected material parts of his account, including his asserted ethnicity and level of political activity, and found him not to be of interest to the Sudanese authorities. The Immigration Appeal Tribunal dismissed his appeal on 28 October 2004 after considering fresh material, including an SPLM membership card and Dr Steadman’s medical report.

Before the Court of Appeal, the applicant argued that the Tribunal had wrongly refused fresh evidence, failed to address prior detention and torture, and gave inadequate reasons for rejecting his account of escape. He also sought an extension of time to challenge the Tribunal’s decision. The central issues were whether the grounds disclosed an error of law and whether the fresh material should have been admitted.

1. Disposition. The application was refused on the merits. As no arguable point of law arose, the court did not need to determine the application for an extension of time. The judge stated that she would have granted an extension had there been an arguable ground.
2. Fresh evidence. The Tribunal had dealt properly with the proposed fresh evidence. The SPLM membership card did no more than support the adjudicator’s finding that the applicant was, at most, a low-level member. A further witness statement describing meetings attended after the adjudication did not meet even the broader and more flexible approach relied upon by the applicant. The refusal to admit the material disclosed no error of law. The applicant’s reliance on ENR v Secretary of State for the Home Department [2004] EWCA Civ 49, particularly paragraph 49, did not alter that conclusion.
3. Appellate restraint and reasons. The appeal was essentially an appeal on the facts dressed up as an appeal on a point of law. The factual findings of the adjudicator and Tribunal were plainly open on the evidence. Although a fuller explanation of why the escape account was implausible might have been preferable, the adjudicator had heard and tested the evidence and gave sufficient reasons. The alleged deficiency did not justify intervention.
4. Evidence and future risk. Scars merely consistent with torture did not corroborate the applicant’s account without more. The medical evidence had to be assessed with the totality of the evidence and could not establish torture or continuing interest by itself. The adjudicator was entitled to consider objective evidence about the treatment of failed asylum seekers returning to Sudan. Questioning and possible tax demands did not necessarily amount to ill-treatment.
5. The applicant had failed to establish a real risk of persecution on return. Detailed assessment of the publicly funded costs was directed.

1. Court of Appeal (Civil Division). On 12 December 2005, the court refused the application on the merits and found no arguable error of law. The application for an extension of time therefore did not require determination. The decision is reported at [2005] EWCA Civ 1667.
2. Immigration Appeal Tribunal. The Tribunal dismissed the applicant’s appeal on 28 October 2004.
3. Adjudicator. The adjudicator made a decision against the applicant on 17 February 2004.