Mibanga v Secretary of State for the Home Department

A fact-finder assessing an asylum claimant’s credibility must consider all relevant evidence before reaching a conclusion. Medical and country expert evidence must form an integral part of that assessment. Experts cannot determine credibility, but their evidence may provide crucial factual context. Reaching an adverse credibility conclusion and then asking whether expert evidence displaces it is a structural error of law. Conclusive rejection of a relevant expert view requires an explanation. An appellate court reviewing factual reasoning on a point of law must distinguish a fundamental defect in approach from disagreement about evidential weight. A finding that internal relocation is safe must take account of expert evidence addressing risk throughout the country.

The appellant, a citizen of the Democratic Republic of Congo, challenged the Secretary of State’s refusal of asylum and leave to remain on human rights grounds. He alleged prolonged detention and torture by rebel forces because of his association with a Mai-Mai militia. He produced medical evidence concerning his scars and country expert evidence supporting aspects of his account and addressing the safety of return.

An adjudicator dismissed his appeal after rejecting his credibility. The Immigration Appeal Tribunal upheld that determination and treated the asserted absence of risk in Kinshasa as decisive. The appellant appealed to the Court of Appeal on the ground that the adjudicator’s method of assessing credibility was legally flawed. The central issues were whether the expert evidence had been considered within the credibility assessment and whether the tribunal had overlooked evidence concerning internal relocation.

1. The appeal was allowed unanimously. The adjudicator’s approach to the evidence contained errors of law which the Immigration Appeal Tribunal should have recognised. The court set aside the tribunal’s dismissal and the adjudicator’s determination, and remitted the appeal to a different adjudicator for fresh determination.

2. A fact-finder must survey all relevant evidence before reaching a conclusion. Credibility remained the adjudicator’s responsibility, but expert evidence could supply factual context crucial to assessing the claimant’s account. The adjudicator had conclusively rejected the central allegations before considering the medical report, and then asked whether that report resolved her existing doubts. This artificial separation was a structural failing rather than merely an error in appreciating evidence. The approach stated in HE (DRC - Credibility and Psychiatric Reports) [2004] UKIAT 00321, requiring a report relied upon for credibility to be considered integrally, supported that conclusion.

3. An adjudicator could reject a country expert’s views, but the conclusive rejection adopted here required reasons. Several findings of complete incredibility contradicted the expert’s informed account of detention conditions, family visits and the circumstances of escape. The adjudicator needed to explain why those views were rejected as outside the range of views reasonably held.

4. Appellate scrutiny of an adjudicator’s reasons should be broad and avoid technical criticism. Where an appeal lay only on a point of law under section 101(1) of the Nationality, Immigration and Asylum Act 2002, disagreement about factual conclusions was insufficient. The defects established here concerned the fundamental method of fact-finding and therefore constituted errors of law or principle.

5. The tribunal also erred in asserting that there was no evidence of risk in Kinshasa. The country expert had expressly suggested that no area of the country would be safe. The tribunal had overlooked that evidence and had given no express consideration to whether relocation would be unduly harsh. The court left the validity of the expert’s assessment for redetermination.

6. Under section 85(4) of the Nationality, Immigration and Asylum Act 2002, the adjudicator on remittal could consider recently published country material. The respondent was ordered to pay the appellant’s costs, subject to a Community Legal Service Funding detailed assessment.

• Court of Appeal (Civil Division): In [2005] EWCA Civ 367 , allowed the appeal, set aside the tribunal’s dismissal and the adjudicator’s determination, and remitted the appeal to a different adjudicator.
• Immigration Appeal Tribunal: On 10 August 2004, dismissed the appeal from the adjudicator on a point of law. Subsequently refused permission to appeal to the Court of Appeal.
• Adjudicator: On 1 September 2003, dismissed the appeal against the Secretary of State’s refusal of asylum and leave to remain on human rights grounds.