Mibanga v Secretary of State for the Home Department

When credibility is in issue, a fact-finder must assess the claimant's account, medical material and relevant country evidence together. Expert evidence cannot decide credibility, but it may supply the factual context essential to a lawful assessment. It is an error of law to reject the account first and then treat a credibility-relevant expert report as an add-on that cannot affect the result. A tribunal which rejects a focussed expert view in conclusive terms must give reasons which engage with that view. An appellate tribunal must also address material evidence relevant to the proposed place of internal relocation.

The appellant, a citizen of the Democratic Republic of Congo, sought asylum and leave to remain on human rights grounds. He alleged detention and torture by RCD-Goma because of his association with the Mai-Mai. He relied on medical evidence of scarring and a country expert report supporting the plausibility of aspects of his account and asserting that no part of the country would be safe for him.

An adjudicator dismissed the appeal after finding the account wholly incredible and held that he could return to Kinshasa. On 10 August 2004, the Immigration Appeal Tribunal dismissed his appeal on a point of law, treating risk on return to Kinshasa as decisive. The appeal raised whether the adjudicator had conducted a lawful cumulative credibility assessment and whether the tribunal had properly addressed the evidence on internal relocation.

Disposition

Appeal allowed unanimously. Wilson J gave the first judgment. Buxton LJ agreed with his reasons, and Ward LJ agreed with both judgments. The court set aside the tribunal's dismissal, set aside the adjudicator's determination, and remitted the appeal to a different adjudicator for a fresh determination.

1. A fact-finder must survey all evidence relevant to credibility before reaching a conclusion. Medical and country expert reports do not usurp the judicial function of deciding credibility. They may, however, provide a factual context which is crucial to deciding whether the claimant's account is true.

2. The adjudicator made a structural error by deciding that the central allegations were wholly incredible before considering the medical report, and then asking whether that report displaced her conclusion. That was contrary to the approach described in HE (DRC - Credibility and Psychiatric Reports) [2004] UKIAT 00321. The medical evidence should have formed an integral part of the credibility assessment.

3. An adjudicator may reject an expert's conclusions, but a categorical rejection requires an explanation which engages with the expert's reasons. The adjudicator had not explained why the country expert's views about the alleged escape, family visits, detention and torture should be treated as outside the range of credible views. These were errors of law or principle, rather than mere disagreement with findings of fact.

4. The tribunal also erred in treating there as being no evidence of risk in Kinshasa. It had overlooked the country expert's conclusion that no area of the Democratic Republic of Congo would be safe. On remittal, section 85(4) of the Nationality, Immigration and Asylum Act 2002 permitted the new adjudicator to consider the proposed updated country material.

The respondent was ordered to pay the appellant's costs, subject to detailed assessment under the Community Legal Service funding arrangements.

• Court of Appeal (Civil Division): Allowed the appeal and remitted the matter to a different adjudicator for fresh determination: [2005] EWCA Civ 367.
• Immigration Appeal Tribunal: On 10 August 2004, dismissed the appellant's appeal on a point of law from the adjudicator's determination.
• Adjudicator: On 1 September 2003, dismissed the appeal against refusal of asylum and leave to remain on human rights grounds.