Diaby v Secretary of State for the Home Department

In an asylum appeal, credibility must be assessed on the evidence as a whole. Medical and psychiatric evidence that may bear on credibility, memory, trauma, scarring or physical injury must be considered before an adverse credibility finding is reached.

An error in that sequence is material where proper consideration could possibly have produced a different conclusion. Other serious credibility concerns do not make the error immaterial. Where the appellate tribunal is required to assess materiality by reference to medical evidence, it must ensure that the evidence is available and must not assume, without an evidential basis, that it is irrelevant. A material error requires reconsideration by a fresh tribunal.

The appellant, an Ivory Coast national, claimed asylum on the basis of alleged persecution by military and rebel forces because of his political affiliation and ethnicity. An adjudicator dismissed his appeal, having made an adverse credibility finding before considering medical and psychiatric reports submitted after the hearing.

The Immigration Appeal Tribunal accepted that this was an error of law but dismissed the appeal, reasoning that the appellant had not shown that the error was material. The reports were not before the Tribunal. The central issue was whether the error might have affected the credibility assessment and whether the case should be remitted for a fresh hearing.

1. Appeal allowed. Lord Justice Scott Baker held, and Lord Justice Laws agreed, that the adjudicator had erred in law by forming an adverse view of credibility without properly considering the medical and psychiatric reports that had been admitted for consideration.
2. The reports contained material evidence. The general practitioner's report described scarring and eye problems which were consistent with the appellant's account. The psychiatric report recorded an eye defect, burn scars and symptoms potentially consistent with post-traumatic stress. Those matters could bear directly on the adjudicator's conclusions concerning the alleged injuries, the appellant's distress and the consistency of his account.
3. The correct approach was to assess credibility in the round, including the medical evidence, rather than decide credibility first and then attach little weight to medical material because the account was rejected. The error was material because it was possible that proper consideration of the reports would have led to a different credibility conclusion. It was unnecessary to show that a different result was more likely than not.
4. The Immigration Appeal Tribunal had also approached materiality too narrowly. In circumstances where permission to appeal had been granted on the basis that the medical evidence might affect the credibility assessment, the Tribunal should have ensured that the reports were available and should not have proceeded on the unsupported assumption that they contained nothing material. The burden was not, in those circumstances, properly discharged by requiring the appellant to demonstrate the effect of evidence which was not before the Tribunal.
5. The case was remitted for reconsideration by a fresh tribunal. The court recognised that the ultimate result might remain the same because there were other substantial concerns about credibility. The appellant was awarded his costs of the appeal.

1. Court of Appeal (Civil Division) — [2005] EWCA Civ 651: appeal allowed and case remitted for reconsideration by a fresh tribunal.
2. Immigration Appeal Tribunal — appeal refused on 8 October 2004.
3. Adjudicator — asylum and human rights appeal dismissed on 20 November 2003.