HK v Secretary of State for the Home Department

An asylum tribunal may reject an applicant’s account as implausible only through reasonable inferences grounded in the evidence. Inherent probability can be an unsafe guide where events occurred in a society and culture outside the decision-maker’s experience.

Relevant country and medical expert evidence must receive proper consideration. A tribunal cannot dismiss informed expert opinion as speculation merely because direct information is scarce. If several reasons support a factual conclusion and material reasons are legally defective, the conclusion may stand only where the appellate court can be tolerably confident that the surviving reasons would have produced the same decision.

HK, a citizen of Sierra Leone, claimed asylum on the basis that members of the Wunde secret society had subjected him to a forced initiation and would endanger him following his escape. His account was supported to varying degrees by country and medical experts.

Two adjudicators had successively dismissed his appeal, and each decision had been remitted. In June 2005 the Immigration Appeal Tribunal again dismissed the appeal. It rejected the disputed account and alternatively found that HK could return to Kambia without a real risk of discovery or harm.

The Court of Appeal considered whether those factual conclusions disclosed errors of law, including reliance upon speculation, failure to evaluate material expert evidence and inadequate reasoning about the possibility of avoiding risk.

1. Appeal allowed in part and remitted. Neuberger LJ held that the Tribunal’s rejection of HK’s account and its alternative finding that he would face no risk could not stand. Jacob LJ agreed with Neuberger and Chadwick LJJ. Chadwick LJ agreed that the matter required fresh factual determination.

2. An appellate court ordinarily cannot interfere with the Tribunal’s findings of primary fact or its factual inferences. Nevertheless, a material factual mistake producing unfairness, perversity or a finding wholly unsupported by evidence may constitute an error of law. The present case was unusual and extreme; the decision did not dilute the demanding threshold stated in E v Secretary of State [2004] QB 1044 and R (Iran) v Secretary of State [2005] EWCA Civ 982.

3. Credibility assessment in asylum cases must account for the low standard of proof and the decision-maker’s limited familiarity with the relevant society. An apparently extraordinary account cannot safely be rejected by applying domestic assumptions about inherent probability. Implausibility must rest on reasonable inferences rather than conjecture or speculation.

4. The Tribunal rejected HK’s evidence on grounds that were principally speculative or unsupported. It was not entitled, without an evidential basis, to reject his evidence about his surname or to require independent confirmation that his scars were characteristic of the Wunde. It also failed to give proper weight to consistent medical evidence and to relevant, balanced country expertise which supported several otherwise unusual features of the account. Although the Tribunal was not bound to accept the expert evidence, it was wrong to dismiss it as being of no assistance.

5. Where some of several reasons for rejecting evidence are defective, the appellate court must ask whether it can be tolerably confident that the same decision would have followed from the surviving reasons. That assessment concerns the reasons’ probative value and their apparent importance to the original tribunal, not merely their number. Too little of the Tribunal’s credibility reasoning survived to satisfy that test.

6. The alternative risk finding was also insufficiently reasoned. The Tribunal had not adequately considered the Wunde’s possible reach, the warnings reportedly given by others, the possibility of recognition, or the practical consequences of requiring HK always to conceal his scars. It lacked evidence that plastic surgery or another reliable method of concealment was available. The gaps in its analysis prevented the decision from standing.

7. The appeal under article 3 of the European Convention on Human Rights was allowed insofar as it depended upon the risk of mistreatment. The article 8 appeal failed because the Tribunal had directed itself correctly and had reached a conclusion open to it. The asylum and article 3 issues were remitted to a fresh Tribunal. Chadwick LJ added that he would not endorse a general proposition that the Refugee Convention and article 3 tests are identical.

1. Court of Appeal (Civil Division): The asylum appeal and the appeal under article 3 of the European Convention on Human Rights were allowed and remitted to a fresh Tribunal. The article 8 appeal was dismissed: [2006] EWCA Civ 1037.

2. Immigration Appeal Tribunal: On 29 June 2005 the Tribunal dismissed HK’s appeal. It refused permission to appeal on 27 July 2005.

3. Earlier tribunal proceedings: An adjudicator dismissed the appeal on 4 February 2003, but the Tribunal remitted it on 17 October 2003. A fresh adjudicator dismissed it on 26 February 2004, and the Tribunal remitted it again on 9 February 2005.