AK v Secretary of State for the Home Department

A tribunal assessing credibility need not give detailed reasons for every discrepancy. It must, however, explain a conclusion that a discrepancy is insignificant where that conclusion is not apparent from the facts and an objective reader could not otherwise understand it.

In protection claims, the decisive inquiry is the prospective risk on return. Past events and the response of the authorities are relevant evidence, but they do not replace an assessment of future persecution or ill-treatment and of whether effective protection will be available.

The appellant, a Pakistani local politician and anti-corruption committee chairman, was granted refugee and human-rights protection by an adjudicator. The adjudicator accepted his account of past detention, threats and attacks, found that protection in Pakistan would be insufficient, and rejected internal relocation.

The Asylum and Immigration Tribunal allowed the Secretary of State’s appeal and remitted the case. It held that the adjudicator had inadequately reasoned the treatment of credibility discrepancies and had erred on sufficiency of protection. The remitted hearing resulted in a determination adverse to the appellant, which he accepted was not legally flawed.

The appeal concerned whether the Tribunal had lawfully set aside the original favourable determination.

1. Appeal dismissed. Sedley LJ, with whom Lloyd and Mummery LJJ agreed, held that the Tribunal was entitled to remit the appeal because the original adjudicator had made a material error of law on credibility. The later adverse determination therefore stood.

2. An immigration judge will ordinarily meet the duty to give reasons by identifying a discrepancy and stating whether it affects credibility. The duty is context-sensitive. Further explanation is required where the conclusion that a discrepancy is significant or insignificant does not follow obviously from the factual premises, so that an objective reader could not understand it.

   Here, the omitted account of an attack on the appellant’s home had apparently become the event that prompted his request for protection and eventual departure. The adjudicator’s conclusion that this was a minor discrepancy which did not affect credibility therefore required explanation. The Tribunal was entitled to treat its absence as material. It did not hold that the favourable credibility conclusion was unavailable on a properly reasoned assessment.

3. The court disagreed with the Tribunal’s separate criticism of the adjudicator’s treatment of sufficiency of protection. The inquiry under both Conventions concerns what may happen on return. Past events, including a police investigation constrained by an inability to identify attackers, are relevant but do not substitute for an assessment of prospective risk.

   The Tribunal had not disturbed the adjudicator’s analysis of the political situation or the appellant’s profile. Nor did the absence of a police guard determine whether protection was sufficient. The country guidance in Hussein, concerning non-state actors and a functioning criminal process, did not resolve a claim involving possible state-instigated or state-condoned persecution and impunity. The court’s view on this ground did not alter the result because the credibility-reasons error alone justified the remittal.

• Court of Appeal (Civil Division) — By [2006] EWCA Civ 1182, dismissed the appellant’s challenge to the remittal decision. The later adverse determination remained in force.
• Asylum and Immigration Tribunal — On 14 April 2005, allowed the Secretary of State’s appeal from the adjudicator and remitted the protection appeal for a fresh hearing, identifying errors concerning reasons for credibility findings and sufficiency of protection.
• Immigration judge — On rehearing, gave a determination adverse to the appellant on 25 August 2005. The appellant accepted that it disclosed no error of law.
• Adjudicator — On 6 October 2004, allowed the appellant’s appeal under the Refugee Convention and the European Convention on Human Rights.