Ocampo v Secretary of State for the Home Department

Strict res judicata and issue estoppel do not govern successive immigration appeals where different applicants rely on materially overlapping evidence. An earlier determination remains relevant, but it is a starting point rather than a binding conclusion.

The Devaseelan approach applies flexibly. The tribunal should consider the nature, circumstances and materiality of later evidence, while balancing consistency and firm immigration control against fairness to the individual. Material evidence may be considered even if it could, with reasonable diligence, have been produced earlier. Its use does not constitute a collateral attack on another person’s refugee status.

The appellant appealed, with permission, from the Asylum and Immigration Tribunal’s refusal of his asylum appeal following reconsideration. His claim depended on threats allegedly made by FARC after his work as a Colombian police officer. His daughter had previously obtained asylum after a Special Adjudicator accepted substantially overlapping evidence from both of them.

The Tribunal treated the daughter’s determination as relevant but not binding. Having considered the appellant’s earlier interview and other evidence revealing material inconsistencies, it rejected the credibility of both witnesses.

The central issue was whether res judicata, issue estoppel or related principles prevented the Tribunal from reassessing the evidence accepted in the daughter’s successful appeal.

1. Appeal dismissed. The Tribunal had been entitled to reassess the overlapping evidence and to take account of material inconsistencies disclosed by evidence which had not been before the Special Adjudicator in the daughter’s appeal.

2. Strict principles of res judicata and issue estoppel were, at the least, of doubtful application to immigration appeals. Successive immigration proceedings require a flexible approach comparable to that adopted in public law and under the Devaseelan guidance. An earlier determination is relevant, but the later tribunal must decide the fresh appeal on its own merits and on the evidence before it: [2003] Imm AR 1 and [2004] EWCA 804 considered and applied.

3. The Devaseelan approach also applies where the applicants differ but their evidence materially overlaps. Its operation may be adapted according to the nature of the later evidence, the circumstances in which it was or was not produced earlier, and its materiality to a just outcome. The objectives of consistency, firm immigration control and due process must be balanced with fairness in the particular case.

4. The Tribunal did not require evidence satisfying the full Ladd v Marshall test before reconsidering the earlier findings. Even if the appellant’s interview record could, with reasonable diligence, have been produced in the daughter’s appeal, its material inconsistencies could properly be considered. The appellant did not challenge the Tribunal’s conclusion that his account was untruthful.

5. Reconsidering the daughter’s credibility did not alter or collaterally attack her refugee status. Nor was the Special Adjudicator’s decision a judgment in rem making the underlying credibility findings conclusive against all persons. The later use of cogent evidence was neither an abuse of process nor an impermissible challenge to her status.

6. Obiter, the Court expressed reservations about the Tribunal’s suggestion that confidentiality prevented the Secretary of State from using the appellant’s asylum interview when cross-examining him as a witness in his daughter’s appeal. The two claims arose substantially from the same alleged facts, and the Court saw no apparent reason why the inconsistent account could not have been put to him.

1. Court of Appeal (Civil Division): Dismissed the appellant’s appeal in [2006] EWCA Civ 1276, holding that the Tribunal was entitled to reconsider the overlapping evidence and rely on the material inconsistencies.
2. Asylum and Immigration Tribunal: On 7 October 2005, following a reconsideration hearing, dismissed the asylum appeal. It treated the earlier determination in the daughter’s appeal as evidence rather than as binding and found the appellant and his daughter not credible.