SS v Secretary of State for the Home Department

In an asylum appeal, a credibility finding may be challenged as an error of law where it is perverse or rests on a misunderstanding of the case. An appellate tribunal may refuse a late and imprecise amendment to the grounds of appeal where its discretion is properly exercised. An adjudicator may assess credibility by reference to interviews, statements and oral evidence, including material omissions where the appellant had a fair opportunity to state the alleged fear. The adjudicator need make only those findings necessary to determine the case actually presented. A complaint based on a case advanced for the first time on appeal will not ordinarily establish legal error.

The appellant, a Palestinian-Lebanese man, claimed asylum after arriving in the United Kingdom. The Secretary of State refused him leave to enter, and an adjudicator dismissed his appeal. The Immigration Appeal Tribunal dismissed his further appeal.

Before the Court of Appeal, the appellant argued that the Tribunal had wrongly refused an amendment to the grounds of appeal and that the adjudicator had misunderstood his case. He contended that the collapse of the South Lebanon Army and the rise of Hezbollah created a changed risk of persecution because he might be regarded as a collaborator. The central issue was whether the Tribunal or adjudicator had made an error of law.

The appeal was dismissed unanimously, although the judges differed in their emphasis.

1. Amendment of grounds. The Immigration Appeal Tribunal was entitled to refuse the very late application to amend the grounds. The proposed amendment was imprecise and did not identify the case concerning the changed political situation in southern Lebanon which was later advanced before the Court of Appeal. The refusal was within the Tribunal’s discretion and disclosed no error of law. This was supported by Lord Justice Pill and Sir Peter Gibson.
2. Credibility findings. Findings of fact can amount to an error of law where they are perverse or based on a misunderstanding of the case presented. That threshold was not met. The adjudicator was entitled to consider the appellant’s interviews, written statement and oral evidence, and to attach significance to the absence of any clear account of the alleged risk arising from the changed situation, despite opportunities to provide it. The adjudicator was also entitled to reject the appellant’s criticisms of the interviews and to make robust credibility findings on the material before him.
3. Necessary findings. The adjudicator was required to make only those factual findings necessary to decide the case as it had been presented. His failure to make further findings about matters such as the appellant’s reasons for living in the security zone did not constitute an error of law, particularly once his credibility findings had disposed of the claim.
4. Separate reasoning. Lord Justice Sedley agreed that the appeal failed, but did not accept that the appellant’s failure to raise the changed circumstances at interview was surprising or that the adjudicator had properly assessed the case against the current situation. His view was that the appeal failed because the case now relied upon had never been acceptably advanced before the lower tribunals. He observed that a fresh application might be entertained if the failure to advance the case earlier were adequately explained.

Order: Appeal dismissed.

• Court of Appeal (Civil Division) — dismissed the appeal: [2006] EWCA Civ 171.
• Asylum & Immigration Tribunal — dismissed the appeal from the adjudicator’s determination, notified on 28 January 2005.
• Adjudicator — dismissed the appeal against the Secretary of State’s decision of 25 September 2003 refusing leave to enter, asylum having been refused. The determination was notified on 18 February 2004.