TG (Ethiopia) v Secretary of State for the Home Department

At the permission stage, an arguable error of law may arise where an adverse credibility finding depends on an apparent inconsistency that was not raised with the appellant. Procedural fairness may require an opportunity to explain the point, particularly where the finding is potentially pivotal. A permission decision does not determine whether the explanation is accepted or whether the alleged error is ultimately material. Other grounds may remain open for consideration by the full appellate court.

The appellant, an Ethiopian national of Oromo ethnicity, claimed asylum and protection under the Human Rights Act 1998 and the European Convention on Human Rights. An immigration judge dismissed his appeal, finding that his account of political activity, detention and ill-treatment was not credible in material respects.

On reconsideration, the Asylum and Immigration Tribunal found no material error of law and allowed the immigration judge’s decision to stand. The appellant renewed his application for permission to appeal after permission had previously been refused on paper. The central issue was whether the immigration judge had relied on an apparent discrepancy concerning the timing and circumstances of the detention of the appellant’s brother without giving the appellant an opportunity to address it.

Application granted. The renewed application for permission to appeal was granted, with the appeal to be heard by a Court of Appeal consisting of two Lords Justices. The court did not determine the merits of the asylum appeal.

1. Credibility finding. The immigration judge accepted the appellant’s Oromo ethnicity and considered it reasonably likely that he had been detained and seriously ill-treated in 1995. The judge nevertheless relied on alleged discrepancies concerning the detention of another member of the appellant’s cell and the appellant’s brother. The reasoning appeared to assume that the brother’s three-year detention occurred before or during 1995.
2. Arguable procedural error. The apparent anomaly had not been raised by the respondent, during the hearing, or by the immigration judge. The appellant therefore had no opportunity to clarify whether the brother’s detention occurred after 1995. Since the adverse credibility finding could be pivotal, it was arguable that the immigration judge should have given the appellant an opportunity to deal with the point. This disclosed an arguable error of law.
3. Remaining grounds. The complaint concerning a letter from the British Embassy was closely connected with the first ground. If the first ground failed, that complaint appeared weak, but permission was not formally refused. The separate ground concerning the appellant’s activities in the United Kingdom was not developed and was left for consideration by the full court.
4. Directions. The appellant was directed to produce a new bundle preserving the existing pagination and using one clear page reference per page.

• Court of Appeal (Civil Division): On the renewed application, permission to appeal was granted. The appeal was directed to be heard by two Lords Justices.
• Asylum and Immigration Tribunal: On reconsideration, the Tribunal found no material error of law in the immigration judge’s determination and allowed the dismissal of the appeal to stand: [AIT No. HX/03493/2005].
• Immigration judge: Mr Cope dismissed the appellant’s appeal against refusal of his asylum and human-rights claims.