Malaba v Secretary of State for the Home Department

A tribunal deciding credibility must assess the evidence as a whole and give adequate reasons for its conclusion. Where material discrepancies affect the core of an asylum claim, it is insufficient merely to state that the applicant’s explanations have been considered. The tribunal should identify which discrepancies were satisfactorily explained and explain why any remaining discrepancies do not undermine the account.

Medical evidence capable of corroborating an applicant’s account does not remove that duty. If country evidence supports a credibility finding, the tribunal should identify the material and explain how it bears upon credibility. A failure to reason a critical credibility finding adequately may amount to a fatal error of law.

The appellant, a citizen of the Democratic Republic of Congo, claimed asylum on the basis that her political activities had led to detention, rape and torture. The Secretary of State rejected her claim because of serious discrepancies in her accounts. An adjudicator nevertheless found her credible and allowed her appeal on asylum and human rights grounds.

The Immigration Appeal Tribunal held that the adjudicator had not adequately addressed the discrepancies or explained her credibility finding. It remitted the case for a fresh hearing. Following transitional changes, the Asylum and Immigration Tribunal reconsidered and dismissed the appeal.

The Secretary of State accepted before the Court of Appeal that the latter tribunal had made errors of law. The issue was whether the adjudicator’s original determination should be reinstated or whether the case should be remitted for a further reconsideration.

1. Appeal allowed and matter remitted. The Asylum and Immigration Tribunal’s decision could not stand because its errors of law were conceded. The adjudicator’s earlier determination could not be reinstated because its central credibility finding was itself vitiated by a fatal lack of reasons. The matter was remitted to a fresh tribunal for full reconsideration.

2. Dyson LJ held that the discrepancies concerning the events which allegedly led to the appellant’s arrest and abuse were serious and went to the heart of her claim. Several materially different findings were open to the adjudicator. She might have regarded the discrepancies as immaterial, accepted the applicant’s explanations, or found that some discrepancies remained but did not destroy credibility. It was therefore imperative to explain which route she had taken.

3. The adjudicator’s statement that she had considered the response to the refusal letter was insufficient. She should have identified the discrepancies which had been satisfactorily explained, given short reasons for those findings, and explained why any unexplained discrepancies did not undermine the account. Her reliance on psychiatric evidence did not absolve her from that duty.

4. Pill LJ agreed and emphasised that immigration judges must assess credibility in the context of the evidence as a whole. Medical evidence may corroborate an applicant’s account, but it cannot replace reasoned consideration of material inconsistencies. Where country evidence is relied upon, the determination should ordinarily identify enough of that evidence and explain how it supports the credibility finding.

5. Adequate reasons tell the losing party why the case was lost and demonstrate that the fact-finding tribunal conscientiously addressed the central issue. A lack of reasoning may reveal a failure to determine whether the applicant was telling the truth.

6. The court noted a possible jurisdictional distinction, illustrated by Anisminic v Foreign Compensation Commission [1969] 2 AC 147, between errors rendering a decision a nullity and other errors of law. It did not determine that issue because its finding that the adjudicator had committed an error of law meant that the point did not arise.

1. Court of Appeal (Civil Division): In [2006] EWCA Civ 820, allowed the appellant’s appeal because the Asylum and Immigration Tribunal’s errors of law were conceded. It declined to reinstate the adjudicator’s determination, held that the adjudicator had also committed a fatal error of law, and remitted the appeal to a fresh tribunal for reconsideration.

2. Asylum and Immigration Tribunal: Following the transitional arrangements, reconsidered the appeal and dismissed it on 14 October 2005.

3. Immigration Appeal Tribunal: On 17 September 2004, allowed the Secretary of State’s appeal because the adjudicator had not adequately addressed the credibility issues or given sufficient reasons. It remitted the case for a fresh hearing.

4. Adjudicator: On 19 March 2004, accepted the appellant’s account of detention, rape and torture and allowed her appeal on asylum and human rights grounds.