I v Secretary of State for the Home Department

In an asylum appeal, an adverse credibility finding is not converted into an error of law merely because another view of the evidence is possible. Appellate intervention requires a finding that is demonstrably unfounded or erroneous, so that the factual decision acquires a legal dimension. Issues omitted from the grounds of appeal cannot ordinarily be advanced later unless they are obvious in the relevant sense. Permission to argue an issue does not itself cure the omission. Fresh evidence may be refused where procedural requirements are unmet, the issue was not raised below, and the evidence could have been obtained with due diligence. A tribunal may uphold an adverse credibility assessment where other unchallenged reasons independently support it.

The applicant, a Pakistani citizen, claimed asylum based on alleged persecution by the Pakistani government and the Prime Minister’s brother. An adjudicator rejected his credibility for several reasons and dismissed his appeal.

On reconsideration, the AIT found no material error of law and held that the adjudicator’s decision should stand. Permission to appeal was refused by the AIT and by Buxton LJ on the papers. The applicant renewed his application before the Court of Appeal, challenging aspects of the credibility reasoning and seeking to rely on fresh newspaper evidence. The central issues were whether the complaints disclosed an arguable error of law and whether the fresh evidence should be admitted.

1. Application refused. The court found no arguable error of law in the AIT’s decision to uphold the adjudicator’s adverse credibility findings.
2. The complaint concerning the account of Mr Binyameen’s death, including the alleged oversight of an English translation, had not been raised in the grounds of appeal. There had been no amendment, and the point was far from obvious in the relevant sense. A reference to the issue when permission was granted did not clearly make it an issue before the AIT. The court’s doubts were consistent with the observations in Krasniqi [2006] EWCA Civ 391, at paragraphs 17 to 20.
3. The AIT was entitled to refuse the fresh newspaper evidence. Rule 32 had not been complied with, no proper explanation had been given for the failure to produce the evidence earlier, the matter was absent from the grounds of appeal, and the evidence could have been obtained with due diligence. The same considerations meant that there was no realistic prospect of admitting it in the Court of Appeal.
4. On the merits, it was reasonably open to the adjudicator to deal with the discrepancy as she did, since the Secretary of State had raised the matter in the decision letter. The finding was not demonstrably unfounded or erroneous and had not acquired a legal dimension. The adjudicator was also entitled to draw the inference concerning the alleged involvement of the Prime Minister’s brother, in the absence of objective evidence supporting that account. The passport issue was neither properly raised before the AIT nor shown to have substance.
5. Viewed in the round, the credibility finding rested on several reasons, many of which were unchallenged. There was no realistic basis for appellate intervention. The renewed application for permission to appeal was refused.

1. Court of Appeal (Civil Division): The renewed application for permission to appeal was refused.
2. Asylum and Immigration Tribunal: On reconsideration in AIT No. AS/16755/2004, the tribunal found no material error of law and held that the adjudicator’s decision should stand. The AIT also refused permission to appeal.
3. Adjudicator: The applicant’s asylum appeal was dismissed following adverse credibility findings.