R v Secretary of State for the Home Department

Previous determinations concerning an appellant, or an intimately connected relative, should generally be available to and considered by the decision-maker. Their relevance and weight remain case-specific. Failure to consider such a determination amounts to an error of law only where the omission causes a materially erroneous approach to credibility or otherwise affects the decision. A tribunal may still make its own credibility findings after considering the relevant oral and country evidence. Where the first-instance decision gives careful and sustainable reasons, appellate intervention is unwarranted merely because an earlier determination was not mentioned. Late fresh evidence alleging procedural error may be refused where its production is insufficiently explained and the asserted omission is difficult to accept.

Mr R, a Pakistani Ahmadi, sought permission to appeal against an Asylum & Immigration Tribunal decision dated 6 October 2005. On reconsideration, the Tribunal upheld an immigration judge’s decision dated 17 May 2005 dismissing his asylum and human rights appeals against refusal of refugee status and directions for removal.

Mr R argued that the immigration judge’s credibility findings were procedurally flawed because his father’s earlier asylum determination, which contained a favourable credibility finding, had not been considered. Fresh evidence from the applicant’s former representative was relied upon to show that the determination had been produced. He also argued that insufficient regard had been given to country material concerning the treatment of Ahmadis in Pakistan. The central issue was whether these matters disclosed an error of law requiring relief or remittal.

1. Disposition. The application for permission to appeal was refused. No arguable error of law had been demonstrated.
2. Earlier determination. The Court agreed with the general proposition in Chicaiza [2002] UKIAT 01200 that an earlier determination concerning the appellant, or an intimately connected relative, should generally be available to and considered by the decision-maker. The weight to be given to it depends on the circumstances and must be assessed case by case. An omission may constitute an error of law where it causes the decision-maker to adopt the wrong starting point on credibility and materially affects the later assessment.
3. Application to the evidence. The father’s determination was remote from the central issues. Much of the applicant’s account concerned events after the father had left Pakistan, and the father’s own evidence was that the applicant had remained to run the family business. The immigration judge was entitled to assess the applicant’s and father’s credibility independently. The judge had carefully considered the oral evidence, country material, relocation to Karachi, the applicant’s peaceful residence, his marriage to an Ahmadi woman, his alleged religious activities and the circumstances of his departure. The Court agreed with the Tribunal that the fact-finding process was sustainable and disclosed no error of law.
4. Country material and fresh evidence. The immigration judge had adequately considered the country evidence concerning Ahmadi persecution, including the relevance of the manner and persistence of proselytising. Although the Court considered the merits on the assumption that the former representative’s statement could be admitted, it held that the evidence should not properly be admitted. Its late production was insufficiently explained, and it was difficult to accept that a relevant document had been overlooked in a determination of such quality. The application was therefore refused.

1. Court of Appeal (Civil Division) Latham LJ considered the application on paper on 17 May 2006 and refused permission. Lord Justice Pill considered the renewed application on 27 June 2006 and refused it.
2. Asylum & Immigration Tribunal On reconsideration, the Tribunal upheld the immigration judge’s decision dated 17 May 2005.
3. Immigration judge The applicant’s appeals against refusal of refugee status and removal directions were dismissed on asylum and human rights grounds.