Dube, R (on the application of) v Secretary of State for the Home Department

An adjudicator determining an asylum claim must address a highly material credibility issue identified in the refusal letter, even where the adjudicator may ultimately accept the claimant’s explanation. A tribunal may treat an issue as properly before it where it was expressly raised in the notice of appeal and no objection was made. A material factual error must concern a fact capable of being established by objective and uncontentious evidence. Internal relocation is a question of fact in every case. Where it is raised, it must be addressed, including where the feared persecution is by the government and the claimant is an opposition-party member.

Mr Dube, a Zimbabwean citizen, claimed asylum on the basis that he was a low-level member and supporter of the MDC and had suffered persecution. An adjudicator accepted his credibility and allowed the claim.

The Secretary of State appealed. The Immigration Appeal Tribunal allowed the appeal because the adjudicator had failed to address the significance of Mr Dube’s earlier journey to the United Kingdom, his return to South Africa, and his subsequent return using another false passport. It also held that the adjudicator had failed to address internal relocation. The claim was remitted to a new adjudicator.

Mr Dube sought judicial review, arguing that the first journey had not been raised before the adjudicator and that internal relocation was irrelevant because the feared persecution was by the Zimbabwean government.

1. The application for judicial review was dismissed. The tribunal was entitled to proceed on the basis that the first-journey issue was before it because the issue was expressly raised in the notice of appeal and no objection was made.

2. In judicial review of a tribunal decision, the court will rarely investigate what occurred before the adjudicator. A factual error will justify intervention only where it concerns a material fact that can be established by objective and uncontentious evidence. Here, the evidence about whether the issue had been raised before the adjudicator was conflicting, so the court would not resolve that dispute.

3. The circumstances of Mr Dube’s first journey, return to South Africa, acquisition of a second false passport and return with his son were highly material to credibility. The adjudicator was therefore required to address them, although it remained open to the adjudicator to accept the explanations and find that they did not undermine the asylum claim. The tribunal was right to allow the appeal on this ground.

4. Internal relocation is a question of fact in every case. Once raised, it must be addressed. The fact that the feared persecution was governmental did not make relocation irrelevant, since the issue included whether an MDC member would be identified and persecuted elsewhere in Zimbabwe. If the issue was raised only in submissions and fairness required further evidence, the adjudicator could adjourn, but could not ignore it.

5. The tribunal had misunderstood the factual basis of the claim by treating it as one based merely on non-support for ZANU-PF rather than MDC membership. That error was immaterial because, applying N, internal relocation could still arise in the case of a low-level MDC activist.

6. The claimant’s credibility was not determined by this judgment. It was to be assessed afresh by a new Immigration Judge. The defendant was awarded costs, subject to the claimant’s legal-aid position, and permission to appeal was refused.

High Court (Administrative Court): judicial review of the Immigration Appeal Tribunal’s decision was dismissed. The tribunal’s decision allowing the Secretary of State’s appeal and remitting the asylum claim to a new adjudicator was upheld.