AA (Somalia) v SSHD

Where separate asylum or human-rights claims arise from the same factual matrix and involve a material overlap of evidence, the Devaseelan guidance is relevant. An earlier determination is not technically binding, but it should ordinarily be treated as a significant starting point and followed unless there is good reason to revisit it. The guidance must be applied flexibly, consistently with each tribunal’s duty to decide the appeal before it on its merits.

The principle is confined to closely connected claims, not any mere overlap of evidence. A different claimant’s lack of party status may make it easier to establish a good reason to revisit an earlier finding.

The court heard two appeals concerning the effect of factual findings made in an earlier asylum or human-rights appeal involving a related person.

In AA’s appeal, his sister had previously been recognised as a refugee. AA contended that a later adjudicator was bound by the earlier finding that she belonged to the Ashraf clan. The Asylum and Immigration Tribunal rejected that argument in [2006] UKAIT 00052.

In AH’s appeal, an earlier adjudicator had accepted findings concerning AH’s relationship with a successful asylum claimant. A later Tribunal held that the adjudicator had erred by treating those findings as binding, reconsidered the evidence, and dismissed AH’s appeal.

The common issue was the extent to which the Devaseelan guidance applies where the applicants differ but the factual circumstances are closely related.

1. Disposition. The court unanimously dismissed AA’s appeal. By a majority of Carnwath and Ward LJJ, it allowed AH’s appeal and restored the adjudicator’s decision allowing AH’s asylum and human-rights appeal. Hooper LJ would have dismissed AH’s appeal.
2. The governing approach. Carnwath LJ held that Devaseelan does not create a technical estoppel. Nevertheless, as confirmed in Ocampo v SSHD [2006] EWCA 1276, its guidance extends to distinct applicants where their claims arise from the same factual matrix and there is a material overlap of evidence. The guidance supplies consistency and finality, while preserving the tribunal’s duty to decide the later appeal fairly and on its merits.
3. Qualifications. The extension does not apply to a mere overlap of evidence. The claims must be closely connected by the same relationship, event, or series of events. Further, a tribunal may more readily find good reason to revisit an earlier decision when the later claimant was not a party to the first proceedings, even if the claimant was a witness.
4. AA. The earlier determination in the sister’s case was not put before the adjudicator, and AA’s represented case did not seek to rely on it. The adjudicator therefore made no error of law by deciding AA’s appeal on the evidence before him.
5. AH. The earlier adjudicator had relied on the prior determination in a case arising from the same relationship and factual matrix. In the absence of compelling new evidence, that approach was consistent with the applicable guidance. The Tribunal wrongly treated the restrictive approach in SK as governing and wrongly ordered reconsideration.

• Court of Appeal (Civil Division): AA’s appeal was dismissed. AH’s appeal was allowed by majority and the adjudicator’s decision was restored.
• Asylum and Immigration Tribunal: In AA’s case, the Tribunal rejected the argument that the sister’s determination bound the adjudicator: [2006] UKAIT 00052. In AH’s case, the Tribunal found an error of law in the adjudicator’s use of the earlier determination, reconsidered the appeal, and dismissed it.
• Adjudicators: AA’s appeal against refusal of asylum was dismissed. AH’s appeal was allowed after the adjudicator treated findings in a related claimant’s appeal as determinative in the absence of compelling new evidence.