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

In an asylum appeal, an appellate tribunal may interfere with an adjudicator’s credibility findings only for a material error of law. An adjudicator is not required, on his own initiative, to address every matter in a claimant’s history, particularly a point not raised in the evidence or submissions. Failure to deal expressly with such a point is not perversity where the adjudicator addressed the matters actually raised and gave sufficient reasons overall. Judicial review for mistake of fact is narrowly confined: the fact must be established, uncontentious and objectively verifiable. A genuine evidential dispute falls outside that principle.

The appellant, a Zimbabwean national, succeeded before an adjudicator on his asylum and human-rights appeal. The Immigration Appeal Tribunal allowed the Secretary of State’s appeal, holding that the adjudicator had erred in law by failing to address internal relocation and aspects of credibility, and remitted the case for rehearing.

Stanley Burnton J dismissed the appellant’s judicial review challenge. The appeal concerned only credibility. The central issue was whether the IAT was entitled to find that the adjudicator should have addressed the appellant’s failure to claim asylum during an earlier visit to the United Kingdom, where the point had not clearly been raised before the adjudicator and an explanation had been given.

The Court of Appeal unanimously allowed the appeal on the credibility issue. The IAT’s decision was quashed insofar as it found that the adjudicator had erred in law in making positive credibility findings.

1. Under section 101 of the Nationality Immigration and Asylum Act 2002, the IAT could interfere only for a material error of law. The issue therefore was whether the adjudicator’s treatment of credibility was legally defective, not whether the IAT would have assessed the evidence differently.
2. The court upheld Stanley Burnton J’s rejection of the alleged mistake-of-fact challenge. The circumstances in which a tribunal decision may be quashed for misunderstanding or ignorance of a relevant fact are narrowly confined. The fact must be established, uncontentious and objectively verifiable. Evidence from the Presenting Officer created a genuine evidential dispute about what had occurred before the adjudicator.
3. The IAT nevertheless erred in treating the Secretary of State’s refusal letter and appeal grounds as raising the specific failure to claim asylum at Manchester. The refusal letter did not make that point, and the material before the IAT did not show that it had been relied on before the adjudicator. The issue had to be considered by reference to the particular point actually advanced.
4. Where the point had not been raised before the adjudicator, he was not required to address it on his own initiative. The appellant had also provided an explanation, which had not been shown to have been challenged. The adjudicator was entitled to focus on the matters raised before him, and his overall reasoning on credibility was adequate and not perverse.

The case remained to be remitted to the Asylum and Immigration Tribunal on internal relocation, with the adjudicator’s positive credibility findings left intact.

1. Court of Appeal (Civil Division): allowed the appeal and quashed the IAT decision insofar as it found an error of law in the adjudicator’s credibility findings: [2007] EWCA Civ 1220.
2. High Court of Justice, Queen’s Bench Division, Administrative Court: Stanley Burnton J dismissed the judicial review claim and upheld the IAT’s decision.
3. Immigration Appeal Tribunal: allowed the Secretary of State’s appeal against the adjudicator and remitted the matter for rehearing by a different adjudicator.
4. Adjudicator: accepted the appellant’s credibility and found that return would expose him to persecution and treatment contrary to his human rights.