MO (Algeria) v Secretary of State for the Home Department

On a tribunal reconsideration, earlier factual findings may be reopened where an identified error of law affects an account whose elements are inseparable from the assessment of risk on return. Medical evidence must be considered as part of the credibility assessment, rather than only after credibility has been decided. A tribunal may nevertheless reject an account where it has considered the medical findings and has independent, cogent reasons for doing so. A doctor’s view on the reliability of the history may assist, but it does not determine credibility. An expert opinion on risk which depends upon a rejected factual account cannot establish a real risk on return.

The appellant, an Algerian of Berber ethnicity, sought asylum after claiming that his low-level activity for the RCD had led to arrest, detention and torture, escape, and continuing interest from the Algerian authorities.

An adjudicator accepted that he had probably been detained and tortured but rejected his account of events after his escape and found no future risk. On first-stage reconsideration, the Asylum and Immigration Tribunal identified errors of law and directed a reconsideration of all factual issues. At the second stage, the Tribunal rejected the whole account, including the alleged detention and torture.

The appeal challenged the reopening of favourable findings, the treatment of medical evidence, and the Tribunal’s assessment of expert and country evidence concerning risk to Berbers on return.

1. Appeal dismissed. The three renewed applications for permission to appeal were refused and the four grounds for which permission had been granted were dismissed.
2. The Tribunal had been entitled, and was right, to direct reconsideration of all facts. The alleged detention, torture and escape, the appellant’s later conduct, and the question whether the authorities retained an interest in him formed an inseparable account. The identified errors affected the assessment of risk on return. The favourable findings could not properly be isolated from the remainder of the account. The court applied the approach in [2006] EWAC Civ 1747.
3. The Tribunal did not breach the principle in [2005] EWCA Civ 367. It considered Dr Frank’s medical report while assessing credibility. It was entitled to reject the doctor’s acceptance of the appellant’s history in light of substantial inconsistencies and implausibilities. The Tribunal had to take account of the clinical findings consistent with torture, but those findings did not determine the truthfulness of the account. Its statement that it was outside a doctor’s remit to make credibility findings was too prescriptive. A doctor may usefully comment on the consistency and reliability of the history, although the fact-finding tribunal must decide credibility for itself.
4. The Tribunal was entitled to prefer the country report to Mr Joffe’s assessment of discrimination against Berbers. Mr Joffe’s opinion on future risk depended on the alleged escape and retained official interest, which the Tribunal had rejected. Its description of the earlier expert report as not pertinent was inaccurate, but immaterial because the Tribunal had considered that report elsewhere. There was no error of law in its assessment of the country evidence or its conclusion that the appellant had not established a risk on return.

• Court of Appeal (Civil Division): Dismissed the appeal and refused the renewed applications for permission to appeal: [2007] EWCA Civ 1276.
• Asylum and Immigration Tribunal: On second-stage reconsideration in the appeal identified as AIT No. AS/19992/2004, rejected the appellant’s account of arrest, detention and torture and dismissed the asylum appeal.
• Asylum and Immigration Tribunal: At the first stage of reconsideration, identified errors of law in the adjudicator’s treatment of material evidence and directed that all factual matters be reconsidered.
• Adjudicator: Accepted that the appellant was likely to have been detained and tortured, but rejected his account of subsequent events and his claim that he faced persecution on return.