NT (Togo) v Secretary of State for the Home Department

Permission to appeal may be granted where an asylum tribunal arguably gives legally inadequate reasons for rejecting an account, or arguably treats unavoidable use of a false passport as adverse under section 8 without addressing its necessity. Fact-finding does not permit reliance on speculative or factitious reasoning. Failure to claim asylum in another country may be material where there is no good explanation. The case was distinguished from Mibanga, because the medical and corroborative evidence had not been rejected separately after the account had already been disbelieved.

The appellant sought permission to appeal an Asylum and Immigration Tribunal decision concerning her asylum claim, identified as [AIT No: AA/06684/2006]. The Tribunal rejected her account of violence at a student demonstration and took into account, under section 8 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, both her failure to claim asylum in France and her use of a false French passport on arrival in the United Kingdom.

Permission had previously been refused by Sir Henry Brooke. On renewal, the central issues were whether section 8 had been applied lawfully and whether the Tribunal’s reasoning had gone beyond proper fact-finding so as to raise a fair-hearing question.

1. Application granted. The proposed grounds had more than a fanciful chance of success and merited consideration by the Court of Appeal.
2. The immigration judge had treated the appellant’s failure to claim asylum in France and her use of a false French passport as relevant to credibility under section 8 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004. Lord Justice Sedley considered it arguable that, where use of a false passport was ineluctable if the appellant’s account were true, the statute might require no more than token weight to be given to that fact. The issue raised a serious question about the relationship between statutory credibility requirements and the independence of judicial fact-finding.
3. The Tribunal’s reasoning about the principal incident arguably relied on unexplained assumptions about the appellant’s role, the authorities’ conduct and the circumstances of her escape. It arguably moved beyond fact-finding towards factitious reasons for rejecting the account. If that reasoning were removed, the remaining findings might not sustain the decision, giving rise to an arguable fair-hearing issue.
4. The case was not a Mibanga case. The immigration judge had considered the medical and other corroborative material in assessing the account, rather than rejecting the account first and then rejecting that material separately as immaterial.
5. Lord Justice Maurice Kay agreed that the matter should proceed on the basis indicated by Lord Justice Sedley. The formal order was: application granted.

• Court of Appeal (Civil Division): On a renewed application for permission to appeal from the Asylum and Immigration Tribunal, permission was granted on the section 8 and reasoning/fair-hearing issues identified by Lord Justice Sedley.
• Asylum and Immigration Tribunal: The decision under challenge was identified as [AIT No: AA/06684/2006]. This judgment did not finally determine the substantive appeal.