IO (Somalia) v Secretary of State for the Home Department

An error of law must be material to the outcome before it can support an appeal from an immigration determination. A credibility assessment should be read as a whole. An arguable error in treating a short delay in claiming asylum as damaging under section 8(2) of the 2004 Act was immaterial where independent, powerful reasons supported the adverse findings. A lost case file did not undermine the remaining inconsistencies. A statement that a fact was reasonable to assume could express a finding of likelihood, rather than a reversal of the burden or standard of proof. Permission to appeal was therefore refused.

The principal applicant, a Somali citizen, claimed asylum on the basis that he belonged to the minority Hintire clan and would face persecution on return. The claim of his relatives depended on his claim. Immigration Judge Graham accepted that he was of Bantu origin but rejected his claimed clan membership and account of past persecution, relying on altered evidence and material inconsistencies. She also took his two-day delay in claiming asylum into account under section 8 of the 2004 Act.

On reconsideration, Senior Immigration Judge McGeachy found no material error of law and dismissed the appeal. A renewed application for permission to appeal raised the section 8 issue, the loss of the Home Office file containing the SEF, and an alleged reversal of the burden of proof. The central question was whether any of those matters amounted to a material error.

Application refused. Lord Justice Keene held that none of the proposed grounds had a real prospect of succeeding before a full court.

1. Materiality. An error of law must be material to the result before it can justify appellate intervention. An error which could not have affected the outcome is insufficient.
2. Section 8 and credibility. Section 8 of the 2004 Act required the immigration judge to take account, as damaging to credibility, of behaviour falling within section 8(2), including behaviour designed or likely to obstruct or delay the handling or resolution of the claim. It was arguable that a two-day delay did not satisfy that wording, particularly in view of Home Office delays. However, the determination had to be read as a whole and credibility assessed in the round. The judge’s finding that the applicant had materially altered his evidence to fit the expert report was a powerful independent reason for rejecting his claimed clan membership. The further inconsistencies independently supported rejection of the account of persecution. Any error concerning section 8 was therefore immaterial.
3. Lost SEF file. The loss of the file might have affected one alleged inconsistency, but other material inconsistencies remained, including the account of the date of the applicant’s mother’s paralysis. The loss did not make the overall decision unsafe.
4. Burden of proof. The phrase reasonable to assume, used in relation to the property, expressed a factual finding about what was likely. It did not show that the judge had misapplied the burden or standard of proof. The point was in any event additional, since the property’s lack of a roof, windows and door meant that it could scarcely be regarded as habitable.

The references to Articles 3 and 8 did not affect the decision. The formal order was: application refused.

• Court of Appeal (Civil Division): Permission had been refused on the papers by Buxton LJ. Lord Justice Keene refused the renewed application on 6 December 2007.
• Asylum and Immigration Tribunal: On reconsideration promulgated on 3 May 2007, Senior Immigration Judge McGeachy found no material error of law in the earlier determination and dismissed the appeal.
• Asylum and Immigration Tribunal: Immigration Judge Graham’s decision of 21 February 2006 rejected the applicant’s claimed Hintire clan membership and account of past persecution, while accepting his Bantu origin.