ST (Libya) v Secretary of State for the Home Department

At the permission stage, a challenge to asylum fact-finding may be arguable where the decision-maker may have exceeded the limits imposed by law. Section 8(4) of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 requires a failure to claim asylum in a safe third country to be taken into account. It does not clearly make that failure an automatic reason to disbelieve the claimant. There may need to be a logical connection between the failure, its circumstances and the claimant’s general credibility. The court granted permission because that statutory issue, together with arguably material errors in the wider credibility assessment, warranted consideration by the full court.

The appellant claimed asylum on the basis that he faced persecution in Libya as a fundamentalist Muslim. An Immigration Judge disbelieved his account and, on reconsideration, made extensive adverse credibility findings. The judge also relied on section 8(4) of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 because the appellant had not claimed asylum in France after arriving there.

Sir Henry Brooke refused permission on the papers, considering the proposed challenge essentially a challenge to findings of fact. The appellant argued that the fact-finding had exceeded legal limits, including through irrationality, perversity, failure to consider evidence, misunderstanding of evidence and reliance on matters not put to her. The central issue was whether the section 8(4) reasoning disclosed an arguable error of law and, if so, whether the other credibility findings might also require examination.

1. Application granted. Permission to appeal was granted on the grounds at large, subject to the statutory issue and the relationship between that issue and the totality of the Immigration Judge’s findings.
2. Section 8(1) of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 requires a deciding authority to take specified behaviour into account as damaging credibility. Section 8(4) requires failure to use a reasonable opportunity to claim asylum in a safe country to be taken into account.
3. The provision changes the significance of failing to claim asylum in a safe third country. The failure may become relevant to credibility in a later claim made in the United Kingdom, rather than merely exposing the claimant to removal to the safe country under the 1990 Dublin Convention.
4. At this stage, the court considered it arguable that reliance on section 8(4) requires some logical nexus between the particular failure, its circumstances and the claimant’s general credibility. It might not be sufficient to treat the claimant as less credible solely because asylum was not claimed in a safe third country.
5. The court did not finally determine that construction. It recognised that the remaining adverse findings might independently sustain the decision, but also that an apparent error on the section 8 point could cast doubt on the reliability of the wider fact-finding if those findings were themselves arguably affected by legal error.
6. If the appellant pursued an application to adduce photographic evidence, the full court was to decide its admissibility. A properly verified explanation for not producing it earlier, with sufficient notice for the respondent to reply, would be required.

• Court of Appeal (Civil Division): On 12 January 2007, the application for permission to appeal was granted.
• Asylum and Immigration Tribunal: An Immigration Judge disbelieved the appellant’s asylum account and made an adverse determination on reconsideration (AIT No. AA/00139/2006).
• Permission stage: Sir Henry Brooke had refused permission to appeal on the papers because the proposed grounds were viewed essentially as a challenge to findings of fact.