AS (Pakistan) v Secretary of State for the Home Department

An asylum tribunal must approach an adjournment application by asking whether the appeal can otherwise be justly determined under the Asylum and Immigration Tribunal (Procedure Rules) 2005, rule 21. Where fresh evidence seriously damages credibility, refusal is unfair if relevant, potentially credible supporting witnesses could materially assist the explanation, and the appellant’s own evidence is not an adequate substitute. A tribunal must assess the reasons actually given, including any explanation for delay. The decision is fact-specific and does not restrict the proper exercise of the adjournment power.

AS, a Pakistani citizen, appealed against refusal of asylum based on serious domestic violence and lack of state protection. An Immigration Judge allowed her asylum and human-rights appeal on positive credibility findings. On reconsideration, the AIT admitted evidence showing that she had previously concealed visits to the United Kingdom and ordered a further hearing. At that hearing, the AIT refused an adjournment sought to call family witnesses who could corroborate her explanation. It then rejected her credibility and dismissed the claims. The central issue before the Court of Appeal was whether the appeal could fairly be determined without allowing the adjournment and proposed evidence.

The appeal was allowed and the matter was remitted for a second-stage reconsideration before a differently constituted tribunal. Maurice Kay LJ gave the principal reasons. Lawrence Collins LJ and Sedley LJ agreed.

1. Rule 21 of the Asylum and Immigration Tribunal (Procedure Rules) 2005 requires the tribunal to consider whether the appeal can otherwise be justly determined. Where further time is sought to produce evidence, the evidence must relate to a matter in dispute, it must be unjust to proceed without the opportunity to produce it, and any failure to comply with directions must be satisfactorily explained.
2. The fresh evidence went to the heart of the appeal because it seriously damaged AS’s credibility. Her supplementary statement gave an explanation for the earlier untruths and for her return to Pakistan. The proposed evidence from her brother and sister-in-law could materially corroborate that explanation. It was not inherently incredible and could greatly assist her case.
3. The AIT’s first reason for refusing an adjournment overlooked both the supplementary statement and the tribunal’s power under rule 50 to compel witness attendance. Its second reason, that AS could describe the conversations herself, was unsustainable. Her previous false account made independent supporting evidence particularly important.
4. The Secretary of State’s alternative reliance on the passage of more than two months was rejected. That was not a reason given by the AIT, and the family rift and recent difficult childbirth provided an explanation for the delay. The refusal was therefore procedurally unfair in the circumstances.
5. The decision was confined to the specific facts and reasons given by the AIT. It was not intended to discourage the proper exercise of the adjournment power in other cases.

The court did not decide the separate issue concerning the scope of second-stage reconsideration of credibility matters. It indicated, obiter, that DK [Serbia] and Ors v Secretary of State for the Home Department [2006] EWCA Civ 1747 expressly allowed for exceptions and that treating this case as exceptional would be difficult to challenge.

1. Court of Appeal (Civil Division) — allowed the appeal and remitted the matter for a second-stage reconsideration before a differently constituted tribunal: [2007] EWCA Civ 703.
2. Asylum and Immigration Tribunal — an Immigration Judge initially allowed the asylum and human-rights appeal. On reconsideration, the AIT found legal error, admitted fresh credibility evidence at the adjourned hearing, dismissed the claims, and substituted its own decision.