SL (Zimbabwe) v Secretary of State for the Home Department

An appellate court considering permission to appeal from an immigration tribunal must investigate possible errors of law. It must not re-assess evidence or substitute its own credibility assessment. A tribunal may proceed in a party’s absence where hearing notice was correctly served under the applicable procedural rules, even if the party moved without notifying it. Credibility findings based on a dishonest visa application, delay in claiming asylum and identified evidential discrepancies are not legally flawed merely because the claimant disputes their evaluation. An extension of time may be refused where the proposed appeal has no real prospect of success and the explanation for delay is weak.

The applicant, a Zimbabwean national, entered the United Kingdom with a student visa and later claimed asylum. The Secretary of State rejected the claim, and Immigration Judge Khan dismissed the appeal after finding that the applicant lacked credibility.

A senior immigration judge ordered reconsideration of an allegation of bias. Two senior immigration judges reconsidered the matter in the applicant’s absence and rejected the allegation. The applicant renewed his application for permission to appeal, challenging the tribunal’s decision to proceed in his absence, its credibility findings and the refusal to extend time. The central issues were whether there was an arguable error of law and whether the delay should be excused.

The renewed application for permission to appeal and the application for an extension of time were refused.

1. Extension of time. The application for permission was more than three months late. The explanation, including difficulties obtaining legal representation, was inadequate. The court stated that it would have extended time despite the earlier delay if the proposed appeal had a real prospect of success. It found no such prospect.
2. Proceeding in the applicant’s absence. Notice of the hearing had been sent to the address supplied to the tribunal. The applicant had moved without informing the tribunal. Applying paragraph 56 of the AIT Procedure Rules 2005, the tribunal was entitled to proceed in his absence. No arguable error of law arose.
3. Credibility findings. The immigration judge was entitled to rely on the dishonest student-visa application, the delay in claiming asylum and discrepancies between the applicant’s earlier account and his later evidence. Under section 8 of the 2002 Act, the delay seriously damaged credibility and, absent persuasion to the contrary, the judge was required to make that finding.
4. Scope of appellate review. The court’s task was to investigate possible legal error by the tribunal, not to assess the evidence or decide credibility afresh. The reasoned decision was not legally flawed, and any appeal would be bound to fail.

Order: Application refused.

• Court of Appeal (Civil Division): Keane LJ had refused permission on the papers. On renewal, the court refused an extension of time and refused permission to appeal.
• Asylum and Immigration Tribunal: Immigration Judge Khan dismissed the asylum appeal on credibility grounds. On reconsideration, two senior immigration judges rejected the allegation of bias after proceeding in the applicant’s absence.