BK ( Democratic Republic of Congo) v Secretary of State for the Home Department

An appellate court reviewing a specialist asylum tribunal must respect its primary findings of fact. A disagreement with the tribunal’s assessment of evidence, or a belief that another factual conclusion was preferable, does not establish an error of law. Intervention is justified only where the tribunal clearly misdirected itself in law.

Evidence from failed asylum-seekers is not automatically worthless, but its reliability requires careful scrutiny. In a country-guidance case, a witness who was previously accepted as credible may give wider evidence for a different purpose; the tribunal must evaluate that evidence according to ordinary principles. The tribunal need not decide a hypothetical question about whether returnees would have to lie if its factual findings show that truthful answers would ordinarily avoid any relevant risk.

The appeal arose from a 547-paragraph country-guidance determination of the Asylum and Immigration Tribunal concerning involuntary returns of failed asylum-seekers to the Democratic Republic of Congo. The Tribunal considered whether returnees faced a real risk of persecution for a Convention reason, serious harm, or treatment contrary to Article 3 of the ECHR merely because they had claimed asylum abroad.

It found that low-profile returnees would normally be questioned at N’Djili airport, but would usually be released if the questioning disclosed no matter of interest. It rejected the appellant’s individual account and the broader evidence that failed asylum-seekers as such faced a relevant risk. The central issue was whether the Tribunal had made an error of law by misappraising credibility evidence, applying the guidance in IK, going behind earlier credibility findings concerning W1, or failing to accept expert evidence.

1. Appeal dismissed. The Tribunal’s conclusions were findings of primary fact reached after an extensive hearing and analysis of the evidence. The 23 grounds of appeal largely alleged that the facts should have been decided differently. That did not disclose an error of law.
2. A failed asylum-seeker’s previous refusal on credibility grounds is relevant evidence, but cannot automatically determine the reliability of later evidence. The Tribunal gave detailed, independent reasons for rejecting W2 and W3. Its treatment of hearsay accounts was also lawful. Such evidence was properly regarded as particularly problematic where the methodology did not adequately examine the credibility history of the persons supplying the accounts.
3. The Tribunal was not required to decide whether every returnee would have to lie to avoid persecution. Its findings were that low-profile returnees would ordinarily be released after questioning, sometimes following payment of a small sum, and that truthful answers could suffice. There was no evidence that questioning itself led to Article 3 ill-treatment or persecution.
4. Earlier credibility findings in another asylum case did not prevent the Tribunal, in a country-guidance case, from evaluating wider evidence given by the same witness for the first time for that purpose. The principle in Ocampo [2006] EWCA Civ 1276 and AA Somalia [2007] EWCA Civ 1276 applies where the evidence concerns the same matter, subject to additional evidence or other particular circumstances. It did not preclude the Tribunal’s approach to W1.
5. The Tribunal was entitled to reach a different assessment of bribery evidence from that reached in AB and DM [2005] UKAIT 00118, because further evidence had been adduced and the Tribunal considered the evidence before it as a whole.
6. The caution required when reviewing specialist tribunals, emphasised in AH (Sudan) [2008] 1 AC 678, meant that the Tribunal’s factual decision should be respected unless a clear legal misdirection was shown. No such misdirection appeared. The determination was upheld.

• Court of Appeal (Civil Division): dismissed the appeal from the Asylum and Immigration Tribunal’s amended country-guidance determination dated 31 October 2008.
• Asylum and Immigration Tribunal: dismissed the appellant’s asylum and Article 3 appeal after finding no real risk to low-profile failed asylum-seekers returned to the Democratic Republic of Congo merely because of their failed claims, and rejecting the appellant’s individual evidence.