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

Where an error of law infects an adjudicator’s overall credibility assessment, a reconsidering tribunal may revisit the credibility case as a whole. It is impractical and artificial to isolate individual favourable findings from an assessment that has been materially undermined. There is no procedural unfairness where the evidence, cross-examination and submissions have put the appellant’s overall credibility in issue and no binding ruling has limited the scope of reconsideration. Mere membership of a banned movement does not establish a risk on return where the objective evidence indicates possible risk only for active members.

The appellant appealed against a second-stage reconsideration by the Asylum & Immigration Tribunal in which his appeals against refusal of asylum and humanitarian protection were dismissed. The first-stage reconsideration had found a material error of law in the original adjudicator’s credibility assessment and directed that all issues be reconsidered afresh, with none of the original findings standing.

The appellant contended that the second-stage Immigration Judge had been required to preserve the original finding that he was a member of the BDK, and that it was procedurally unfair to reconsider that issue. The central questions were the proper scope of reconsideration after a credibility error and whether the hearing had put the appellant’s whole account in issue.

1. Appeal dismissed. The Court of Appeal unanimously held that the Immigration Judge had made no procedural error or unfair finding.
2. The first-stage reconsideration expressly found that the original error infected the credibility assessment and directed that all issues be considered afresh. That direction was clear. The Immigration Judge had not ruled that the original finding of BDK membership was preserved. The Home Office Presenting Officer’s unclear concession concerned the application of DK (Serbia) v SSHD [2006] EWCA Civ 1747, not acceptance of the appellant’s membership.
3. The appellant’s evidence was extensively tested in examination, cross-examination and re-examination. His activities for the BDK, as well as his detentions, were challenged. His evidence became progressively less credible, and the whole of his credibility was therefore in issue. In those circumstances, it was neither unfair nor procedurally irregular for the Immigration Judge to reject the entire account.
4. The approach was consistent with DK (Serbia), because it was impractical and artificial to separate individual elements of a credibility assessment where the identified error affected the assessment as a whole. The same approach was supported by PM (Jamaica) v Secretary of State [2007] EWCA Civ 937.
5. There was also an alternative substantive basis for dismissal. Even if mere BDK membership had been accepted, TN & Ors (DRC) v SSHD [2005] UKAIT 00152 gave no support for a risk based on mere membership. It indicated only that active members might face risk. The objective evidence therefore could not establish a reasonable risk on return for this appellant on the basis of membership alone.

Order: Appeal dismissed.

• Court of Appeal (Civil Division): Appeal against the AIT’s second-stage reconsideration dismissed.
• Asylum & Immigration Tribunal: On second-stage reconsideration, the Immigration Judge rejected the appellant’s account of BDK activity, membership, detention and escape.
• Asylum & Immigration Tribunal: On first-stage reconsideration, the tribunal found a material error of law, directed that none of the adjudicator’s findings stand, and ordered reconsideration of all issues afresh. The appeal was recorded as AIT No: AS/09729/2004.
• Administrative Court: The appellant successfully challenged the earlier refusal by the IAT of permission to appeal, leading to reconsideration.