MJ (Iran) v Secretary of State for the Home Department

In asylum appeals, a determination in a related person’s case cannot be used as factual evidence to undermine the present claimant unless the material is properly introduced and tested. A tribunal may, however, cross-examine a witness about evidence given in another case, including a sibling’s case, where the issue is relevant to credibility, the proposed use is clear, and the witness has an opportunity to answer. An appeal may be dismissed despite an erroneous and inadmissible passage if the appellate court is entirely confident that the determination remains sustainable and is visibly free from taint. A rehearing of the factual issues permits the rehearing tribunal to make its own findings where that course was agreed.

The appellant, an Iranian national, appealed against the dismissal of his asylum claim. Immigration Judge Norris rejected his account, although the scope of his findings about an alleged arrest later became disputed. On reconsideration, the parties agreed that Immigration Judge Holmes should rehear the case at large. She again rejected the appellant’s evidence and relied, in part, on omissions in his brother Z’s separate asylum determination.

The appeal raised two central questions: whether the rehearing tribunal was bound by alleged favourable findings in the first determination, and whether the brother’s determination could lawfully be used to assess the appellant’s credibility without putting the material to him.

1. Appeal dismissed. The first determination contained no relevant favourable finding. The statement that the appellant might have been arrested was, read in context, a provisional assumption expressed in the alternative, followed by rejection of the account. Once the parties agreed to a full rehearing, Immigration Judge Holmes was entitled to make her own findings on the factual issues.
2. Where it is argued that a reconsideration tribunal cannot go behind an earlier finding of fact, the alleged finding must first be clearly established from the whole determination. This was especially important in light of DK (Serbia) v SSHD [2006] EWCA Civ 1747. The point was academic here because the parties had agreed to start again.
3. The use of the brother’s determination was unlawful. In principle, one asylum determination creates no factual res judicata or issue estoppel in another person’s appeal. Otshudi v SSHD [2004] EWCA Civ 893 established that a discrepant determination in a sibling’s case is not, without more, material to the legal soundness of the present decision. The same principle applied where the earlier claim had failed and was being used against the later claimant.
4. Material from another hearing may instead be used to explore credibility, including by cross-examining a witness about inconsistency with evidence given in a sibling’s or spouse’s case. The proposed use must be clear, and the witness must have the matter put in cross-examination. The tribunal cannot rely on such material of its own motion to raise doubts about credibility without giving the witness that opportunity.
5. The offending paragraphs could be severed. The court was satisfied that the remaining determination stood on its own and was visibly not infected by the inadmissible material. That was sufficient to sustain the decision and dismiss the appeal.

• Court of Appeal (Civil Division): Appeal from the Asylum & Immigration Tribunal dismissed. The tribunal’s determination was upheld despite the unlawful reliance on the brother’s separate determination.