JT (Cameroon) v Secretary of State for the Home Department

Under section 8 of the Asylum & Immigration (Treatment of Claimants etc) Act 2004, specified conduct must be considered when assessing an asylum claimant’s credibility. The conduct is potentially damaging; it does not inevitably cause relevant damage. Its weight is for the fact-finder and, exceptionally, it may carry no weight.

Credibility must remain a global assessment of all the evidence. Section 8 neither prescribes the method of fact-finding nor permits its matters to be placed in a separate compartment. A determination is legally flawed where there is a real risk that those matters received an autonomous or excessive status.

The appellant, a citizen of Cameroon, entered the United Kingdom using false papers and later claimed asylum. He alleged that the Cameroonian authorities had detained him because of his association with his politically active sisters and that he faced serious harm on return.

The Tribunal rejected his account after considering conduct falling within section 8 of the Asylum & Immigration (Treatment of Claimants etc) Act 2004, including his false travel document, delayed asylum claim and use of two identities. Reconsideration had previously been ordered because of an arguable error concerning medical evidence. The parties subsequently agreed that the case should be remitted, but Laws LJ directed that the appeal remain before the Court of Appeal so that the section 8 issue could be determined.

The central questions were whether section 8 infringed constitutional principles, whether it should be read down, and how section 8 conduct should feature in the overall assessment of credibility.

1. Appeal allowed and case remitted. Pill LJ held that there was a real risk that the Tribunal had given section 8 matters a separate status and compartment, instead of incorporating them into a global assessment of credibility. The case was remitted to a differently constituted Tribunal for full reconsideration and a fresh credibility assessment. Laws and Carnwath LJJ agreed.

2. Section 8 of the Asylum & Immigration (Treatment of Claimants etc) Act 2004 can be construed consistently with parliamentary sovereignty, the principle of legality and the integrity of judicial fact-finding. It is not a legislative direction governing how facts must be found. It reminds decision-makers that conduct within its categories must be considered when credibility is assessed.

3. The word “shall” in section 8(1) could not be read as “may”. Relevant conduct must be taken into account. The explanatory phrase concerning damage to credibility could, however, be understood as referring to conduct that is potentially damaging, or as requiring the conduct to be considered when assessing any damage to credibility. Laws LJ preferred reading “potentially” before “damaging”.

4. Section 8 does not require a finding that relevant conduct has caused actual or decisive damage to credibility. The extent of any damage and the weight of the conduct remain entirely matters for the fact-finder. In an unusual case, conduct within section 8 may carry no weight on the particular facts.

5. The fact-finder must assess all the evidence in the round. Section 8 matters must neither distort that exercise nor distract attention through undue concentration on minor matters. Although the Tribunal had considered other credibility evidence and had referred to the evidence in the round, its finding that section 8 had caused “very serious damage” created the material risk that the statutory matters had been treated autonomously.

1. Court of Appeal (Civil Division): The appeal was allowed and the case remitted to a differently constituted Tribunal for full reconsideration, including a fresh credibility assessment: [2008] EWCA Civ 878.

2. Asylum and Immigration Tribunal on reconsideration: The Tribunal dismissed the asylum appeal. Permission to appeal was granted because its reliance on section 8 of the Asylum & Immigration (Treatment of Claimants etc) Act 2004 was arguably excessive.

3. Earlier Tribunal proceedings: An earlier appeal was dismissed, after which reconsideration was ordered because the treatment of the medical evidence arguably involved a material error.