SB (Algeria) v Secretary of State for the Home Department

In an asylum appeal, the absence of corroborative evidence may properly be considered where the alleged factual circumstance is objectively verifiable and it is reasonable to expect supporting material from an expert or other objective sources. A challenge to one strand of reasoning will not succeed where the decision rests on other independent and sufficient grounds. An issue not genuinely advanced before the first-instance decision-maker, and not raised in a detailed reconsideration application, will not ordinarily establish an error of law based on failure to address it.

The appellant’s asylum and humanitarian protection claim was based principally on alleged persecution in Algeria by terrorists disadvantaged by a government land-clearance programme in which she said she had participated. She also challenged the finding that adequate police protection was available, relying on MM (Article 3-Article 8-IFA) Algeria CG [2002] UKIAT 01327. The Immigration Judge rejected the account, finding that there was no such programme, or that the appellant’s role was minor, and dismissed the claim. Reconsideration was granted. Before the Court of Appeal, the appellant alleged errors concerning corroboration, police protection, and an asserted risk as a westernised woman.

Disposition. The challenge to the Immigration Judge’s determination failed. The application was refused.

1. The Immigration Judge was entitled to take account of the absence of objective confirmation of the alleged nationwide land-clearance programme. The programme was an objectively verifiable state of affairs, and the judge gave cogent reasons for expecting it to be mentioned in the expert report or other objective material. This was not an unreasonable demand for corroboration.
2. The absence of evidence confirming that the appellant’s enemies were terrorists could not, by itself, safely support the decision if it had been the sole basis for dismissal. It was, however, only one of several reasons. Each of the material reasons identified by the Immigration Judge was sufficient to support the conclusion. The challenge based on the sufficiency of police protection therefore could not affect the result. The decision in MM (Article 3-Article 8-IFA) Algeria CG [2002] UKIAT 01327 was not decisive because the police-protection finding was not critical to the determination.
3. The Immigration Judge had recorded the appellant’s account that she had suffered aggression as a westernised woman, but had not separately analysed that case. The Court of Appeal held that the point was not genuinely advanced as an independent ground before the Immigration Judge. It was absent from the detailed application for reconsideration and was not raised at the reconsideration hearing. The failure to address it therefore did not constitute a material error of law.
4. The fundamental conclusions were unassailable: the alleged land-clearance programme was not established, and, alternatively, the appellant had greatly exaggerated her involvement and failed to establish that she had been targeted. The application was refused.

1. Court of Appeal (Civil Division). In [2008] EWCA Civ 913, the Court of Appeal refused the application challenging the determination.
2. Asylum & Immigration Tribunal. The Immigration Judge dismissed the asylum and humanitarian protection claim. An application for reconsideration was subsequently granted.