TK (Burundi) v Secretary of State for the Home Department

When evidence supporting a party’s account is readily available, a judge may take account of its absence and any explanation offered. The omission may carry considerable weight in assessing credibility, particularly where other reasons for doubt exist. A judge commits no error of law by rejecting an account where supporting evidence should have been produced and no credible explanation is given.

In determining whether removal is proportionate under Article 8, the tribunal may assess the true strength of the asserted family life by applying those credibility principles. Express reference to Strasbourg decisions is unnecessary where the tribunal applies the Article 8 approach elucidated by binding domestic authority and no relevant Strasbourg authority has been identified.

The appellant, a Burundian national whose asylum account had been disbelieved, relied on his employment, delay in resolving his immigration position and asserted relationships with two daughters and their mothers. An adjudicator dismissed the asylum claim but allowed the Article 8 claim. On reconsideration, the Asylum and Immigration Tribunal found an error concerning the weight given to delay and directed a second-stage reconsideration.

Immigration Judge Scobie accepted that the appellant had private and family life in the United Kingdom but found that the relationships were weaker than claimed. Neither mother gave evidence or supplied a statement, and there was no satisfactory documentary evidence of financial support. Applying Razgar [2004] UKHL 27 and Huang [2007] UKHL 11, the judge held that removal was proportionate.

The central issues were whether reliance on the absence of independent supporting evidence disclosed an error of law and whether the judge had failed to apply the relevant Article 8 jurisprudence.

1. Appeal dismissed unanimously. Thomas LJ delivered the judgment, with which Moore-Bick and Waller LJJ agreed.

2. Where evidence supporting a party’s account is, or should be, readily available, a judge may consider both its absence and the explanation for that absence. The omission may carry considerable weight where the party’s credibility is already doubtful. An immigration judge should approach an unsupported account cautiously when independent evidence from persons within the jurisdiction could readily have been provided.

3. The Immigration Judge was entitled to reject the appellant’s explanations. His former partner had not supplied even a statement, and there was no reliable evidence of the asserted maintenance payments. His explanation that nobody had advised him to obtain evidence from his current partner was unsustainable given his experienced legal representation. The judge therefore committed no error of law in finding that the claimed family life was not as strong as alleged and that removal was proportionate under Article 8 of the European Convention on Human Rights.

4. The further evidence before the Court of Appeal confirmed the importance of the missing evidence. The appellant had known that his current partner’s asylum appeal had been exhausted, yet had presented her application as still being within the system. The proper inference was that she had not been called because her evidence would have exposed the true immigration position and undermined that part of the Article 8 claim. The appellant ultimately accepted that he could no longer rely on that relationship or the second child.

5. The Immigration Judge had applied the five-question framework in Razgar [2004] UKHL 27 and the proportionality approach in Huang [2007] UKHL 11. He had the Strasbourg jurisprudence, as elucidated by the House of Lords, firmly in mind. The Strasbourg decision cited on appeal was irrelevant to the issues. The second ground merely restated the unsuccessful challenge to the judge’s Article 8 assessment.

1. Court of Appeal (Civil Division): The appellant’s appeal from the Asylum and Immigration Tribunal was dismissed unanimously: [2009] EWCA Civ 40.
2. Asylum and Immigration Tribunal: Immigration Judge Scobie dismissed the Article 8 appeal following a second-stage reconsideration. The Tribunal refused permission to appeal.
3. Asylum and Immigration Tribunal reconsideration: The Tribunal had found that the adjudicator materially erred in the weight attributed to delay and directed reconsideration limited to Article 8.
4. Immigration adjudicator: The adjudicator dismissed the asylum claim for want of credibility but allowed the Article 8 claim because removal was considered disproportionate.