MS (DRC) v Secretary of State for the Home Department

On an appellate challenge to credibility findings in an asylum case, disagreement with the fact-finder’s view of plausibility is not itself an error of law. The court must assess the determination as a whole and may uphold it where, despite defective reasoning, there is a respectable, properly expressed basis for the conclusion. A tribunal must avoid testing events in an unfamiliar country against its own domestic experience. It may nevertheless rely on material inconsistencies, implausibility arising from the claimant’s own account, and the limits of medical evidence. Evidence that injuries are consistent with an account does not establish that the account is true. A failed asylum seeker has no risk on return merely from that status unless the underlying facts establish a relevant risk, including a possible Article 3 breach where detention and imprisonment risk are made out.

The appellant claimed refugee status based on alleged arrest during an MLC meeting, detention, torture, forced military service, desertion, further detention, rape and escape from the Democratic Republic of Congo. An initial Asylum and Immigration Tribunal determination dated 23 May 2005 was reconsidered after concerns that medical evidence had not been properly considered. Following a de novo hearing on 18 December 2006, Immigration Judge Turquet rejected the account. The Court of Appeal considered whether defects in the judge’s plausibility reasoning, treatment of expert medical evidence and assessment of inconsistencies amounted to an error of law, and whether the accepted facts established a risk on return.

1. Appeal dismissed. Lawrence Collins LJ agreed. Holman J also agreed with Moses LJ’s reasoning, while recording considerable anxiety about the Immigration Judge’s approach.
2. The appellate court must distinguish disagreement about factual plausibility from an error of law. The determination must be read as a whole. Criticisms of particular reasoning do not infect the result where there remains a respectable basis, properly expressed, for rejecting the account.
3. A fact-finder must be cautious before using personal experience in the United Kingdom to assess the inherent plausibility of events in an unfamiliar country. That caution does not prevent reliance on circumstances arising from the claimant’s own account, objective evidence, or material inconsistencies. The Immigration Judge’s reasoning about the family raid and the use of a suspected MLC sympathiser against rebels was criticised, including the incorrect statement that Dr Kennes had given no explanation. Those defects did not invalidate the determination as a whole.
4. The Immigration Judge was entitled to rely on the discrepancy between an account of six months’ military training and Dr Frank’s account suggesting training for only days. She was also entitled to consider the account of the commander discovering the appellant’s alleged MLC links only after his desertion, and the implausibility of a soldier assisting an escaped detainee for two and a half hours. The medical evidence that injuries were consistent with beatings did not compel acceptance of the account, although it had to be taken into account. The reasoning dismissing the alleged rape was too brief, but did not amount to an error of law.
5. The authorities AB and DM CG [2005] UKAIT 00118 and BK (DRC) v SSHD [2008] EWCA Civ 1322 did not establish a risk on return merely from being a failed asylum seeker. Without findings accepting the alleged detention, arrest or desertion, there was no basis for such a risk. If the appellant were believed to be a deserter who had been detained in prison and faced a real risk of imprisonment on return, the correct conclusion would be a risk of breach of Article 3. The appeal was dismissed.

• Court of Appeal (Civil Division): Appeal against the reconsideration decision dismissed.
• Asylum and Immigration Tribunal: Following an initial determination dated 23 May 2005 and reconsideration proceedings, Immigration Judge Turquet heard the matter de novo on 18 December 2006 and rejected the appellant’s account. AIT No: HX/00528/2005.