TN (Zimbabwe) v Secretary of State for the Home Department

In a later asylum appeal arising from the same factual matrix as an earlier appeal, the earlier tribunal’s findings may be used as a starting point under the Devaseelan v SSHD guidelines, as approved and applied in AA (Somalia) v SSHD [2007] EWCA Civ 1040 and Ocampo [2006] EWCA Civ 1276. The later tribunal must nevertheless consider the new appellant’s evidence and make independent findings on credibility. A previous determination does not automatically dispose of a fresh appeal, especially where the later claimant was not a party to the earlier proceedings. The precise effect of earlier findings in that situation remains for a suitable case. Where the tribunal undertakes an independent assessment, no error of law arises.

This was a renewed application for permission to appeal against a second-stage reconsideration of an asylum appeal. The applicant, a Zimbabwean national, relied on alleged persecution connected with his mother’s supposed MDC membership. An earlier adjudicator had rejected the mother’s asylum claim. Immigration Judge Lane rejected the applicant’s appeal after treating that decision as a starting point; Senior Immigration Judge Taylor found no error of law and refused further reconsideration. The applicant argued that he had not been a party to, or a witness in, the mother’s proceedings and that his appeal should have been decided independently. The central issue was whether the earlier findings could be used in the later appeal and whether the judge had independently assessed the applicant’s evidence.

1. Application refused. The Court of Appeal declined permission to appeal. No error of law was shown and the application did not have a reasonable prospect of success.
2. The court applied the guidelines discussed in AA (Somalia) v SSHD [2007] EWCA Civ 1040 and Ocampo [2006] EWCA Civ 1276, reflecting the earlier guidance in Devaseelan v SSHD [2002] UKIAT 00702. Where later and earlier appeals arise from the same factual matrix, rather than merely involving overlapping evidence, the earlier findings may be treated as the starting point. The later tribunal must still consider the new evidence and reach its own findings.
3. The court recognised that a different claimant who was not a party to the earlier proceedings may raise a distinct question, particularly where the earlier decision favoured the Secretary of State. That wider issue was important but was not decided on this application; it was left for reconsideration in a suitable case.
4. Immigration Judge Lane had not decided the applicant’s appeal solely by reference to his mother’s refusal. He had heard the applicant give evidence and considered the documentary and background evidence. Although he used the mother’s determination as a starting point, he made independent credibility findings, including findings concerning inconsistencies in the account of visits by war veterans, the timing of the applicant’s departure, and the supporting documents. His conclusion was therefore not dependent on the earlier determination.
5. Senior Immigration Judge Taylor was entitled to conclude that no error of law had been disclosed. Despite the importance of the wider issue, this was not a suitable case for permission to appeal. Order: application refused.

1. Court of Appeal (Civil Division): On 24 July 2009, the renewed application for permission to appeal against the Tribunal’s second-stage reconsideration was refused: [2009] EWCA Civ 962.
2. Asylum and Immigration Tribunal: Senior Immigration Judge Taylor determined the reconsideration on 23 February 2009, found no error of law, and refused further reconsideration.
3. Immigration Judge: Immigration Judge Lane dismissed the applicant’s asylum appeal on 31 July 2008.
4. Secretary of State: The applicant’s asylum claim was refused by letter dated 24 April 2008.