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

A tribunal assessing credibility must engage properly with corroborative documentary evidence. An official death certificate recording a date and cause consistent with the claimant’s account cannot be dismissed as carrying little weight without substantial reasons. An immigration officer’s summary of an initial asylum conversation is not necessarily the claimant’s statement, particularly where detailed disclosure was not expected and the claimant had not previously seen the document. A credibility decision cannot stand where it depends critically on such a document, especially when part of the assessment proceeds on an erroneous reading. Where the appellate court cannot determine the asylum claim itself, the appropriate course is a fresh hearing before the specialist tribunal.

The appellant, a Zimbabwean citizen, appealed against the Asylum and Immigration Tribunal’s reconsideration decision of 6 December 2008, which dismissed her asylum and human rights claims. The tribunal admitted fresh evidence, including an ASU call note prepared during the appellant’s initial asylum contact and her sister’s death certificate. It rejected the appellant’s account as substantially untrue and later considered the country guidance decision in RN (Returnees) Zimbabwe CG [2008] UKAIT 00083.

The appeal concerned whether the tribunal had lawfully assessed the call note and death certificate, and whether its resulting credibility findings could stand.

1. Appeal allowed. The tribunal’s credibility assessment was flawed and its decision could not stand. The Court of Appeal had no basis to determine that the appellant was entitled to asylum or to remain in the United Kingdom on human rights grounds.
2. The sister’s death certificate recorded death on 18 April 2007 from internal bleeding. That official document was consistent with the appellant’s account as given in her statement and interview. The Immigration Judge was not entitled to treat it as carrying little weight, or to conclude without more substantial reasons that the appellant had not substantiated the date or cause of death.
3. The ASU call note was an immigration officer’s summary of a conversation, not the appellant’s statement. The appellant was not expected to give detailed asylum evidence when it was prepared. The note had not been relied on in the Secretary of State’s refusal letter, the appellant first saw it at the hearing, and its author was not called as a witness. The Immigration Judge therefore placed unjustifiable weight on it, particularly when assessing the appellant’s answers in cross-examination.
4. Part of the cross-examination and reasoning proceeded on the false assumption that the note recorded 16 April 2007 rather than 16 March 2007. That error was especially material because the call note was central to the credibility finding.
5. The first ground, concerning admission of fresh evidence, was not pursued. The Court observed that the tribunal was entitled to admit the fresh evidence, but had to bear in mind the appellant’s lack of prior access to the call note and the absence of its author as a witness. The matter was remitted to the Upper Tribunal for a fresh hearing before a different Immigration Judge.

• Court of Appeal (Civil Division): in [2010] EWCA Civ 576, allowed the appeal and remitted the matter to the Upper Tribunal for redetermination by a different Immigration Judge.
• Asylum and Immigration Tribunal: following a reconsideration hearing on 17 November 2008, Immigration Judge Kelly dismissed the appellant’s asylum and human rights appeal in a decision dated 6 December 2008.
• Secretary of State for the Home Department: on 16 April 2008, rejected the asylum and human rights claims because the appellant’s account was considered inconsistent and not credible.