MA (Somalia) v Secretary of State for the Home Department

In an Article 3 removal claim, an appellant’s lies do not automatically defeat the claim. The tribunal must assess their significance and weight alongside all the evidence. Where lies concern a central matter and leave the appellant’s circumstances unknown, general country evidence will overcome their negative pull only if it is sufficiently strong. The burden of proving a real risk remains on the appellant.

An appellate court must exercise restraint when reviewing a specialist tribunal for error of law. It should not convert disagreement with factual findings into legal error, infer too readily that an unmentioned matter was overlooked, or conclude without clear grounds that a correct self-direction was not applied.

MA (Somalia) v Secretary of State for the Home Department concerned a Somali national against whom the Secretary of State had made a deportation order. After a rehearing, the Asylum and Immigration Tribunal dismissed his appeal. It found that he had lied about his links and circumstances in Mogadishu and had not proved that he faced a real risk of treatment contrary to Article 3 of the European Convention on Human Rights.

The Court of Appeal allowed his appeal in [2010] EWCA Civ 426. It held that the Tribunal had failed properly to apply its correct legal direction and had overlooked evidence concerning his long absence from Somalia and lengthy detention in the United Kingdom.

The Secretary of State appealed. The central questions were how lies should affect the assessment of an international-protection claim and when an appellate court may interfere with a specialist tribunal’s factual assessment on the ground of error of law.

1. Disposition. Sir John Dyson SCJ, delivering the judgment of the Court, held that the Asylum and Immigration Tribunal had adopted the correct approach to the respondent’s lies and had made no error of law warranting appellate interference. The Secretary of State’s appeal was allowed.
2. Standard of proof. Article 3 of the European Convention on Human Rights is engaged where substantial grounds show that a person faces a real risk of torture or inhuman or degrading treatment. The Court proceeded, without deciding the point, on the parties’ assumption that the real-possibility standard also applied to past and present facts. It considered authoritative determination of that difficult issue desirable on another occasion. The Court was inclined to see no practical difference between the Article 3 test and the reasonable-degree-of-likelihood test applicable under the Refugee Convention.
3. Lies and risk assessment. An international-protection claim must not be dismissed merely because the claimant has lied. The tribunal must assess the bearing and weight of each lie together with the claimant’s remaining evidence, expert evidence and objective country material. A lie may carry little weight or may be highly significant, particularly when it concerns a central fact known primarily to the claimant. Where the relevant account is wholly incredible, general evidence will overcome the lie’s negative pull only if it is sufficiently strong. The burden of proving the required risk remains on the claimant. The Court approved and applied the majority approach in GM (Eritrea), YT (Eritrea) and MY (Eritrea) v Secretary of State for the Home Department [2008] EWCA Civ 833.
4. Application to the Tribunal’s determination. The country guidance in AM and AM (armed conflict: risk categories)(Somalia) [2008] UKAIT 00091 showed that most returnees to Mogadishu faced a real risk, but recognised exceptions for persons with protective connections. Because the respondent had lied about the central question of his connections, the Tribunal could not exclude his falling within an exception. Read fairly and with its correct self-direction, its determination meant that he had failed to discharge the burden of proof. It had not rejected his appeal simply because he lied.
5. Appellate restraint. Applying AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49, appellate courts must respect a specialist tribunal’s role as fact-finder. They should correct legal errors but must not characterise factual disagreement as legal error. Where a tribunal states the correct direction, a reviewing court should be slow to conclude that it immediately failed to apply it. Nor should omission of an express reference ordinarily support an inference that relevant evidence was ignored.
6. The Tribunal knew of the respondent’s detention and had stated that it considered the evidence in the round. Whether detention prevented him from maintaining protective connections was for the Tribunal. The Court of Appeal had impermissibly substituted its factual assessment by treating the contrary conclusion as inevitable.

1. United Kingdom Supreme Court: allowed the Secretary of State’s appeal. It held that the Tribunal’s determination contained no error of law warranting the Court of Appeal’s interference.
2. Court of Appeal: in [2010] EWCA Civ 426, allowed MA’s appeal. It held that the Tribunal had failed properly to apply its correct direction and had overlooked material evidence relevant to his connections in Mogadishu.
3. Asylum and Immigration Tribunal, second-stage reconsideration: dismissed MA’s appeal in a determination promulgated on 1 July 2009. It found that his lies prevented the necessary findings about protective connections and that he had not discharged the burden of proving an Article 3 risk.
4. Asylum and Immigration Tribunal, earlier proceedings: initially allowed the appeal on human rights grounds in April 2007. Reconsideration was ordered, followed by a fresh second-stage hearing.