MB v The Secretary of State for the Home Department

An unrecorded asylum interview is not thereby inadmissible. R (Dirshe) v Secretary of State for the Home Department did not create an individual right to tape-recording, nor did it govern the admissibility of an interview record.

The criminal-law analogy in Cadder v Her Majesty’s Advocate does not apply to immigration proceedings. A tribunal has no general power under rule 51(1) to exclude relevant and otherwise admissible evidence because of procedural defects in its acquisition. Subject to unfairness caused by late tender, such defects ordinarily affect the weight of evidence, rather than its admissibility.

The appellant, an Iranian national, appealed against a First-tier Tribunal decision dismissing his renewed asylum and protection appeal. His original asylum appeal had been dismissed after the tribunal admitted the written record of his substantive interview, although his solicitors had requested tape-recording.

Following further representations and a fresh refusal, the appellant contended that the interview record should not have been received because it was not tape-recorded and because he had been unwell during the interview. He also alleged that the First-tier Tribunal wrongly treated the procedural issue as his only remaining ground of appeal.

The central issues were whether the interview record was inadmissible or incapable of carrying weight, and whether the First-tier Tribunal had made a material error of law.

1. Appeal dismissed. The First-tier Tribunal had made no material error of law.

2. R (Dirshe) v Secretary of State for the Home Department, [2005] EWCA Civ 421, held a blanket refusal to permit tape-recording unlawful where an unrepresented claimant lacked an independent note-taker. It did not confer a right to tape-recording in every case and said nothing about the admissibility of an unrecorded asylum interview. The appellant had in any event indicated at the interview that he did not mind whether it was recorded.

3. Cadder v Her Majesty’s Advocate, [2010] UKSC 43, concerned criminal proceedings. Immigration proceedings are distinct. There is no general civil-law discretion to exclude relevant evidence because it was unfairly obtained, and the criminal-law analogy was misconceived. Asylum appeals do not determine a civil right or obligation for Article 6 purposes, and no Article 8 basis arose on the facts.

4. Rule 51(1) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 permits the admission of relevant material that would otherwise be inadmissible. It does not create a converse power to reject relevant, otherwise admissible evidence because of alleged procedural defects in obtaining or recording it. Save where late evidence would make admission unfair, fairness ordinarily concerns the weight to be given to evidence.

5. The absence of a prompt complaint that the written interview record was inaccurate, together with the earlier tribunal’s reasoned credibility findings, entitled the judges to attach weight to the interview discrepancies. An unreasonable refusal of tape-recording may in another case justify giving an interview no weight or finding that the immigration decision was not taken in accordance with the law. No such challenge was established here.

6. The First-tier Tribunal was entitled to treat the earlier credibility findings as the starting point. The later evidence corrected the date of the factory protests, but the earlier judge had made an alternative credibility finding unaffected by that date. No remaining protection or independent human-rights ground justified allowing the appeal.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeal, finding no error of law in the First-tier Tribunal’s decision.

• First-tier Tribunal (Immigration and Asylum Chamber): Immigration Judge Forbes rejected the challenge to receipt of the asylum interview record and dismissed the protection appeal.

• Asylum and Immigration Tribunal: Immigration Judge Hamilton dismissed the original asylum appeal in November 2008 after admitting the interview record and making adverse credibility findings.

• Court of Session, Outer House: on judicial review and by consent, the Lord Ordinary reduced the Secretary of State’s refusal of further representations and remitted the matter for fresh consideration.