AW (Jamaica) v Entry Clearance Officer, Jamaica

In an immigration appeal, a tribunal may refuse an adjournment to secure the asylum interviewer’s attendance and may rely on legible parts of the interview record, provided it fairly considers challenges to accuracy and completeness. A tribunal need not refer expressly to every item of evidence where its reasoning shows that the evidence was considered overall. Medical evidence must be assessed as part of the overall credibility assessment. Before relying adversely on dishonesty, a tribunal must consider any plausible alternative explanation. A high threshold applies to irrationality challenges, and an arguable criticism is insufficient where the second-appeal criteria are not met.

The applicant, a Jamaican national, appealed against a determination of Deputy Upper Tribunal Judge Woodcraft following a de novo hearing. The Upper Tribunal dismissed his asylum, humanitarian protection and human rights appeals. He claimed risk from state actors because he had witnessed extrajudicial killings and from an organised criminal gang as a perceived informant after his early release from arrest.

He challenged the treatment of the asylum interview record, supporting and background evidence, medical evidence concerning PTSD, and his use of a false British passport. A challenge concerning sufficiency of protection was conditional, and the Article 8 ground was not pursued. The central issue was whether the Upper Tribunal had arguably erred in law and whether the second-appeal criteria were satisfied.

Renewed application for permission to appeal refused. Lord Justice Richards held that the grounds had no real prospect of establishing an error of law and, in any event, did not satisfy the second-appeal criteria.

1. Interview record. It was within the judge’s discretion to refuse an adjournment for the interviewing officer to attend. The judge could nevertheless rely on the legible parts of the record, provided that the applicant’s challenges to its accuracy and completeness were taken into account. The judge had done so, and the approach was rational and fair [4]-[6].
2. Evidence and credibility. A tribunal need not address every item of evidence expressly. The Upper Tribunal’s reasoning sufficiently showed that it had considered the witness statements and background material. The complaints otherwise amounted to a challenge to the merits of the credibility findings. Any disguised irrationality challenge faced a high threshold and had no real prospect of success [7]-[10].
3. Medical evidence. The Upper Tribunal had considered the medical evidence, accepted that the applicant had psychological difficulties, but was entitled to find that this did not itself confirm his account. The suggested compartmentalised approach criticised in Mibanga [2005] EWCA Civ. 367 was unsustainable because the medical evidence had been considered as part of the overall credibility assessment [11]-[13].
4. Dishonesty. The judge had explained why the applicant’s account of using a false passport was implausible and had considered the actual alternative explanation advanced. There was therefore no failure to avoid the error identified in Lucas. The additional contention, drawn from the discussion of MA (Somalia) [2010] UKSC 49, that Lucas applied only where an alternative explanation existed rather than in cases of serial dishonesty, did not strictly arise [14]-[17].
5. The sufficiency-of-protection ground did not arise once the rejection of the claimed fear of persecution was upheld. The Article 8 ground was not pursued. Even allowing for the de novo hearing and the consequences if the applicant’s fear were well founded, the second-appeal criteria were not met [18]-[20]. The renewed application was refused [21].

• Upper Tribunal (Immigration and Asylum Chamber): Deputy Upper Tribunal Judge Woodcraft, after a de novo hearing, dismissed the applicant’s asylum, humanitarian protection and human rights appeals. No citation for that determination is stated in the judgment.
• Court of Appeal (Civil Division): Lord Justice Richards refused the renewed application for permission to appeal in [2013] EWCA Civ 1285.