MN (Sudan) v Secretary of State for the Home Department

On a fresh asylum claim, a tribunal need not start entirely afresh. It may take account of earlier credibility findings while making its own assessment of the evidence and the claimant’s credibility. Expert evidence must be considered in the context of the evidence as a whole, but the tribunal is not bound to accept it. An expert should not give a quasi-judicial opinion on matters outside the expert’s field. On a second appeal, permission requires an important point of law or principle, or another compelling reason. A challenge that merely reargues the factual weight of the evidence does not satisfy that test, even where return may expose the claimant to serious danger.

The respondent, a Sudanese national, made successive asylum claims. His fresh claim was rejected by the Secretary of State, the First-tier Tribunal and, on appeal, the Upper Tribunal. The First-tier Tribunal rejected his claim to be a non-Arab Darfuri and his account of anti-government activity, relying on credibility concerns, earlier findings and the evidence, including an expert report. The Upper Tribunal upheld that reasoning, subject to two criticisms. Permission to appeal was then refused by the Senior Upper Tribunal Judge and by Buxton LJ on paper.

The Court of Appeal considered the renewed application for permission and whether the tribunals had erred in their treatment of the expert evidence, earlier credibility findings and fresh claim. It also applied the second appeal test.

1. Application refused. The proposed appeal disclosed no real point of law. It sought to reargue the factual weight assigned to the evidence.
2. An immigration judge considering a fresh claim is not required to start entirely afresh. Under Devaseelan [2002] UKAIT 00702, earlier findings may be taken into account to an extent determined by the circumstances. The judge must nevertheless assess the fresh material and may form an independent view of the claimant’s credibility after hearing the evidence.
3. A tribunal is not bound to accept expert evidence. It must consider the expert material alongside the evidence as a whole and may attach greater weight to credibility inconsistencies which fall outside the expert’s field. The judge’s reference to the expert not knowing the earlier credibility findings did not, read in context, amount to an unlawful demand that the expert express a quasi-judicial opinion on matters beyond his expertise.
4. The evidence concerning ethnicity and overall credibility was interconnected. The tribunal was therefore entitled to assess the expert report on language and geography against the claimant’s recorded place of birth, passport, previous inconsistencies and his own evidence.
5. It was common ground, on the basis of AA (Non-Arab Darfuris Relocation (Sudan)) CG [2009] UKAIT 00056, that return would be unsafe for a non-Arab Darfuri or a person of any ethnicity who had undertaken anti-government activity.
6. The second appeal test could be applied in a nuanced way where there were strong grounds and grave danger on return, as recognised in JD (Congo) [2012] EWCA Civ 327. That consideration did not remove the requirement for an important point of law or principle, or another compelling reason. No such basis existed.

Permission to appeal to the Court of Appeal was refused.

• Court of Appeal (Civil Division): On 23 January 2013, Lord Justice Rix refused the renewed application for permission to appeal.
• Upper Tribunal: Deputy Upper Tribunal Judge Kelly dismissed the appeal in a determination dated 17 April 2012.
• First-tier Tribunal: Immigration Judge Jones dismissed the appeal against refusal of the fresh asylum claim in a determination dated 11 August 2011.
• Permission stages: Senior Upper Tribunal Judge Taylor and, on paper, Buxton LJ refused permission to appeal.