AM (Belarus) v Secretary of State for the Home Department

On a repeat asylum appeal, earlier tribunal determinations provide the starting point, but they are not determinative. A later tribunal must assess new evidence on its own merits, while treating previously unraised facts personal to the appellant with greatest circumspection and recognising the earlier tribunal’s advantage in fact-finding and credibility assessment.

Credibility and the weight of expert evidence ordinarily raise questions of fact. Expert material based on an account rejected as incredible may have little materiality. In an Article 8 appeal, proportionality is a value judgment. Appellate intervention is justified only where no reasonable tribunal, properly instructed, could have reached the decision.

The appellant, a Belarusian national who had lived in the United Kingdom since 1998, brought a third asylum claim based on alleged past political activity and feared persecution on return. Earlier adjudicators had rejected his account. The First-tier Tribunal heard new evidence from Mr Berk and expert evidence about Belarus, but rejected the appellant’s credibility and dismissed his Article 8 private-life claim.

The Upper Tribunal dismissed the appeal. On a second appeal, the appellant argued that the First-tier Tribunal had applied the Devaseelan guidelines too rigidly, failed to give proper weight to the new evidence, and reached an unlawful conclusion on proportionality.

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

1. The Devaseelan guidelines, cited as [2002] UKIAT 00702, were properly used as the framework for the repeat appeal. Earlier decisions were the starting point, but the guidelines were not a straitjacket. Facts personal to the appellant that had not previously been raised had to be treated with greatest circumspection, particularly where they appeared to improve the case. An earlier tribunal may also have an advantage because it heard the evidence closer to the events and assessed general credibility at that time.
2. The First-tier Tribunal did not treat the earlier findings as determinative. It considered the evidence as a whole and was entitled to attach weight to the two earlier adverse credibility findings. Mr Berk’s later evidence concerned facts personal to the appellant that had not been raised at either earlier hearing. It fell within the fourth Devaseelan guideline whether or not Mr Berk could have been called orally in 2002.
3. The expert evidence assumed that the appellant’s account of the extent of his political activity was true. Once that account was rejected as incredible, the background evidence had little materiality. Whether to accept the evidence and what weight to give it were questions of fact, not law. The appellate courts could not interfere absent an error of law.
4. The Article 8 assessment was also lawful. The First-tier Tribunal considered the absence of family life, the limited private life relied upon, the medical evidence, the availability of basic medical care in Belarus, the appellant’s immigration history, criminal record and deportation order. Proportionality is essentially a value judgment. Intervention was permitted only if no reasonable tribunal, properly instructed, could have reached the conclusion reached. That threshold was not met.

Lord Justice Lewison delivered the judgment. Lady Justice Gloster and Lord Justice Jackson agreed.

• Court of Appeal (Civil Division), [2014] EWCA Civ 1506: dismissed the appellant’s second appeal.
• Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge Sullivan dismissed the appeal from the First-tier Tribunal.
• First-tier Tribunal: Judge Pooler rejected the asylum account and held that removal would be proportionate under Article 8.