JA (Afghanistan) v Secretary of State for the Home Department

Common-law fairness in asylum proceedings requires careful scrutiny of the reliability and weight of interview records before they are used to determine credibility. The obligation is especially important where a child, an interpreter, or the absence of independent support creates a real risk of misunderstanding. Procedural defects do not automatically make relevant answers inadmissible. In the absence of a statutory exclusionary power, they affect the weight to be given to the evidence. An appellate tribunal must decide a material ground capable of affecting the outcome. Where a safeguarding duty has expired, it must decide whether the breach caused prejudice rather than simply direct compliance.

The appellant arrived in the United Kingdom from Afghanistan aged about 14½. The Secretary of State rejected his asylum and humanitarian-protection claim because of perceived inconsistencies between accounts given at initial, screening and asylum interviews. He was nevertheless granted discretionary leave as an unaccompanied minor.

On his later application for further leave, the First-tier Tribunal again rejected his account as incredible. The Upper Tribunal set aside that decision because the Secretary of State had not attempted to trace his family under Regulation 6 of the Asylum Seekers (Reception Conditions) Regulations 2005. It allowed the appeal only to require compliance with that duty, without deciding the challenge to reliance on the early interview records.

The central issues were whether the Upper Tribunal had to determine that procedural-fairness ground, the proper use of interviews of an unsupported child, and the proper remedy for the expired family-tracing duty.

1. Appeal allowed. The Upper Tribunal's failure to determine the challenge to the use of the appellant's initial and screening interviews was material. That ground went to the credibility findings and could affect the outcome. Its omission was therefore an error requiring the Upper Tribunal's order to be set aside.
2. Common-law procedural fairness varies with the process, its purpose and the importance of the decision. Following R (Dirshe) v Secretary of State for the Home Department [2005] EWCA Civ 421, the court held that fairness required a careful assessment of the extent to which reliance could properly be placed on the early interview records. The assessment had to account for the appellant's age, limited English, use of an interpreter, lack of independent support and the possibility of misunderstanding.
3. There was no statutory exclusionary power comparable to section 78 of the Police and Criminal Evidence Act 1984. The tribunal could not therefore exclude relevant evidence merely because of procedural defects. It had to determine what weight, if any, the answers deserved. The principles in R (AN (A child) and FA (A child)) v Secretary of State for the Home Department [2012] EWCA Civ 1636 confirmed that answers obtained from a child without a responsible adult or legal representative were not automatically inadmissible, but required considerable caution.
4. Under section 12 of the Tribunals, Courts and Enforcement Act 2007, read with sections 86 and 87 of the Nationality, Immigration and Asylum Act 2002, the Upper Tribunal should have made the decision within its own jurisdiction. By the date of its order, the Regulation 6 duty had expired because the appellant was an adult. In accordance with KA (Afghanistan) v Secretary of State for the Home Department [2012] EWCA Civ 1014, it should have decided whether the failure to trace his family had prejudiced him, rather than directing belated compliance.
5. The case was remitted to a differently constituted Upper Tribunal for reconsideration as a whole in the light of the Court of Appeal's views. Moore-Bick LJ gave the judgment; Gloster and Vos LJJ agreed.

• Court of Appeal (Civil Division) Allowed the appeal, set aside the Upper Tribunal's order and remitted the case to a differently constituted Upper Tribunal for reconsideration as a whole.
• Upper Tribunal (Immigration and Asylum Chamber) Set aside the First-tier Tribunal's decision because of the failure to attempt family tracing under Regulation 6 of the Asylum Seekers (Reception Conditions) Regulations 2005. It purported to allow the appeal only to require compliance with that duty, but did not decide the procedural-fairness challenge concerning the interview records.
• First-tier Tribunal Rejected the renewed asylum and humanitarian-protection claim, finding the appellant's account incredible in part because of discrepancies between his accounts.