Secretary of State for the Home Department v JR (Jamaica), R (on the application of)

An appellate court may interfere with a specialist tribunal only for an error of law. Adequate reasons need not set out every step of the tribunal’s reasoning where its findings and the basis for them are intelligible. A tribunal assessing credibility must consider material matters, including late disclosure and a witness’s possible incentive to lie, but need not provide reasons for reasons.

In assessing rebuttal of the statutory presumption of dangerousness, the tribunal must evaluate the evidence as a whole, including the seriousness of the offence, risk assessments, rehabilitation and current circumstances. A conclusion that the presumption has been rebutted is not irrational merely because the original offence was grave. The result remains fact-sensitive and does not provide general guidance for persons convicted of grave crimes.

The respondent, a Jamaican national who had arrived in the United Kingdom as a child, had been convicted of murder and was subject to a deportation decision. His first asylum claim failed. He later claimed refugee and human-rights protection on the basis that he was homosexual.

The First-tier Tribunal accepted that he was homosexual and allowed the appeal on refugee and Article 3 grounds. The Upper Tribunal dismissed the Secretary of State’s appeal, finding no legal error and concluding that the respondent had rebutted the presumption of dangerousness under section 72 of the Nationality, Immigration and Asylum Act 2002. The Secretary of State appealed to the Court of Appeal on alleged failures to consider material matters, inadequate reasoning and irrationality.

1. The appeal was dismissed unanimously. The Court of Appeal dismissed the challenges to the findings that the respondent was homosexual and had rebutted the statutory presumption of dangerousness. He was therefore entitled to both Article 3 protection and refugee status.
2. The appeal lay only on a point of law under section 13 of the Tribunals, Courts and Enforcement Act 2007. The First-tier Tribunal had addressed the late disclosure, the respondent’s immigration history, alleged inconsistencies and his explanations. Its reasons made intelligible why lateness was not treated as fatal.
3. The tribunal had also been entitled to accept the mother’s evidence. It had seen and heard her cross-examined, expressly approached credibility with circumspection, and assessed her evidence alongside the church letters and psychiatric report. Applying R (Jones) v First-tier Tribunal and Criminal Injuries Compensation Authority [2013] UKSC 19, and the earlier reasoning in R v Immigration Appeal Tribunal, ex parte Khan [1983] QB 790, the appellate court should exercise restraint and should not demand reasons for reasons. English v Emery Reimbold & Strick [2002] 1 WLR 2409 supported the same approach.
4. Section 72 of the Nationality, Immigration and Asylum Act 2002 creates a rebuttable presumption, for the purposes of Article 33.2 of the Refugee Convention, that a person convicted in the United Kingdom and sentenced to at least two years’ imprisonment has been convicted of a particularly serious crime and constitutes a danger to the community. The tribunal must consider the whole evidential picture, including the gravity of the offence, risk assessments, parole evidence, rehabilitation, later assessments and current conduct.
5. The Upper Tribunal had not overlooked the seriousness of the respondent’s offence. Its conclusion that the presumption had been rebutted was open to it and was neither perverse nor irrational. The Court of Appeal could not re-weigh the evidence in the absence of legal error. The conclusion turned on the specific and unusual facts and was not general succour for others convicted of grave crimes.

• Court of Appeal (Civil Division) — Dismissed the Secretary of State’s appeal on both issues. The respondent remained entitled to Article 3 protection and refugee status.
• Upper Tribunal (Immigration and Asylum Chamber) — By a determination promulgated on 27 August 2013, dismissed the Secretary of State’s appeal from the First-tier Tribunal and upheld the relevant findings, including rebuttal of the section 72 presumption.
• First-tier Tribunal — Accepted that the respondent was homosexual and allowed his appeal on refugee and Article 3 grounds.