RQ (Jordan)), R (on the application of) v Secretary of State for the Home Department & Anor

In a fast-track asylum appeal, an adjournment is required where the tribunal cannot fairly determine the case on the listed date and the missing evidence may materially affect credibility. The tribunal must apply that test by reference to the whole credibility assessment, including interconnected factual issues. A finding that one issue can be considered separately does not justify refusing an adjournment where another part of the decision draws that issue back into the overall credibility finding. Asylum cases require anxious scrutiny and a high standard of procedural fairness. Subsequent evidence showing that the claimant’s position was factually correct does not remove the need for relief where the original decision was reached on a false factual basis.

The claimant, a Jordanian national of Palestinian descent, sought asylum after overstaying his visitor’s visa. The Secretary of State refused the claim, and the First-tier Tribunal dismissed his appeal under the Detained Fast Track Process. The First-tier Tribunal refused an adjournment sought to obtain evidence concerning the claimant’s alleged loss of Jordanian nationality. The Upper Tribunal refused permission to appeal.

On judicial review, the claimant argued that the refusal of an adjournment had produced an unfair hearing and that the Upper Tribunal had failed properly to assess the effect of the nationality issue on the credibility findings. By the hearing, both parties accepted that the claimant’s nationality had been revoked, although by fraud. The central issue was whether the Upper Tribunal had lawfully concluded that the First-tier Tribunal’s credibility findings were independent of the nationality issue.

1. The application for judicial review was granted and the Upper Tribunal’s decision of 21 September 2012 refusing permission to appeal was quashed.

2. Under Rule 28 of the Asylum and Immigration Tribunal (Fast Track Procedure) Rules 2005, the operative question was whether the appeal could be justly determined on the listed date. If not, the matter could be relisted within the permitted period or transferred out of the fast-track procedure under Rule 30.

3. The reference to exceptional circumstances in Rule 30 added no separate or higher test. The question remained whether the appeal could otherwise be justly determined, applying R (SH (Afghanistan)) v SSHD [2011] EWCA Civ 1284.

4. The Upper Tribunal erred in law in treating the nationality issue and the persecution account as separate credibility assessments. Although the First-tier Tribunal’s reasoning at paragraphs 53 to 59 could be read as freestanding, paragraph 60 expressly drew the nationality findings back into the overall credibility assessment. It was therefore at least arguable that the adverse nationality finding affected the assessment of the persecution account.

5. Where the Secretary of State relied on the absence of evidence to attack credibility, fairness required the claimant to have a reasonable opportunity to obtain and produce that evidence. This was particularly important in an asylum claim, which required anxious scrutiny and the highest standards of fairness. The subsequent possibility that the evidence might ultimately strengthen the adverse credibility case did not justify refusing relief.

• High Court (Administrative Court): granted judicial review and quashed the Upper Tribunal’s refusal of permission to appeal, [2014] EWHC 559 (Admin).
• Upper Tribunal (Immigration and Asylum Chamber): refused permission to appeal on 21 September 2012.
• First-tier Tribunal: dismissed the claimant’s asylum appeal on 7 September 2012 and refused permission to appeal on 12 September 2012.