Amina Mahamat Saboun, R (on the application of) v The Secretary of State for the Home Department

A previous First-tier Tribunal determination will ordinarily provide the starting point when the Secretary of State considers further asylum submissions under [2002] UKIAT 000702. That approach is unlawful, however, in the rare case where fundamental procedural unfairness at the earlier hearing means that its credibility findings cannot reasonably stand.

An unrepresented protection claimant must have a fair opportunity to understand and answer the material challenges to her account. Where the claimant was not made aware of significant credibility allegations, including an erroneous allegation, it is unsafe to rely on the resulting adverse findings when deciding whether further submissions amount to a fresh claim.

The applicant, a national of Chad, had been refused asylum in the fast-track procedure. Her appeal to the First-tier Tribunal was dismissed after she appeared without representation. Her application for permission to appeal was refused and was not renewed.

She later made further submissions with statements from relatives, psychiatric material and social-services material. The Secretary of State refused to treat them as a fresh claim, assessing them through the earlier adverse credibility findings. Following reconsideration, the decision challenged was that dated 26 March 2015.

The judicial review asked whether the First-tier Tribunal hearing had been procedurally unfair, such that its findings should not have been used as the starting point under [2002] UKIAT 000702.

1. The judicial-review claim succeeded. The Secretary of State’s decision of 26 March 2015 could not stand because it was founded on adverse credibility findings from a procedurally unfair First-tier Tribunal hearing.

2. The general approach in [2002] UKIAT 000702 requires an earlier determination to be the starting point. It also recognises rare cases in which the circumstances of the first appeal justify considering the matter as if that determination had not been made. This was such a case.

3. Being unrepresented did not itself make the hearing unfair. The judge nevertheless had a duty to conduct it so that the applicant could advance her case. Nor did the material establish that refusing an adjournment, sought to obtain representation and an unspecified document, was itself unfair.

4. The decisive defect was that the applicant did not have a reasonable opportunity to know and answer the substantial credibility challenges in the reasons for refusal letter. The judge asked general questions but did not put the asserted inconsistencies to her or invite explanations. The refusal letter also incorrectly alleged that she was bisexual, and that allegation appeared in the First-tier Tribunal determination despite not being put to her.

5. In an international-protection claim founded on highly personal circumstances, fairness required the judge to ensure that an unrepresented applicant understood the nature and extent of the credibility case she had to meet. It was therefore unsafe for the Secretary of State to rely on those findings when assessing the further submissions under paragraph 353 of the Immigration Rules HC 395.

6. Under rule 44 of the Tribunal Procedure (Upper Tribunal) Rules 2008, permission to appeal was considered and refused because no arguable point of law capable of affecting the result arose.

• Upper Tribunal (Immigration and Asylum Chamber): judicial review allowed; the Secretary of State’s decision of 26 March 2015 could not stand.
• First-tier Tribunal: the applicant’s asylum appeal was dismissed on 8 March 2013. Permission to appeal was refused on 15 March 2013 and was not renewed.