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

Tribunals must secure effective participation and procedural fairness for children, young people and other vulnerable or incapacitated parties. Vulnerability should be identified early. Oral evidence is required only where it is necessary for a fair hearing and will not prejudice the person’s welfare. Existing practice directions and guidance should ordinarily be followed; failure to do so will most likely be a material error of law.

Credibility must be assessed holistically. Age, learning disability, medical evidence, objective country evidence and the possible effect of vulnerability on discrepancies must all be considered. A tribunal may appoint a litigation friend in the rare case where this is necessary for effective access to justice, using its flexible case-management powers or, alternatively, the overriding objective and common-law requirements of fairness.

The appellant was an Afghan child with moderate learning difficulties. He claimed asylum on the basis of feared persecution by the Afghan police and the Taliban. The Secretary of State refused asylum but granted discretionary leave. The First-tier Tribunal rejected the appeal after making adverse credibility findings, although a psychologist had advised that the appellant could not reliably answer questions in court and had recommended procedural safeguards.

The Upper Tribunal dismissed the appeal without adequately engaging with that evidence. On a second appeal, the parties agreed that the asylum appeal should be allowed and reheard. The Lord Chancellor intervened on the wider issue of effective access to the tribunal for children and other vulnerable or incapacitated persons. The Court of Appeal considered the proper approach to participation, evidence, credibility, case management and the appointment of a litigation friend.

1. Appeal allowed. The First-tier Tribunal and Upper Tribunal failed to address the appellant’s age, learning disability and psychological evidence. Ignoring firm expert advice about his ability to give oral evidence and the safeguards he required caused fundamental procedural unfairness and a material error of law. The First-tier Tribunal’s decision was set aside and the asylum claim remitted for a fresh decision.
2. Credibility in an asylum claim must be assessed holistically. A tribunal must not reach a negative credibility assessment first and then ask whether objective or medical evidence displaces it. Where a person is vulnerable, the tribunal must consider whether age, disability or vulnerability explains inconsistencies or lack of detail. In a child’s claim, objective indications of risk receive particular weight.
3. Rules 2, 4 and 14 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 provide flexible powers to secure full participation. Vulnerability should be identified as early as possible. Oral evidence should be required only where necessary for a fair hearing and compatible with the person’s welfare. Where oral evidence is taken, ground rules and protective measures should be settled in advance. Existing practice directions and guidance must be followed; failure will most likely amount to a material error of law.
4. The tribunal is not bound by strict civil rules of evidence. It may receive written, hearsay and expert material and control the manner in which evidence is given. Experts should not determine credibility, which remains for the judge, but medical evidence may explain difficulties in recall or testimony and identify safeguards needed for effective participation.
5. The First-tier Tribunal may appoint a litigation friend in the rare case where a child or incapacitated adult cannot otherwise represent himself or herself or obtain effective access to justice. The power arises from the tribunal’s flexible procedural rules. Alternatively, the overriding objective, read with the common-law duty of fairness, requires the same result. Underhill LJ agreed, while stressing that the litigation friend’s authority should be clearly regulated by tribunal rules.
6. Case management must be proportionate and timely. Parties should co-operate to seek bespoke directions or a case-management hearing where needed. Delaying consideration of vulnerability until the substantive hearing in the expectation of an adjournment breaches the procedural rules.

1. Court of Appeal (Civil Division): Appeal allowed. The First-tier Tribunal’s decision was set aside and the asylum claim remitted for fresh determination: [2017] EWCA Civ 1123.
2. Court of Appeal (permission): Permission for a second appeal was granted because an important point of principle or practice arose concerning effective access to the tribunal: [2016] EWCA Civ 207.
3. Upper Tribunal (Immigration and Asylum Chamber): The appellant’s appeal was dismissed. The Upper Tribunal held that the First-tier Tribunal was entitled to make its credibility findings and had accounted for the appellant’s learning difficulties: [2014] UKAITUR AA048112013.
4. First-tier Tribunal (Immigration and Asylum Chamber): The appellant’s asylum appeal was dismissed on adverse credibility and risk findings. The decision was subsequently set aside by the Court of Appeal.