WA (Afghanistan) v The Secretary of State for the Home Department

In a second appeal concerning an immigration credibility assessment, fresh evidence may be treated with circumspection where it could reasonably have been produced at the first hearing. That approach is qualified where there is a very good reason for the earlier omission. A claimant’s minority or reluctance to disclose sexual abuse does not automatically constitute such a reason. The tribunal must assess those matters with the evidence as a whole. An appellate court should not interfere where the first-instance evaluation was open to the tribunal. Permission for a second appeal should be refused where the grounds lack substance or prospect of success and no important point of principle or practice arises.

The applicant, an Afghan national, sought permission for a second appeal concerning refusals to extend his leave to remain and to recognise him as a refugee. His account of persecution, detention, abuse and escape had been rejected as not credible by Immigration Judge Miller in 2010 and by First-tier Tribunal Judge Andrews in 2015. Judge Andrews relied in part on the earlier findings under the guidance in Devaseelan. The Upper Tribunal dismissed the appeal on 15 January 2016, finding no error of law in that approach. Permission was refused on the papers, and the applicant renewed the application orally before the Court of Appeal. The central issues were the treatment of a later medico-legal report, the application of the Devaseelan guidelines, and the significance of the applicant’s age and alleged non-disclosure.

Application refused. Lord Justice Hamblen refused the renewed application for permission to bring a second appeal. None of the grounds had substance or a prospect of success, and the application raised no important point of principle or practice.

1. Fresh evidence. The guidance in Devaseelan (Second Appeals - ECHR - Extra-Territorial Effect) Sri Lanka [2002] UKIAT 00702, particularly Guideline (4), permitted a later tribunal to treat evidence with circumspection where it had not been produced at the earlier hearing although it could have been obtained then. Judge Andrews had understood the contents and implications of Dr Goldwyn’s report. The applicant had been legally represented at the earlier hearing, and there was no reason why a medical report could not have been obtained then.
2. Very good reason. Guideline (7) reduces the force of Guideline (4) where there is a very good reason why an earlier failure to adduce evidence should not be held against the appellant. Although Judge Andrews did not expressly refer to Guideline (7), she considered the issue in substance. The applicant’s age did not require the earlier omission to be excused. Judge Miller had found that he could follow the proceedings and give a full account of his case.
3. Non-disclosure and credibility. The court rejected the suggestion that the failure to disclose sexual abuse had been treated in isolation as decisive. Judge Andrews recognised that victims of sexual abuse may be reluctant to disclose it. She weighed that matter against the applicant’s legal representation, inconsistencies and other substantial revisions in his account. Her evaluation was open to her and did not turn critically on that single issue.
4. Age and earlier findings. Judge Andrews and the Upper Tribunal had properly considered the dispute about the applicant’s age and the reassessment of it after the first hearing. It was open to Judge Andrews to place weight on Judge Miller’s findings in accordance with the Devaseelan guidelines.

The formal order was that the application was refused.

1. Court of Appeal (Civil Division): renewed application for permission to bring a second appeal refused. [2018] EWCA Civ 3035.
2. Upper Tribunal (Immigration and Asylum Chamber): Deputy Upper Tribunal Judge Lewis dismissed the appeal by decision dated 15 January 2016.
3. First-tier Tribunal: Judge Andrews rejected the applicant’s account as not credible in a decision dated 18 May 2015.
4. Immigration adjudication: Immigration Judge Miller dismissed the applicant’s earlier appeal on 6 May 2010 and found his account not credible.