AL (Albania) v The Secretary of State for the Home Department

In linked asylum claims by different family members arising from the same factual matrix, the earlier determination is the starting point under the Devaseelan guidance. It should ordinarily be followed unless there is a very good reason to depart from it. The earlier determination does not create issue estoppel or impose a stronger test.

Fresh evidence which contradicts a core feature of the earlier accepted account may constitute a very good reason to depart. Whether the evidence fairly permits that conclusion depends on the appellant’s notice of it, ability to investigate and answer it, and any opportunity to seek an adjournment. Evidence directed to credibility does not, without more, allege fraud.

The appellant, an Albanian national, claimed asylum on the basis that his family was subject to a blood feud. His elder brother had succeeded in an earlier asylum appeal on substantially the same factual account.

The First-tier Tribunal dismissed the appellant’s appeal. It received an Embassy letter concerning the uncle’s travel between Albania and Greece, found the appellant not credible, and departed from the earlier determination. The Upper Tribunal dismissed the appellant’s challenge.

The appellant appealed to the Court of Appeal on the bases that the earlier determination had been given insufficient weight, that the late travel evidence was inadequate to displace it, and that his explanation for the travel records had been wrongly assessed.

1. Appeal dismissed unanimously. The First-tier Tribunal and the Upper Tribunal made no material error of law.

2. Where different family members advance linked claims arising from the same factual matrix, the Devaseelan guidance applies. The earlier determination is the starting point and should be followed unless there is a very good reason not to do so. It is not binding as issue estoppel, and the appellant’s proposed stronger approach was inconsistent with the guidance approved in Ocampo and AA (Somalia).

3. The First-tier Tribunal did treat the brother’s determination as its starting point. The Embassy evidence of the uncle’s repeated travel was a very good reason to depart because it contradicted the core assertion that he had fled Albania, feared return and could not safely travel there. References by the lower tribunals to the wrong formulation of authority did not matter because they identified and applied the correct guidance.

4. The travel evidence could fairly be relied upon. The appellant had been on notice of it for about seven months, could obtain information through his family, had an opportunity to address it, and could have sought an adjournment if further time were required. The analogy with EURODAC evidence was therefore misconceived. The travel records were also only one of several findings adverse to credibility.

5. The First-tier Tribunal’s assessment of the explanation that another person used the uncle’s passport was open to it. Although the Tribunal had misstated part of that explanation, it could rationally find that a person genuinely fearing for his life would not entrust a passport to another. Evidence bearing on credibility did not itself amount to an allegation of fraud.

• Court of Appeal (Civil Division): dismissed the appeal in [2019] EWCA Civ 950, affirming the Upper Tribunal.
• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appellant’s appeal against the First-tier Tribunal’s determination.
• First-tier Tribunal: dismissed the appellant’s asylum appeal and upheld the Secretary of State’s refusal.