OK v The Secretary of State for the Home Department

An appeal cannot succeed where an independent alternative finding that is sufficient to determine the outcome has not been challenged. Grounds of appeal and applications for permission must identify any arguable error in every alternative basis on which the lower tribunal allowed or dismissed the appeal. The absence of such a challenge will normally determine the appeal’s prospects of success.

A tribunal may assess documentary and expert evidence in the round. It may give that evidence limited or no weight where material inconsistencies in the claimant’s account undermine the reliability of the underlying documents or explanation.

The appellant, a Ukrainian national, appealed against First-tier Tribunal Judge Lingam’s dismissal of her protection appeal. She claimed to fear persecution as a female medical worker who had evaded military mobilisation in Ukraine and who had allegedly been convicted in her absence.

The First-tier Tribunal found that she was not a qualified nurse or medical practitioner liable for call-up. In the alternative, it found that even if she were a draft evader, prosecution and a custodial sentence were very unlikely given her circumstances as the mother of three young children.

The appeal challenged the findings concerning her employment, documents, expert evidence and alleged prosecution. The central issue was whether any pleaded ground impugned the independent alternative finding that she would not face a real risk of imprisonment on return.

1. Appeal dismissed. The First-tier Tribunal’s decision involved no material error of law and was upheld.

2. The appellant had not challenged the First-tier Tribunal’s alternative finding at [86]. That finding was independently sufficient to defeat the protection claim: even taking the evidence at its highest, it was very unlikely that she would be prosecuted for draft evasion and, if prosecuted, that she would receive a custodial sentence as a single parent of three young children. The pleaded ground concerning apprehension and retrial after a conviction in absentia did not engage with that finding.

3. The Tribunal stated that a professional representative must draft grounds with appropriate particularity and legibility. When considering permission to appeal, a judge must carefully consider whether every alternative basis for the outcome is challenged. The absence of a meritorious challenge to an alternative basis will normally be determinative of the appeal’s prospects.

4. In any event, the remaining grounds disclosed no material error. The First-tier Tribunal had made clear adverse credibility findings concerning the appellant’s alleged nursing qualifications and employment. It was entitled to assess the evidence cumulatively and to give limited weight to Professor Galeotti’s opinion about the apparent genuineness of scanned documents, because that opinion did not resolve the material inconsistencies in the appellant’s account.

5. The Tribunal also upheld the treatment of the letter from the Ukrainian lawyer as wholly unreliable. Its contents were inconsistent with the lawyer’s professional role and with the evidence in VB and Another (draft evaders and prison conditions) Ukraine CG [2017] UKUT 00079 (IAC) that custodial sentences for draft evasion were rare. The appellant’s delay in seeking asylum was lawfully treated as relevant under Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, section 8.

The anonymity order was confirmed. No fee award was made.

• Upper Tribunal (Immigration and Asylum Chamber): Dismissed the appeal and upheld the First-tier Tribunal’s decision; no material error of law was established.
• First-tier Tribunal: Judge Lingam dismissed the appellant’s appeal against refusal of international protection. The decision was sent to the parties on 3 September 2019.