AA (Somalia) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 25 October 2007 |
| Date | 25 October 2007 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Ward, Carnwath and Hooper LJJ
Representation
Mr Rick Scannell and Miss C M Fielden instructed by Messrs South West Law, for the first Claimant;
Mr Rick Scannell and Mr Rory O'R yan instructed by Luqmani, Thompson and Partners, for the second Claimant;
Mr Steven Kovats instructed by the Treasury Solicitor, for the Secretary of State.
Cases referred to:
DB (Dependent relativeAppeals procedure) Pakistan[2003] UKIAT 00053
Devaseelan (Second AppealsECHRExtra-Territorial Effect) Sri Lanka*[2002] UKIAT 702; [2003] Imm AR 1
Djebbar v Secretary of State for the Home DepartmentUNK[2004] EWCA Civ 804; [2004] Imm AR 497; [2004] INLR 466
Hollington v F Hewthorn & Co LtdELR[1943] KB 587
Matadeen and another v Pointu and others and The Minister of Education and Science and anotherELR[1999] 1 AC 98 PC
Mukarkar v Secretary of State for the Home DepartmentUNK[2006] EWCA Civ 1045; [2007] Imm AR 57; [2006] INLR 486
Ocampo v Secretary of State for the Home DepartmentUNK[2006] EWCA Civ 1276; [2007] Imm AR 225; [2007] INLR 49
Otshudi v Secretary of State for the Home DepartmentUNK[2004] EWCA Civ 893
R (Iran), A (Afghanistan), M (Afghanistan), T (Afghanistan) and T (Eritrea) v Secretary of State for the Home DepartmentUNK[2005] EWCA Civ 982; [2005] Imm AR 535; [2005] INLR 633
R (Wani) v Secretary of State for the Home Department and The Asylum and Immigration TribunalUNK[2005] EWHC 2815 (Admin); [2006] Imm AR 125; [2006] INLR 234
R v Cardiff County Council ex parte Sears Group Properties Ltd[1998] 3 PLR 55
S and others v Secretary of State for the Home DepartmentUNK[2002] EWCA Civ 539; [2002] INLR 416
SK (Guidance on the application of Devaseelan) Serbia and Montenegro[2004] UKIAT 00282
TK (Consideration of Prior DeterminationDirections) Georgia[2004] UKIAT 00149
Evidence assessment of evidence weight attached to earlier finding of fact Devaseelan guidelines material overlap of evidence same factual matrix procedure and process previous related determination material overlap of evidence starting point
These two cases were heard together because they gave rise to the same issue regarding how far, and to what effect, the Devaseelan* guidelines should be applied in cases involving different applicants but closely related factual circumstances.
The first Claimant, a citizen of Somalia, arrived in the United Kingdom in 2004 and applied for asylum. He stated that he was an Ashraf and gave details of events which had caused him and other family members to leave Somalia in 1992. The Secretary of State for the Home Department refused the application, concluding that the Claimant knew too little about the Ashraf to be credibly regarded as a member of that clan. The Claimant appealed on the ground that the Secretary of State had failed to take into account the fact that his sister, O, had already been granted refugee status. An Adjudicator dismissed the appeal, finding that the Claimant's account was extremely vague and discrepancies in the evidence undermined his credibility. The Adjudicator also stated that, although the Claimant's sister had been found to be credible in the determination of her asylum case, that finding was not binding on him. On reconsideration, the Asylum and Immigration Tribunal noted that the determination in O's case had not been before the Adjudicator and concluded that he had not erred in law by failing to take account of its contents. The Tribunal held that the Adjudicator was bound to determine the Claimant's appeal on the evidence before him as an independent judge of fact and law.
The second Claimant, a citizen of Iran, arrived in the United Kingdom in 2000. He claimed asylum on the ground that, as a homosexual he would be at risk of persecution on return to Iran. The Secretary of State refused his asylum and human rights claims. The Claimant appealed. An Adjudicator allowed the appeal, stating that he was bound by a previous Adjudicator's findings of fact regarding the Claimant in a related appeal brought by the Claimant's homosexual partner. In that previous decision, the Adjudicator had found that the second Claimant was
homosexual, that he had a relationship with his wife's cousin, that his wife was aware of this and was likely to seek revenge by informing the authorities if he returned to Iran. The Secretary of State appealed to the Asylum and Immigration Tribunal. The Tribunal held that the Adjudicator had made an error of law and ordered reconsideration. A second Tribunal panel dismissed the appeal, holding that the Adjudicator had erred in binding himself by facts found by another AdjudicatorThe Claimants appealed to the Court of Appeal, contending that the previous findings of fact were binding, absent a very good reason why they should not be.
Held, dismissing the first Claimant's appeal and allowing the second Claimant's appeal:
(1) guidelines regarding the weight to be attached to findings of an adjudicator in subsequent appeals by the same applicant, as outlined in Devaseelan, extended to cases where the earlier decision involved different parties, where there was a material overlap of evidence and where the claims arose out of the same factual matrix; the first judge's determination was not binding in the technical sense of issue estoppel or res judicata but was the starting point and, in the interest of good administration, should be followed unless a good reason was advanced to the contrary: TK (Consideration of Prior Determinations) Georgia[2004] UKIAT 00149 applied; in cases where the parties were different, and where there was a material overlap of evidence rather than a mere overlap of evidence, the second tribunal should have regard to the factual conclusions of the first tribunal but had to evaluate the evidence as it would in any other case and independently decide the second case on its own individual merits: Ocampo v Secretary of State for the Home DepartmentUNK[2006] EWCA Civ 1276 applied (paras 711, 18, 20, 29, 69 and 77);
(2) in applying the guidelines to cases involving different claimants, there could be a valid distinction depending on whether the previous decision was in favour of or against the Secretary of State; in the former case, the Secretary of State would have been a direct party to the first decision whereas the claimant would not; it would be unfair to impose a restriction on re-litigating an issue on someone who, although involved in the previous case, perhaps as a witness, had not formally been a party (paras 70 and 78);
(3) in the case of the first Claimant, he had not produced the earlier decision and had not specifically sought to rely on it; accordingly, the Tribunal had been correct to decide that the Adjudicator had not erred in law in failing to take account of the contents of a decision not before him; furthermore, the position would not have been materially different had the Claimant decided to place the previous decision before the Adjudicator; there had been so much extra evidence before him that he would have been bound to move away from the starting point of the first decision (paras 3335, 71 and 79);
(4) (Hooper LJ dissenting) in the case of the second Claimant, the Adjudicator had specifically relied on the previous decision to support his determination in favour of the Claimant; although it might have been better not to have used the term bound by, it was clear that the Adjudicator had used that term simply as a consequence of the faithful application of the guidance in TK to the facts of the case; there had been no compelling new evidence and no reason for the Adjudicator not to treat the first decision as determinative; the Tribunal's subsequent decision that there had been an error in law had been based on the guidance in SK (Guidance on the application of Devaseelan) Serbia and Montenegro[2004] UKIAT 00282, which was inconsistent with TK and had to be taken to have been overruled by Ocampo (paras 71 and 79).
Lord Justice Hooper:
[1] These two cases have been listed together because of an issue common to both. The issue arises in cases where there is overlapping evidence of fact in two separate cases. The issue is: In X's asylum/human rights appeal what weight, if any, should be given to a finding of fact made in Y's favour which assists X and which was made by a tribunal when allowing an asylum/human rights appeal in respect of Y?
[2] In AA's case it was and is submitted that the previous finding of fact in his sister's appeal that she was of the Ashraf clan was binding on the AIT when considering AA's separate appeal against the decision of the SSHD to refuse AA's asylum and human rights claims. The AIT ([2006] UKAIT 00052) rejected that submission and the appellant appeals to this Court.
[3] In AH's case it was and is submitted that that the previous findings of fact in M's appeal that AH was in a homosexual relationship with M, that M was the cousin of AH's wife, that AH's wife knew and strongly disapproved and that this made it more likely that AH would come to the attention of the Iranian authorities, were binding on the AIT when considering AH's separate appeal against the decision of the SSHD to refuse AH's asylum and human rights claims. The AIT (Appeal number HX/14896/2004) rejected that submission and the appellant appeals to this Court.
[4] Mr Scannell submits on behalf of the appellants that the previous findings of fact are binding absent a very good reason why they should not be. Whilst accepting that fresh evidence might provide a very good reason, he was reticent about other possible good reasons. However, he submitted that if the material before the second tribunal was essentially no different to the material before the first tribunal, the previous findings of fact would be binding. If Mr Scannell is right then at the hearing before the...
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