JT (Cameroon) v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLord Justice Pill,Lord Justice Laws,Lord Justice Carnwath
Judgment Date28 July 2008
Neutral Citation[2008] EWCA Civ 878
Docket NumberCase No:C5/2008/0163
CourtCourt of Appeal (Civil Division)
Date28 July 2008
Between:
Jt (Cameroon)
Appellant
and
Secretary of State for the Home Department
Respondent

[2008] EWCA Civ 878

Before:

Lord Justice Pill

Lord Justice Laws and

Lord Justice Carnwath

Case No:C5/2008/0163

AA/10922/2006

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE

ASYLUM AND IMMIGRATION TRIBUNAL

Royal Courts of Justice

Strand, London, WC2A 2LL

Mr Robert Jay QC and Mr Tasaddat Hussain (instructed by Messrs Parker Rhodes) for the Appellant

Miss Lisa Giovannetti (instructed by Treasury Solicitors) for the Respondent

Hearing date : 7 July 2008

Lord Justice Pill
1

This is an appeal against a decision of the Immigration Appeal Tribunal dated 22 October 2005 whereby the Tribunal dismissed the appeal of JT against the refusal of the Secretary of State for the Home Department (“the Secretary of State”) refusing JT's application for asylum on 10 September 2006. An earlier appeal had been dismissed on 7 November 2006 but reconsideration was ordered on the basis that it was arguable that there had been a material error in the approach to medical evidence. Permission to appeal to this court against the decision on the reconsideration has been granted by the Tribunal.

2

By a form of consent dated 22 February 2008, the parties agreed that the appeal should be remitted to a differently constituted Tribunal. The Secretary of State agreed that it was arguable that the Tribunal had erred by placing too much reliance on Section 8 of the Asylum & Immigration (Treatment of Claimants etc) Act 2004 (“the 2004 Act”). The Senior Immigration Judge granting permission to appeal took a similar stance.

3

The application for remittal by consent came before Laws LJ who took the view, with which I respectfully agree, that the appeal should remain in this court so that the Section 8 issue can be considered here.

4

The appellant is a citizen of Cameroon who arrived in the United Kingdom on an unknown date in 2004, by air, using false papers. He used two identities while in the United Kingdom. He claimed asylum in July 2005, following his arrest. He was interviewed at length and, on 16 September 2005, the Secretary of State issued a notice refusing asylum and leave to enter the United Kingdom.

5

Section 8 of the 2004 Act provides, in so far as is material:

8. Claimant's credibility

(1) In determining whether to believe a statement made by or on behalf of a person who makes an asylum claim or a human rights claim, a deciding authority shall take account, as damaging the claimant's credibility, of any behaviour to which this section applies.

(2) This section applies to any behaviour by the claimant that the deciding authority thinks -

(a) is designed or likely to conceal information,

(b) is designed or likely to mislead, or

(c) is designed or likely to obstruct or delay the handling or resolution of the claim or the taking of a decision in relation to the claimant.

(3) Without prejudice to the generality of subsection (2) the following kinds of behaviour shall be treated as designed or likely to conceal information or to mislead—

(a) failure without reasonable explanation to produce a passport on request to an immigration officer or to the Secretary of State,

(b) the production of a document which is not a valid passport as if it were,

(c) the destruction, alteration or disposal, in each case without reasonable explanation, of a passport,

(d) the destruction, alteration or disposal, in each case without reasonable explanation, of a ticket or other document connected with travel, and

(e) failure without reasonable explanation to answer a question asked by a deciding authority.

(4) This section also applies to failure by the claimant to take advantage of a reasonable opportunity to make an asylum claim or human rights claim while in a safe country.

(5) This section also applies to failure by the claimant to make an asylum claim or human rights claim before being notified of an immigration decision, unless the claim relies wholly on matters arising after the notification.

(6) This section also applies to failure by the claimant to make an asylum claim or human rights claim before being arrested under an immigration provision, unless—

(a) he had no reasonable opportunity to make the claim before the arrest, or

(b) the claim relies wholly on matters arising after the arrest.”

6

The appellant's case was that his sisters became involved in youth politics in Cameroon on behalf of a group critical of the government. When they were arrested, he attempted to find them and joined street marches and protests. In the event they had fled to the United Kingdom. The appellant claimed that he had been arrested in October 2003 by reason of his association with his sisters. He was able to escape and stayed in hiding to regain his health. On return to Cameroon, he would be identified as one in whom the authorities had an adverse interest and he was at risk of serious harm.

7

The Tribunal considered the question of credibility in considerable detail. The section headed “findings of fact” began with a reference to Section 8 and the conduct to which it was believed to apply. The Tribunal went on to state that it was not accepted that the appellant had escaped from detention in the way he had described. The Tribunal was not satisfied that the appellant had any political profile in Cameroon. It had not been established that the appellant faced serious harm on return to Cameroon.

8

The reasoning in the decision which has given rise to concern is in paragraph 52:

“In all the circumstances, and looking at the evidence in the round, I must apply the appropriate low standard of proof to the Appellant's account. As set out above, I am satisfied that very serious damage has been sustained to [the appellant's] credibility by virtue of the operation of Section 8.”

9

There are many grounds of appeal against the Tribunal's fact-finding exercise, including an alleged failure to give proper weight to the medical evidence, and a failure to give sufficient weight to the in-country evidence when assessing the credibility of the account given. Mr Jay QC, for the appellant, has sought to rely only on the ground relating to the use of section 8. He accepts that a challenge to the Tribunal's finding on credibility on the other grounds would be very difficult to sustain and that, in the absence of the reference to section 8, the decision could not have been challenged. Accordingly, we confine our consideration to section 8.

10

On behalf of the appellant, Mr Jay's general submission is that fact-finding is a judicial responsibility and the evidence must be considered “in the round”. A judicial tribunal should not be told by Parliament how to assess the credibility of witnesses, which is a judicial function. Read literally, section 8(1) leaves the Tribunal no choice; if the relevant behaviour occurred, it must be taken into account as damaging the claimant's credibility. Section 8 offends against the common law principle of legality, it is submitted, as being arbitrary legislation. Secondly, it offends against the constitutional principle of separation of powers.

11

If not struck down on those grounds, section 8(1) should be read down by reading the word “shall” in the sub-section as meaning “may”, it is submitted. Alternatively, by a suggestion that arose in the course of the hearing, the word “potentially” should be read in before the word “damaging”. The section should be read as not restricting the Tribunal's global assessment of credibility. If those submissions fail, Mr Jay argues that a strong warning should be given to judges not to permit section 8 to distort their assessment of credibility as a whole.

12

It appears that the perceived need for...

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