S v Secretary of State for the Home Department

The applicant is a 29-year-old citizen of Sudan, who sought asylum in the United Kingdom in June 2004. The Secretary of State refused his claim, and an appeal to an adjudicator was dismissed. Permission to appeal was granted to the Immigration Appeal Tribunal, but the appeal took effect as a reconsideration by the Asylum and Immigration Tribunal under the transitional provisions that applied following the change in statutory regime in April 2005. In its determination on the reconsideration, promulgated on 24 November 2005, the tribunal upheld the adjudicator's decision. Application is now made for permission to appeal against the tribunal's determination. Permission was refused by the tribunal and by Carnworth LJ on consideration of the papers.

The applicant claimed to be a member of the Fur clan or tribe, and a farmer in the Darfur region of Sudan. He said that his family had been harassed by Arab tribes. He had become a supporter of the Sudanese Liberation Movement ("the SLM") and had been arrested and detained once in November 2003 and again in March 2004. He had managed to escape detention on the second occasion, when the vehicle in which he was being transferred came under fire. He had then fled the country.

The adjudicator made extensive adverse credibility findings. In paragraph 21, he stated that as he had found the applicant's account unreliable for other reasons which followed, the applicant had not proved his case that he was a member of the Fur clan. In paragraphs 24 to 47 the adjudicator identified numerous inconsistencies and implausibility in the applicant's account as to harassment, his support for the SLM, his detentions, his escape from the second detention and his departure from the country, all of which were said to provide reasons in support of the conclusion that he could not be regarded as a credible witness and his factual account was unreliable. He found inter alia that the applicant had provided a generally unreliable account as to whether he was a supporter or a member of the SLM. The adjudicator went on to say in the alternative that even if he had found the account credible, there was a sufficiency of protection in Khartoum and the internal flight alternative was open.

The grounds on which permission was granted to appeal against the adjudicator's decision were two-fold. In summary, first that the adjudicator had been wrong to depart, without giving the applicant an opportunity of dealing with the points, from the Secretary of State's acceptance that he was a member of the Fur tribe and was a low-level supporter of the SLM; secondly, that the adjudicator had failed to give sufficient reasons as to how internal relocation was available.

As to the first point, the tribunal held on reconsideration that the adjudicator's failure to raise the point concerning membership of the Fur tribe was an error of law, but it was not material to the decision, because being a Fur did not in itself present some free-standing or heightened risk. The tribunal found no error in relation to the question of support for the SLM, since the adjudicator was entitled to embark, as he did, on the issue of support for or membership of the SLM in his overall assessment of the evidence. In any event, the point made no material difference to the assessment of risk on return.

As to the second matter the tribunal held that, absent any particular evidence that the state was persecuting or ill-treating the Fur, or that there was any cause to have adverse interest in the applicant in Khartoum, there had been no failure to address internal relocation in the factual context as found.

In the grounds of appeal to this court, various complaints are made about the tribunal's decision on those matters. Most of them do not impress me, but I think it unnecessary to deal with those matters since, for the purposes of this renewal hearing, Mr Waite had focused on one main issue, albeit it has alternative limbs to it, concerning the tribunal's failure to consider the adjudicator's credibility findings on issues other than membership of the Fur tribe. They focus in particular on the tribunal's refusal to grant permission to amend the grounds before them, so as to allow a more general challenge to the adjudicator's credibility findings.

I should explain that Mr Waite has taken over from Mr Payne, counsel who appeared before the tribunal and who settled the grounds of appeal and the original skeleton argument to this court. Mr Payne had another professional commitment today, but has assisted the court by the provision of a witness statement, to which I will refer in a moment, about...