S v Secretary of State for the Home Department

LORD JUSTICE SEDLEY: The applicant, who is represented today by Ms Naik, is an Ethiopian woman who arrived here on a false passport en route, she says, for the United States, but was left here by her agent and accordingly claimed asylum here. The Home Office refused asylum and an immigration judge rejected an appeal by a decision promulgated on 15 August 2005. That decision was a decision that had been remitted for hearing de novo by an earlier tribunal. It was challenged by way of an application for reconsideration but that was refused by the AIT on 7 September; hence the application to this court.

The application was about two weeks out of time, but it seems to me on the face of it that that lapse of time is adequately explained by the applicant’s search, which is documented, for legal representation and advice. There was also a delay in the renewal of this application, it having been refused on sight of the papers by Buxton LJ on 20 December 2005. That too, seems to me to be sufficiently explained, although there is criticism to be made of the solicitors for having misplaced the decision; but yet again in this field the court is faced with the invidious prospect of making somebody who may have a case for asylum pay for her lawyers’ errors by losing her case without the hearing to which she might otherwise be entitled, and I am not prepared to do that.

The immigration judge disbelieved the applicant’s entire account of having been injured by gunfire or shrapnel in a raid on her and her husband’s home in Addis Ababa by security police in which her husband, an active member of the Oromo Liberation Front, was shot dead; of having thereafter been detained and raped in detention, but having finally escaped when a friend of her husband bribed the prison staff; and of having paid an agent to take her to the United States on a false passport, only to be abandoned here by him, and so forced to claim asylum here instead.

Looking at the immigration judge’s reasons for disbelieving the applicant, reasons which are based upon the finding that a succession of events which others might think entirely credible was implausible, one does begin to wonder how any account, however honest, can come to be believed, especially with the sometimes counter-factual presumptions that are now pressed upon fact finders by section 8 of the 2004 Act. But no issue arises directly upon these findings now. I mention my impression upon reading them simply because it does seem to me that the conclusion in this case that the applicant was not telling the truth was far from a foregone or obvious conclusion.

What Ms Naik now relies upon is a single aspect of the immigration judge’s reasoning, namely that he had reached his finding of total disbelief of the applicant’s account before turning, as he finally did at paragraph 60 of his decision, to the medical evidence which was, on any view, capable of corroborating much of that account. The evidence was the report of a psychiatrist, Dr Steadman, who, being medically qualified, was entitled to report the consistency of a number of minor disfigurements with the account given by the applicant of having been hit by shrapnel and suffering a fall in the course of the assassination of her husband, together with her continuing symptoms of post-traumatic stress disorder.

Buxton LJ, refusing permission to appeal on the papers, took the view that so little of the immigration judge’s adverse decision depended upon the applicant’s performance as a witness that her psychological handicap had not played a material part in it, and that while the relegation of the corroborative evidence to the end of the determination was “not ideal” it was not an error of law. Moreover, the point had not been taken on the application for the AIT for reconsideration, which was the requisite prelude to the application to this court.

Ms Naik accepts that the point has been raised in this court by her for the first time. She submits first that, this being a direct appeal from a de novo decision of an immigration judge, she is not restricted in this way in the points that she can raise. I do not have to decide this beyond holding, as I at present would, that the point is arguable. If it is right, then Ms Naik has a free run. If it is wrong, then she submits in the alternative that it is an obvious and stark point (what is known as a “Robinson” point) which the AIT, upon the application to it, should have picked up of its own motion. That too seems to me arguable.

If upon either footing the point is open in this court, then it seems to me further arguable that the way the decision is configured falls foul of what this court said in the case of Mibanga v SSHD [2005] EWCA Civ 357. Ms Naik has quoted in particular paragraph 30 of that decision:

She relies also upon what the AIT said at paragraph 22 of their decision in HE (DRC – Credibility and Psychiatric Reports) [2004] UKIAT 00321:

It may be said that the structure of the decision, however unfortunate, was not as bad as Ms Naik submits. At paragraph 22, before he reached his conclusions on credibility, the immigration judge had set out in full the material medical findings and their relationship to the account of persecution and ill-treatment given by the applicant. If therefore she has a point, it cannot be that the evidence was totally overlooked by the immigration judge. It has to be that when he returned to it, he not only failed to explain why it made no difference to his findings on credibility, but had so structured his decision that it made it at least appear that it was not going to be able to affect his findings on credibility.

It seems to me, as I have said, that the disbelief of the applicant’s account as in every respect implausible was not an obvious conclusion, so that the possible effect of the medical evidence, had it been weighed in the balance in deciding upon plausibility, cannot be discounted. If that is right, then it seems to me that if she can overcome the other problems that I have referred to, Ms Naik has a real prospect of success. I propose to grant her permission to appeal for those reasons.