ST (Libya) v Secretary of State for the Home Department

LORD JUSTICE SEDLEY: This is an application for permission to appeal against the refusal of the Asylum and Immigration Tribunal to reconsider the adverse determination of an Immigration Judge, Mr Sarsfield, itself given upon a reconsideration of the applicant’s asylum claim.

His claim that he was at risk of persecution in Libya as a fundamentalist Muslim was disbelieved not because fundamentalist Muslims do not face such a risk in Libya but because the Immigration Judge wholly disbelieved the applicant’s account of himself and his history. Miss Webber in carefully drafted grounds and a precise skeleton argument has criticised almost every aspect of the Immigration Judge’s fact finding. Parts of it, she submits, are irrational; parts perversely hold perfectly credible things to be incredible; parts overlook or misunderstand the evidence; parts introduce new grounds of disbelief which were never put to the applicant; and in one respect she submits new evidence shows the Immigration Judge’s disbelief to have been unjustified.

Sir Henry Brooke, however, refused permission on the papers because:

“While there is some merit in some of the points that are raised this is in essence a challenge to findings of fact.”

Miss Webber accepts this but seeks to argue that the fact-finding exercise itself has gone beyond the limits set by law. It seems to me that in one respect at least she has an arguable case. In paragraph 20 the Immigration Judge at the Home Office’s invitation (see paragraph 14 of his decision) makes an adverse credibility finding pursuant to section 8(4) of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004. Subsections (1) and (4) of Section 8 say this:

“(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.

[…]

“(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.”

The Immigration Judge said at paragraph 20:

“Under s.8(4) of the Act I consider the following undermines and damages his credibility:

(a)

He has failed to take advantage of the opportunity to claim asylum in a safe country, namely, France, when he arrived by ship and, by his own admission, departed for the UK having changed lorries.

(b)

he said he and the agent agreed he was going to the UK (Q58) and I conclude that he had no intention of claiming asylum anywhere else.”

Section 8 is a problematic provision on which there is, so far, little case law. I cannot at the moment think of any other statute which seeks to prescribe how a judicial fact-finder is to go about finding facts. In many respects nonetheless Section 8 does no more than rehearse things that a fact-finder will anyway have regard to. But subsection (4) is not quite in that class. It alters the consequence of a failure to seek asylum in a safe third country from removal to that country under the 1990 Dublin Convention to a potential ground for disbelieving the claim when it is eventually made in this country.

Neither the intrinsic logic nor the forensic effect of this provision is immediately obvious. The requirement is to take the failure into account but to what purpose and effect is not prescribed. It seems to me arguable that there has to be some logical nexus between the particular failure and its circumstances and the applicant’s general credibility before it can work against him under Section 8. It may not be enough, in other words, to say, as the Immigration Judge has arguably done here, that solely because the applicant has failed to claim asylum in a safe third country when he had a reasonable opportunity to do so he is less entitled than he would otherwise be to be believed about the risks he faces at home.

If Miss Webber’s argument on Section 8 were successful, she would still face a colossal set of other adverse findings of fact on which her case might very well founder. I am not, however, prepared at present for my part to say that this would necessarily be fatal. The Section 8 point seems to me of sufficient importance to merit this court’s attention in any event but, perhaps more importantly, there are two possible views about the relationship of that issue to the totality of the Immigration Judge’s fact findings. One is that the Section 8 point is simply a drop in the ocean and that the claim remains doomed. The other (to change the metaphor) is that it is the thirteenth chime of the clock, casting doubt not only on its own reliability but on that of the other chimes as well. To support the latter it will of course be necessary for Miss Webber to argue that the main body of adverse findings is or at least may well be vitiated by other errors of the kind that I have summarised. As to this I would simply adopt for the present what Sir Henry Brooke wrote; that is to say, that there is some merit in the points. That may enough if, but I suspect only if, there is also a frank error of law in relation to Section 8. All this, however, will be open to argument by Miss Webber as she considers fit upon the appeal.

For these reasons I would grant permission to appeal on the grounds at large, albeit for the purpose and in the context which I have sought to indicate.

If the application which is before this court to adduce photographic evidence is to be pursued (and I would leave it to the full court to decide whether it may be), a properly verified explanation of the failure to put it before the Immigration Judge will be required and on sufficient notice to enable the Home Office to respond to it. F or my part however I doubt whether evidence of a claimant setting out to make himself a refugee is likely to assist him greatly.

SIR PAUL KENNEDY: I agree.