UK - Asylum & Immigration Tribunal, 5 July 2005, SM (Section 8: Judge’s Process) Iran [2005] UKAIT 116

Country of Decision:
Country of Applicant:
Date of Decision:
05-07-2005
Citation:
[2005] UKAIT 116
Additional Citation:
[2006] INLR 149, [2005] Imm AR 673
Court Name:
Asylum & Immigration Tribunal
National / Other Legislative Provisions:
UK - Asylum and Immigration (Treatment of Claimants etc) Act 2004
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Headnote: 
UK Legislation, which required a court to treat evidence in a particular way was not intended to affect the general process of deriving facts from evidence and in particular the principles that all evidence had to be evaluated in the round.
Facts: 

The applicant’s appeal against the refusal of his asylum claim was allowed by an Immigration Judge. In allowing the appeal he specifically rejected the Secretary of State for the Home Department’s representative’s submissions, which had attacked the applicants’s credibility. The Immigration Judge also referred to section 8 of the The Asylum and Immigration (Treatment of Claimants etc.) Act 2004. This section identified certain behaviour which the deciding authority “shall take account, as damaging the claimant´s credibility.” This included:

8. (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

There followed a non-exhaustive list of the kind of behaviour which would fall foul of the law including failing to produce identity documents, producing false documents and failing to claim asylum in a safe third country.

The Secretary of State for the Home Department appealed to the Tribunal on several grounds; including the submission that section 8 considerations should have been the starting point of the credibility assessment.

Decision & Reasoning: 
The Tribunal found that the purpose of section 8 was to reverse dicta appearing in the jurisdiction which suggested that certain matters have no impact at all on a person’s credibility. No citation or reference is given to these dicta. In any event in the view of the Tribunal the legislation had the (possibly unintended) effect of interfering with the rule that the fact finder should look at the evidence in the round.

The Secretary of State’s submission that section 8 should be the starting point was rejected and the Tribunal emphasised that it was the responsibility of the individual decsion maker to engage with all the evidence ‘to try and grasp it as a whole and see how it fits together and whether it is sufficient to discharge the burden of proof.”
Outcome: 

The Immigration Judge’s decision to allow the appeal was not flawed by an error of law and was affirmed by the Tribunal.

Observations/Comments: 

Section 8 was the considered in case of JT (Cameroon) v Secretary of State for the Home Department [2008] EWCA Civ 878. The Court of Appeal approaching the question from the perspective of constitutional law reached a similar view of the matter to the Tribunal.

The Procedure Directive permits member states to accelerate the examination procedure when certain behaviour, some of which is the same as that specified in section 8 is present. However, Art 23 repeats that those basic principle and guarantees are followed.