Administration of justice – Human rights – Asylum and immigration tribunal

MA (Somalia) (respondent) v Secretary of State for the Home Department (appellant): SC (Lords Phillips (president), Walker, Mance, Sir John Dyson, Lady Hale): 24 November 2010

The appellant secretary of state appealed against a decision ([2010] EWCA Civ 426, [2010] Imm AR 563) reversing the Asylum and Immigration Tribunal’s (AIT) determination that an asylum claim made by the respondent Somali citizen (M) could be refused.

M had unsuccessfully claimed asylum but was granted leave to remain. He later committed a crime and was sentenced to eight years’ imprisonment. The secretary of state made a deportation order and M was detained pending deportation. M made a fresh asylum claim, which the secretary of state refused. M appealed to the AIT. The AIT noted that Mogadishu, to which M would be returned if deported, was not safe, although it could be considered safe for those with connections with powerful actors in the city. It disbelieved much of M’s evidence. The AIT directed itself that even if an appellant told lies he could still show that he would be at risk on return of treatment contrary to article 3 of the European Convention on Human Rights 1950: his evidence had to be considered with other evidence. It held that M had lied regarding his connections in Mogadishu and so the possibility of his being a person with connections could not be excluded. It therefore held that M would not necessarily be at risk on return, and dismissed his appeal. The Court of Appeal held that the AIT had erred by not reaching a conclusion on the question of risk because of M's lies. It also criticised the AIT’s failure to refer to the fact that M had spent years in prison or detention in the UK, which was relevant to whether he might have had contacts in Mogadishu. The court considered that, had the AIT taken that fact into account, it would have concluded that M would be at risk if returned, and reversed the AIT’s decision.

Held: (1) The Court of Appeal had acknowledged that the AIT had directed itself correctly in accordance with GM (Eritrea) v Secretary of State for the Home Department [2008] EWCA Civ 833, but had applied GM incorrectly, GM considered. It had been wrong to interpret the determination as if the AIT was saying that it was dismissing the appeal because M’s account was incredible. In the light of the AIT’s clear and impeccable self-direction, and having regard to the need for restraint in relation to appeals from specialist tribunals, the court should have been very slow to reach the conclusion that it had, AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49, [2008] 1 AC 678 followed. It should only have interpreted the relevant paragraphs in that way if there was no doubt that that was what they meant. If a tribunal correctly articulated a self-direction, the reviewing court should be slow to find that it had failed to apply the direction, particularly where the effect of such a failure was that the tribunal would be found to have done precisely the opposite of what it said it was going to do. There had been no need to interpret the paragraphs in the way the court had: there was an interpretation of them that was consistent with the self-direction and was unimpeachable. All the AIT had been saying was that, because M had not told the truth about his links, the possibility that he was a person with connections could not be excluded: he had not discharged the burden of proof which the AIT had said correctly rested on him (see paragraphs 42-48 of judgment).

(2) The AIT had not mentioned the fact of M’s detention in its determination, but it had been well aware of it. There was no warrant for holding that it had failed to have regard to that fact. The AIT had said that it had considered the entirety of the evidence, and the determination had been detailed and careful. The court should therefore have been slow to conclude that the AIT had not taken the fact into account. Further, M’s own evidence had shown that he had been able to communicate from prison; in the circumstances, the AIT was likely to have thought that the fact of M’s detention had not prevented him from maintaining connections with the outside world. Nor was it inevitable that the deprivation of liberty would have prevented M from maintaining links: it was possible, but a matter for the AIT to assess on the evidence (paragraphs 49-50).

(3) (Obiter) There had been discussion of the propriety of applying the civil test of the balance of probabilities to the proof of past and existing facts in article 3 cases, R v Immigration Appeal Tribunal Ex p Jonah [1985] Imm AR 7 QBD, R v Secretary of State for the Home Department Ex p Kaja [1995] Imm AR 1 IAT, Horvath v Secretary of State for the Home Department [2000] Imm AR 205 CA (Civ Div) and Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449 CA (Civ Div) considered. The Supreme Court expressed no view, but considered it desirable for it to decide the point authoritatively on another occasion (paragraphs 12-20).

Appeal allowed.

Elisabeth Laing QC, Deok Joo Rhee (instructed by Treasury Solicitor) for the appellant; Richard Drabble QC, Graham Denholm (instructed by CLC) for the respondent.