IMMIGRATION


Appeals - asylum seekers - credibility - fresh evidence - issue estoppel - res judicata - different parties pursuing appeals



Gustavo Suarez Ocampo v Secretary of State for the Home Department: CA (Civ Div) (Lords Justice Auld, Rix, Hooper):

4 October 2006



Asylum seeker (O) appealed against the decision of the Asylum and Immigration Tribunal to refuse his asylum appeal following a 'reconsideration' hearing.



O's daughter had been granted refugee status after she had successfully appealed to a special adjudicator against the respondent secretary of state's refusal of her asylum claim.



The cases of O and his daughter in their respective appeals had been similar. It was claimed that O, who had been serving as a police officer in Colombia, had been threatened and attacked by persons connected to the main Colombian guerrilla movement after he had been involved in the arrest of a senior narcotics trafficker who had significant links with the movement. Furthermore, it was asserted that after he had fled the country, his daughter had been threatened with death because of her relationship to him.



Both O and his daughter gave evidence in the daughter's appeal, and the adjudicator found that evidence to be credible. At the hearing of O's appeal before the tribunal, the secretary of state sought to rely on 'new and compelling' evidence in the form of a copy of a record of an interview given by O in the course of his application for asylum that, according to the secretary of state, showed material inconsistencies between his account then and the account that he had given before the adjudicator in support of his daughter's successful appeal.



The tribunal rejected the plea of res judicata or issue estoppel advanced by O in respect of his daughter's evidence in her appeal and, approaching its decision along the lines of Devaseelan v Secretary of State for the Home Department 2002 UKIAT 702, 2003 Imm AR 1, dismissed O's appeal, having accepted the 'new and compelling' evidence relied on by the secretary of state. O argued that he was entitled to rely on res judicata and cognate principles in respect of his daughter's refugee status as a result of the adjudicator accepting her evidence and, in consequence, allowing her appeal.



Held, it was at the very least doubtful whether the principles of res judicata or issue estoppel had any application, certainly in their full rigour, to appeals before immigration tribunals, any more than they did to successive claims for judicial review. The Devaseelan guidelines were relevant to cases like this case where the parties involved were not the same but there was a material overlap of evidence (Devaseelan applied).



Clearly, the guidelines might need adaptation according to the nature of the new evidence, the circumstances in which it was given or not given in the earlier proceeding, and its materiality to securing a just outcome in the second appeal along with consistency in the maintenance of firm immigration control. It should also be borne in mind that the admission of new evidence might, as a matter of fairness, operate for, as well as against, a claimant for asylum.



Therefore, the tribunal had rightly rejected any application in the circumstances of the case of the strict principles of res judicata or issue estoppel. O's acceptance that, if he could not succeed on his arguments, he could not overcome the materiality of the inconsistencies thrown up by the new evidence was an inescapable acknowledgement that justice or fairness would not be served by allowing the instant appeal.



Appeal dismissed.

Declan O'Callaghan (instructed by Selva & Co) for the appellant; Nicola Greaney (instructed by the Treasury Solicitor) for the respondent.