[2006] UKAIT 52

• Case title: AS and AA (Effect of previous linked determination)
• Appellant name: AS and AA
• Status of case: Reported
• Hearing date: 22 Mar 2006
• Promulgation date: 6 Jul 2006
• Publication date: 6 Jul 2006
• Last updated on: 26 Nov 2013
• Country: Somalia
• Judges: Mr C M G Ockelton, Mr A Jordan, Mr A L McGeachy
• Keywords: Effect of previous linked determination

The decision

AS and AA (Effect of previous linked determination) Somalia [2006] UKAIT 00052

ASYLUM AND IMMIGRATION TRIBUNAL


THE IMMIGRATION ACTS

Heard at: Field House Date of Hearing: 22 December 2005

Before:

Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal
Senior Immigration Judge Jordan
Senior Immigration Judge McGeachy

Between

Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

and

Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For AS: Mr Omere, instructed by Wilson & Co
For AA: Ms Fielden, instructed by Douglas & Partners
For the Respondent: Mr Deller, Home Office Presenting Officer

The rule that a judicial determination stands as the determination of the issue between the parties does not govern later litigation between different parties. Accordingly, when it is said that a previous determination of the claim or appeal of another claimant is of relevance in assessing a later claim by a different person: (1) the previous determination has no evidential value as such, but (2) its narrative content is to be taken as evidence of what was said and done leading up to that determination; (3) the Tribunal determining the later case is required to make its own decision on the evidence before it; (4) no rule of general law or practice supports the argument that the decision in an earlier claim should bind or be regarded as part of the evidence in an appeal by a different person and therefore (5) the later Tribunal should not regard itself as bound to follow a previous decision in respect of another claimant or to make a decision consistent with such a previous decision; (6) on the other hand, principles of good administration require that decisions should not be needlessly divergent, so (7) the earlier decision should be treated as a starting-point, but (8) the Tribunal will not hesitate to depart from that starting point in every case where the evidence requires it.

DETERMINATION AND REASONS

The issues

1. These two appeals were heard together. In each case, there was a determination by an Adjudicator dismissing the Appellant’s appeal, an application for permission to the Immigration Appeal Tribunal which was refused, and a successful application for Statutory Review of that refusal. The grants of permission to appeal to the Immigration Appeal Tribunal by the High Court in each case operates, following the commencement of the appeals provisions of the 2004 Act, as an order for reconsideration by this Tribunal.

2. In AS’s case, the reasons given by Hughes J for reversing the decision of the Tribunal refusing permission were as follows:

“The question raised by the appeal is whether the Adjudicator was or was not bound to accept that the applicant was Bravanese (and thus, as was conceded, entitled to succeed) given that (1) Omar was his brother, and (2) Omar had been granted asylum on the basis of his Bravanese origin. The Adjudicator held at para 37 that he was not bound by the authorities to conclude as the applicant wished. Whether he was or was not is a question of law, and the appeal on this point, was by no means certain to succeed, is not without real prospects of doing so.”

3. In AA’s case, the reasons given by Pitchford J are as follows:

“This application raises a serious issue to what extent, if any, an Adjudicator may be bound by the findings of a colleague in a related appeal. I consider that it requires determination after full argument. My decision should not be taken as a concluded view on the merits.”

4. Those two decisions set out with clarity the issues now before us. Each of these appeals concerns a Somali applicant for asylum. In each case, the application was based wholly or partly on the applicant’s clan membership. AS claims to be Bravanese and AA claims to be an Ashraf. In each case, it is accepted, for the purposes of this appeal at any rate, that if the clan membership is made out the appeals succeed. In each case, the Appellant had a sibling who had succeeded in securing refugee status as a member of the clan of which the Appellant claimed membership. Siblings belong to the same clan: so in each case the Appellants claim to be entitled to succeed in reliance partly at least on the success of the sibling’s claim.

AS

5. AS claimed asylum at Croydon on 2 March 2004. He said that he was Somali and was born on 18 December 1972. He said that he had left Somalia by boat for Yemen in 1995 and had lived in refugee camps in Yemen until recently. He said that he had left Yemen by air on 28 February 2004 with the assistance of an agent. He said that he had had the telephone number of his brother Omar and had contacted him seven months before he left Yemen. He did not, however, know in advance that he was coming to the United Kingdom. When he arrived in Heathrow Airport the agent saw him through immigration and then took from him the travel documents that had been used for that purpose. The Appellant said that he “met a Somali man passing” and asked how to get in touch with his brother. He went then to stay with his brother. At his first asylum interview, he gave Omar’s full name and said that he had been granted asylum in the United Kingdom. He was not able at that stage to give Omar’s date of birth.

6. There were three further asylum interviews, and the Appellant, now assisted by solicitors, produced documentation supporting his claim. Amongst that documentation is a letter from the Somali Bravanese Association in London, in which the Secretary of that Association writes “to confirm that [AS] is a Somali national of Bravanese ethnic origin”. Appended to that letter is an entry as follows:

“Below are the persons who are certifying and testifying that [AS] is a Somali national of Bravanese ethnic origin.”

There are fifteen names, beginning with Omar described as “brother”, Omar’s wife (who is Omar’s cousin and is described as the Appellant’s cousin) and others who are described as “relative”. There was a similar document produced before the Adjudicator with twenty-two names, some the same as in the earlier document, some different.

7. After considering the Appellant’s claim, the Secretary of State rejected it. He rejected both the Appellant’s assertion that he is Bravanese and his claimed history. He did so on two principal grounds: he did not regard the Appellant’s account of his experiences as plausible in that it appeared to him to run counter to other evidence relating to the experience of Bravanese in Somalia, and he further did not regard it as credible because of discrepancies between accounts given by the Appellant at various stages of his claim. There is no reference in the letter of refusal to Omar or his status.

8. Having refused the Appellant asylum and having decided that the Appellant had no claim to remain in the United Kingdom under provisions of the European Convention on Human Rights, the Secretary of State decided to issue directions for the Appellant’s removal as an illegal entrant. That decision was notified on 27 April 2004. The Appellant appealed against it. The grounds of appeal take issue with the points on which the Secretary of State regarded the Appellant’s story as lacking plausibility or credibility. At ground 4 is this:

“The Appellant maintains that he is a member of the Bravanese minority clan. We are instructed that the Appellant’s brother is in the UK and there are other Bravanese clan members who can vouch for the Appellant’s membership of this clan.”

9. The Appellant’s appeal came before an Adjudicator, Mr N Easterman, on 9 July 2004. As the Adjudicator records, at the outset of the proceedings before him it was agreed by the Respondent’s representative that the only real issue to be determined was whether the Appellant was indeed Bravanese. The Adjudicator heard oral evidence from the Appellant and from Omar. He was shown the documentation relating to Omar’s claim, including transcripts of his asylum interviews. Omar was granted asylum by the Respondent on the basis of his claim and the answers he gave at interview: as is usual, the letter granting Omar asylum did not set out any conclusions of fact supporting the decision.

10. As the Adjudicator noted, there was no formal proof that the Appellant and Omar are brothers. There had, for example, been no DNA testing. The Respondent presented his case on the footing that if the Appellant and Omar were brothers as they said, the Appellant’s lack of credibility was exposed by differences between his own and his brother’s account of events.

11. In the course of legal submissions, the Adjudicator was referred to the judgment of Carnwath J in R v Cardiff County Council ex parte Sears Group Properties Limited [1998] 3 PLR 55, of which he was given a partial transcript, and what is described both in the skeleton argument and in subsequent grounds of appeal as “R v SSHD ex parte Danaei (unreported) 26/3/1997, QBD CO/945/97, Harrison J [copy attached for ease of reference”, but which appears to have been intended as a reference to the decision of Collins J in the case of that name on 20 March 1997 with the reference CO/1020/96, of which a transcript was indeed provided to the Adjudicator. The latter was affirmed by the Court of Appeal: ([1998] INLR 124). For some reason the Adjudicator does not appear to have had his attention drawn to the judgment in the Court of Appeal, and there was no specific reference made to them at the hearing before us. We shall, however, have to mention them in due course.

12. The Adjudicator set out his task and his conclusions of law and fact as follows:

“36. I approach this appeal on the basis that if the appellant is likely to be Bravanese to the low standard required then it is conceded he is likely to face persecution for a Convention reason if returned to Somalia. I approach it on the basis as agreed that any Article 3 human rights claim stands or falls with the asylum claim and that there is no Article 8 claim, which the appellant also agreed.

37. Dealing with what I believe to be an important legal point first, I have considered the cases I was referred to of EX PARTE SEARS GROUP PROPERTIES LIMITED and EX PARTE DANAEI. The first of those cases relates to the intricacies of planning law and when a decision made in relation to a particular decision making authority by another. Without going into the detail of the case, which is complex the decisions that were being sought to be challenged were decisions made by a new body taking over from an old, they were decisions properly taken by the original authority, under the constraints of the law as it was at the time by the appropriate body. Subsequently the new body sought to alter those decisions or at least postpone their implementation. Whilst of course I accept as a general principle of law that if a decision is made by an appropriate body on particular facts, it is not open to that body or its successor to change that decision arbitrarily or possibly at all, I do not see that case as being directly relevant to the circumstances that I am dealing with. I am not making any decision in relation to the brother Omar, whose case has been determined and status granted. I do not feel bound to come to the same conclusion as was reached by anybody looking at the case of Omar, given that I now have additional facts which were not available to the original body. Further the decision that I am making is in relation to a different person on further facts, that relate to him specifically and do not accept that I can be bound by a decision made administratively, where the basis for making the decision is not disclosed. Of course I accept by implication it might be that the decision was reached for the reasons suggested by the appellant’s representative, but there might be other reasons why the decision was reached and in the absence of knowing the reasoning, it does not seem to me that I could be bound by it. In any event as I have said I am not making a decision in the same case. In relation to EX PARTE DANAEI that was an immigration matter, in which it was sought to argue that the Home Secretary could not, without giving additional reasons, ignore the findings of an Adjudicator, in effect overruling his original findings. Again I do not find that to be the same as the situation in this case; the decision I make in this case relates to the appellant not to the brother Omar and I am in possession of additional information, which will certainly affect the findings I make in this case that information was not available when the Secretary of State was making assessments on credibility, if that is what he did, in relation to the case of Omar. Thus, whilst I am most grateful for the helpful arguments advanced in relation to these matters, I do not find that either of the two cases are applicable to the decisions that I have to make in this case. For the avoidance of any doubt I find that I need not be bound by any purported decision in relation to the brother’s clan or sub-clan, if in fact any such decision has been made.

38. In the light of the respondent’s observations during the course of the request for the adjournment, it seems to me accepted that the appellant is in fact the brother of his witness and I will treat him as such. The findings I make in relation to the facts of this matter will be made in relation to the appellant’s case. I have not had a representative here on behalf of his brother and I am not in a position to adjudicate on that case as an independent entity; I can only take into account the evidence of the appellant and his witness, his brother and make assessments, which affect the appellant.

39. There is little or no evidence of the clan membership of the appellant save for the appellant’s evidence, his brother’s evidence and the letter from the Bravanese Community Association. The appellant when first asked about the Bravanese language did not know what it was called, if it is right that he had good reason for not knowing that and if it is right hat he was brought up in a small village where Chimini was not spoken then I am not in a position to say that there is any objective evidence to suggest that he should have known what it was called. I have not been referred to anything in the objective evidence to show that Mr Williams was wrong when he asserted there was nothing in the objective evidence to show that all Bravanese necessarily spoke or at least knew of Chimini. Having said that it is a little strange to me that the appellant should have troubled to have informed himself subsequently of what the language was called. The appellant’s account of being persecuted is certainly consistent with the objective evidence as to what had happened to those from minority clans. I say that because a general account of being constantly under threat and attack from the militias is the account of so many from the minority clans. Having said that I note the number of discrepancies between the appellant’s account and that of his brother’ son areas where I would have expected their accounts to be the same. I would have expected the appellant and his brother to give a similar account of attacks on the home and the shop in 1992, or even if mistaken about the year, not to be in dispute about whether the home and the shop were attacked on the same occasion the ‘first major incident’, particularly when a relation is said to have died in the shop.

40. If the appellant and his family, including his brother, had survived on food buried in the ground and it was one type of food I would have expected them to have agreed on what type of food it was. Whilst it is true there may not be a great deal of difference between the nature of sorghum and maize they are distinctly different items, they have different names in Somali and they are different products. I would expect someone to know the distinction between them and the fact that the appellant’s brother in evidence says that they survived on sorghum, but the Home Office said they survived on maize, suggests to me that the appellant’s brother is tailoring such evidence as he is giving to fit with the account the appellant has given to the Home Office. The same goes for his explanation about what was sold in the shop, his shop; where cosmetics was mentioned and food omitted to the Home Office when he applied for asylum but cosmetics were omitted when he gave evidence before me, in my view to fit with his brother’s account. It is true there were other discrepancies between the account the brother gave before me and that of the appellant and those arose largely in areas which came up in questioning had not been rehearsed in the appellant’s statement or that of his brother, suggesting to me that agreement had been reached over the known matters.

41. The appellant’s account is that there were incidents in 1992 when the house and shop were robbed and looted and a further incident in 1994 and a final incident in 1995, I leave out the minor incidents, which I am aware are said to have taken place throughout and that it was the incident in 1995, when the appellant was stabbed in the leg that caused the family to leave. According to the objective evidence those who had funds left when they could. This family apparently had funds, they had property until 1994, when every stitch was finally looted and even then they had food, which presumably could have been sold and according to the appellant’s brother was sold and they still had money buried underground according to the appellant. Whilst superficially it is attractive to hear the appellant say that the family did not flee earlier because it would be too dangerous and they would have been robbed, but as I understand the objective evidence, staying was dangerous and people were being robbed, held to ransom and killed as indeed the appellant is saying happened to him and the family. There is no obvious reason to me, why the appellant and his family did not flee earlier given that they had the funds on the appellant’s account. The explanation that it was too dangerous has to be weighed against the fact that remaining where they were was also supposedly too dangerous if the objective evidence is to be believed. It is said that the appellant’s account and that of his brother are consistent on the core issues, although it is difficult if these are not core issues, to know what core issues are. it is said that their accounts in relation to buried money are consistent, although the appellant’s brother did not give that account of the funding of the leaving, to the Home Office in his interview.

42. Looking at matters which are definitely not core issues, it is difficult to see why there should be the difference there is in the account of the appellant and his brother, in relation to his brother’s leaving the first camp in the Yemen. The appellant saying that the brother just went, without any notice, and he awoke in effect to find him gone and his brother’s account, that the appellant knew of the departure and his rhetorical ‘why would I hide it from my own brother’. There is also the unlikely and implausible suggestion from the appellant that having spent $3,500 on employing an agent, who said he would take him to Europe, the appellant did not ask to come to England, knowing that his brother was here. Whilst it may not go to the core of the appellant’s account, I find it highly implausible that the appellant would not at least have asked to come to join his brother and the fact that his evidence was clear and unequivocal that he did not, is an indication to me that he is not prepared to tell the truth about his claim. The fact that of all the countries in Europe the agent happened to pick the United Kingdom, which was the one country in which the appellant happened to have a relation, is a coincidence that is too good to be true in my view.

43. I have not outlined all the discrepancies between the appellant’s account and that of his brother, nor have I outlined all the areas where the brother agreed in evidence with the appellant, but was shown to have given a different account to the respondent, when applying for asylum himself. Some more will be seen in the outline of the evidence that I have given in this determination and others in the record of proceedings. My conclusions from these discrepancies and differing accounts is that the appellant and his brother have not been truthful, or wholly truthful, when giving their accounts to the respondent or to me. In making that assessment I am fully aware that a person escaping persecution may not remember the exact sequence of events which led them having to flee, particularly where they have been through traumatic experiences. I am also mindful of the fact that a person genuinely fleeing persecution may exaggerate an account or lie in order to bolster an account out of fear of return. However, even having regard to all of these considerations, I am not satisfied that the appellant has given a credible account of events. It is the cumulative effect of all of these matters that has brought me to that conclusion.

44. In this case the evidence of the appellant’s clan affinity, as I have already said, is only that of himself, his brother and the Somali Community Association. For the reasons I have given above, I am not prepared to accept the evidence of the appellant or his brother in relation to this, the only core matter of the appeal. Further, if the appellant and his brother are capable of putting their heads together to get a similar account for the hearing before me, then I am quite certain they could arrange for a number of people to sign a form on their behalf. Whether they did or not, I have not seem any of the signatories and their evidence has not been tested. In the circumstances that I have found, I am not prepared to accept the evidence of those signatories at face value.

45. When reaching the conclusion I have I have also considered the respondent’s submission that the appellant left Yemen for economic betterment and I ask myself why, if all of his family are in Kenya, apart from his brother who is in the United Kingdom, did the appellant want to spend $3,500, that was not his money, to come to an unknown country in Europe, when he could presumably have sought to gain entry to Kenya and be with his family. I find it hard to believe the level of expenditure would have been the same and I am bound to conclude that his motive for coming to Europe was not necessarily to seek safety from persecution. It seems from his own account that he had been in a refugee camp run by the United Nations for refugees. This finding is incidental because it is not directly relevant to whether the appellant can be safely returned to Somalia.

46. In the above circumstances, I am not satisfied that the appellant has established to the required standard that he has a well-founded fear of persecution for a Convention reason, namely that he is a member of the Bravanese minority clan and likely to be persecuted by the majority clans, if returned to Somalia.”

13. He therefore dismissed the appeal.

14. In the grounds of appeal to the Immigration Appeal Tribunal, the Appellant objected in part to a suggestion, made on the Respondent’s behalf in the course of argument before the Adjudicator, that the grant of refugee status to Omar might have been based on something other than his claimed Bravanese clanship. As is apparent from the extract from the determination set out above, that submission played no part in the Adjudicator’s reasoning. For the purposes of this determination, we accept that the grant of refugee status to Omar was based on his claimed clanship. Nevertheless, we must set out the substance of the grounds of appeal, which are as follows:

“1. It is submitted that the adjudicator erred in law when considering the principle of Legal Certainty emanating from the authorities of Danien [sic] and Sears Gruop Properties [sic]:

PARTICULARS

1.1 The adjudicator erred in law when declaring that basis for the decision in respect of Omar was not disclosed.

1.2 The appellant relies, in this appeal, upon the interview and statements of Omar made in pursuit of his asylum claim, which were before the adjudicator. The totality of this documentary evidence made it plain that the only basis on which Omar claimed asylum was that of being from the Bravanese minority.

1.3 The suggestion by the HOPO that Omar could have been granted asylum because of his sick daughter cannot conceivably be correct since that would not be a reason falling within Article 1A(2) of the Convention. Moreover it is common sense that SSHD does not routinely grant full refugee recognition for a convention reason other than that advanced by a Claimant. Such a situation would be exceptional and there was nothing in the papers relating to Omar which suggested a different Convention reason to that which he relied upon.

1.4 The Home Office who were a party to the appeal were in a position adduce evidence of the actual reason for Omar’s grant of asylum other than being Bravanese. The HOPO was also in a position to take instructions from his employer. He did not do so.

1.5 The Home Office did not produce evidence that they had subsequently formed the view they had got it wrong in Omar’s case and were taking formal steps to remedy the situation.

1.6 Based on these circumstances, applying the low standard of proof in asylum cases, the adjudicator erroneously concluded that the basis on which Omar had been granted asylum had not been disclosed before him. It is submitted that from the totality of the papers relating to Omar’s claim there was no other Convention reason disclosed other than that of race by reason of membership of the Bravanese minority clan.

1.7 It is submitted that the adjudicator’s error in failing to find that the SSHD granted Refugee recognition to Omar on the basis of being Bravanese tainted his findings of fact relating to the evidence the appellant and his brother gave at the hearing.

1.8 It follows that, because of the preceding error of finding that the basis of grant of refugee recognition in the case of Omar was not disclosed in the grant of refugee status, the adjudicator’s whole approach to subsequent findings on discrepancies between the historical accounts of the two brothers was tainted with irrationality and was accordingly unsustainable.”

15. Following the refusal of permission by the IAT, the grounds for Statutory Review repeated the grounds of appeal, supplementing them as follows:

“16. The Claimant relies upon the original grounds for permission to appeal to the IAT and makes the following challenges to the IAT’s findings upon them:

16.1 The IAT sequentially erred in law in upholding the Adjudicator’s decision.

16.1.1 The IAT stated that it was conceded that the adjudicator properly distinguished the authorities relied upon.

16.1.2 It is submitted that what was being strictly conceded at [12] of the grounds was that the adjudicator correctly contrasted a different set of facts in those two cases with those of the instant case. That would be the position with every case where Danien and Sears Group Properties were relied upon for the purposes of the principle of law identified in the judgement.

16.1.3 It is submitted that this concession by the Applicant does not in anyway undermine the underlying theme of the grounds of appeal which was: that the adjudicator failed to properly apply the principle of Legal Certainty which emerge from Danien and Sears Group Properties.

16.1.4 The grounds of appeal to the IAT focus on a spurious theme submitted by the Home Office and relied upon by the adjudicator that the appellant’s brother might have been granted Refugee Recognition on a basis different from that which he applied for asylum. There was no evidence whatsoever for this extreme proposition before the adjudicator. And evidence disclosed with the grounds setting out the exact basis of the brother’s claim for asylum.

16.1.5 It must not be forgotten in this appeal that what was in issue was the appellants racial origin as a member of the Bravanese clan. In general The majority of people in the world share the same racial origin as their siblings (no doubt imponderable exceptions to this can arise).

16.1.6 If the claim for asylum had been on other grounds such as political opinion or religion, matters which are not biologically determined, but normally determined by the past actions of the individual then that prior acceptance by the SSHD of another family as a refugee would not have had the same significance as it did in the instant case.

16.1.6 It is submitted therefore that the adjudicator and IAT did not properly take into account a relevant consideration, namely, that a brother had already been granted asylum on the basis of his racial origin where the Applicant was claiming asylum for being of the same racial origin.

16.1.7 It is not being submitted here that the fact the brother has so been recognised means that it must automatically follow that the applicant must also be recognised as being of the Brava clan. What is being submitted is that the brothers position was a matter of some considerable weight when evaluating the Applicant’s claim to be Bravanese.

16.1.8 That is not to say that the IAT are wrong in their example that in the hypothetical opposite situation where if the brother had been refused asylum that the adjudicator should not consider the appellant’s case on its own merits. Of course the adjudicator should do that.

16.1.9 However in this case it is undeniable that there is considerable merit in the argument that the brother was found to be from the same racial group as that claimed by the appellant. It is therefore a factor that can be properly weighed into the scales when making the factual finding on the Applicants clan origin.

16.1.10 Because there was a spurious finding that the Home Office did not grant asylum on the basis of the brother’s origin within this balancing exercise it could not have been performed properly by the adjudicator.

16.1.11 The rejection of the credibility was based on the discrepancies between the accounts of the applicant and the brother. Whilst that was a relevant consideration and had a negative impact on credibility nonetheless it had to be properly weighed on the other side of the scales against a strong positive factor namely the fact that the brother had already been recognised as a refugee. For all the reasons outlined above this proper balancing exercise did not occur.

16.1.12 It follows that for the reasons outlined the adjudicator’s determination and that of the IAT is tainted with irrationality. The applicant therefore respectfully asks that the IAT determination be quashed.”

16. Again, we should point out that the alleged “spurious finding” to which reference is made in paragraph 16.1.10 is not one that appears in the determination as we read it.

17. In his submissions before us, Mr Omere referred us again to the Cardiff County Council case. He asserted that that case decided that, even where there had been no judicial decision on the matter, the facts underlying an administrative decision should be regarded as binding on all subsequent proceedings to which the authority in question was a party until the decision itself was set aside. He was asked why a decision in favour of a claimant should have that effect, whereas, as is submitted in paragraph 16.1.8 of the grounds for Statutory Review, a decision against another person did not. He was unable to give any clear reason for his view on that point, but reminded us that there was no basis at all for believing that the grant of status to Omar was based on anything other than his claim to be Bravanese.

18. In elaborating the precise status of the decision in Omar’s case, Mr Omere submitted that if he was wrong in saying that a principle of legal certainty required an Adjudicator to consider the decision in Omar’s case as binding on him, it ought nevertheless to be regarded as weighty evidence, and, in addition, evidence which there was no reason to disbelieve, because the Secretary of State had not sought to revoke the decision he had made. In attacking the Adjudicator’s approach to the evidence as a whole, he said that the Adjudicator was wrong even to suspect (as he did in paragraph 37 of his determination) that “there might be other reasons” why the decision in Omar’s case was reached; and that that suspicion fatally flawed his assessment of the evidence as a whole. Further, Mr Omere submitted, none of the discrepancies to which the Adjudicator referred went to the issue of the Appellant’s clan membership.

19. On behalf of the Home Office, Mr Deller indicated that there might be several levels of reasoning for any decision of the Secretary of State, and submitted that there was no duty on the Secretary of State to establish precise facts before granting asylum, and no burden of proof requiring him to provide any such information in a different person’s asylum appeal. If, as was being submitted on behalf of the Appellant, the decision in favour of Omar could not co-exist with a decision against the Appellant, he queried why it was the decision against the Appellant which had to fall. It could not be that decisions in favour of claimants had a characteristic of infallibility which was not shared by decisions against claimants.

20. So far as the Adjudicator’s treatment of the evidence is concerned, Mr Deller submitted that twice in paragraph 37 the Adjudicator had distanced himself from any effect of speculation as to the basis upon which Omar had been granted asylum. The Appellant was entitled to a proper hearing of the evidence in support of his claim. He had had such a hearing, and the Adjudicator had done his job.

AA

21. AA came to the United Kingdom on 28 August 2004 by train. The passport he produced was one he was entitled to use. He was interviewed under caution at Ashford Police Station. He said that he did not know where he had boarded the train and was unable to explain his apparent possession of certain papers. He claimed asylum the following day. He was interviewed then and on at least one subsequent occasion, by which time he was assisted by solicitors. He said that he was an Ashraf, and gave details of events which had caused him and other family members to leave Somalia or Ethiopia in 1992. He said that those who left with him were his mother, his father, his sister, his brother-in-law and himself: “five of us” altogether. There is no record of his having been asked any more detailed questions about his family.

22. The Secretary of State considered his claim to asylum and decided to refuse it. He considered that the Appellant knew too little about the Ashraf and its sub-clans to be credibly regarded as a member of the sub-clan he claimed. He further considered that any difficulties which the Appellant had had in Somalia before 1992 were incidents of the civil war and not of persecution. Other factors caused the Secretary of State to disbelieve the Appellant’s account of his history. Having refused him asylum, the Secretary of State decided to remove him as an illegal entrant. Notification of that decision was given on 16 November 2004.

23. The Appellant appealed. The grounds of appeal challenged the Secretary of State’s conclusions on the Appellant’s credibility and his knowledge of the Ashraf clan structure. They add the following:

“2. The Secretary of State has failed to take into account the fact that the applicant’s sister has already been accepted as being a refugee. She was granted asylum on the 14/3/2003. In her application SEF form she gives details of the applicant as being her brother (copy relevant documents enclosed).”

24. The documents in question include the grant of asylum status to the person in question (whose name we will abbreviate for the purposes of this determination as Ouma) and her children, and her own SEF form, completed by the claimant with the assistance of her solicitors and dated 27 September 2002. (There are also SEF forms for Ouma’s children, but they add nothing to this appeal.) In Ouma’s SEF form she names as one of her brothers, then living at an unknown address in Ethiopia, a person with the same year of birth as the Appellant (month and day not stated) and with a similar name. We say “similar”, because the second element of the name is the same; the third element is the same except for its spelling; but the first is different: Ouma’s form reads “Abdow”, and has been amended to read that, so the spelling is clearly intentional: the Appellant gives that element of his name as “Abdi”. Despite these difficulties, it appears to have been accepted, and we accept for the purposes of this determination, that Ouma is the Appellant’s sister.

25. The Appellant’s appeal came before an Adjudicator, Mr S C D Hulme, on 25 January 2005. He heard oral evidence from the Appellant and from Ouma. He became aware or was told that the grant of refugee status to Ouma followed a successful appeal to another Adjudicator. He was not, however, shown the determination in Ouma’s case. We do not know specifically what submissions were made to the Adjudicator about the relevance of Ouma’s status. There was a full skeleton argument signed by Mr Barcello, counsel for the Appellant before the Adjudicator. The only reference to this issue is at paragraph 11:

“In support of [AA], [Ouma] his sister and a recognised refugee has provided a statement in support of their relationship and will be in attendance at court to give evidence. Her letter granting indefinite leave to remain is at page 96 of the bundle.”

26. Nothing in the skeleton argument suggests that the Adjudicator was bound by the findings made in respect of Ouma or refers to any authority on that issue.

27. In cross-examination, the Presenting Officer appears to have asked questions based on what Ouma said at her interview, a transcript of which was also before the Adjudicator. Having considered the evidence and the submissions made to him, he wrote as follows:

“23. The Appellant’s credibility has been challenged by the Respondent who does not accept that he Appellant is a member of the Ashraf clan. I have examined each area of concern and had regard to what the Appellant has had to say in response.

24. The Appellant’s original story told at interviews in August and September 2004 was extremely vague and lacking in substantial detail.

25. All he said at the police interview in August was that his father and brother were killed, his mother was raped and his teeth were damaged. No other details and no dates.

26. At his screening level 3 interview in August he said that his foot was ripped open and his teeth were broken in 1991.

27. When interviewed in September he said that his father was beaten severely by Siad Barre’s soldiers and the Hawiye clan in 1991, then he (the Appellant) was attacked by Hawiye in 1992 so he left. No mention of him being attacked and beaten in 1991. He said that he and members of his family were sheltered in a hut in the rural area of Afgoye at the time of the attack in 1992. The members of his family were his parents, brother in law, sisters, her children, his brother and his (the Appellant’s) wife. He said that his hands were tied behind his back and he was beaten. He went on to say that his wife at that time was his first wife and that she died. He married again. He said that his parents, sister and brother in law accompanied him to Ethiopia and that it took about one month to get there. He said that the first attack on his family by Hawiye was in November 1991. Having got to Ethiopia they went to Dire Dawa and in 1993 they went to live in a refugee camp in Qabri Batha where they stayed until he left in 2004. In 2001 the Ethiopians set fire to their hut. He supported his family by working as a porter in warehouses.

28. Included in the Appellant’s bundle at pages 7 to 9 is the Appellant’s written statement. It is neither signed nor dated but it was adopted by him at the hearing. In it he talks about his fiancée living with his family in 1991. There is no mention that she ever became his wife or that he married for a second time at a later date. He says that his father was severely beaten by Hawiye militia in 1991. He was also beaten and some of his teeth were knocked out. His leg was also cut with a scythe. He says for the first time that 2 of his sisters were raped on that occasion. He then goes on to mention another attack on the family in 1992 which he says occurred in his father’s shop, not in a hut in a rural area. He says that his mother and 2 of his sisters were also raped. No detailed mention of any attack on himself on this occasion. He says that he had not mentioned the rapes in 1991 or 1992 before because it was too difficult for him. I reject that as plausible as he had told the police in August 2004 that his mother had been raped. No mention then of his sisters suffering the same fate. He left for Ethiopia with other members of his family but he says that he left his fiancée behind – again no mention of her being his wife. He says that it took approximately one year to travel across Somalia to Ethiopia and that they arrived there in 1993. There is no mention of a brother of the Appellant being killed at any time as he had said at the police interview in August. For the first time he said that his father died a few months after the attack in 12992 when en route to Ethiopia. He also said for the first time that he did not live in a camp in Ethiopia despite saying that he did when he was interviewed in September when he was questioned in depth about his stay in the refugee camp. He said that while in Ethiopia he made a living by cutting down trees and selling wood and coal and whatever work he was able to find. No mention of working as a porter in warehouses.

29. Included in the Appellant’s bundle at pages 144 to 148 is a medical report from Dr Nelki who examined the Appellant on 13 January 2005. It states that the Appellant’s family was attacked on 2 occasions; firstly in February 2001 and secondly in April 1992. When interviewed in September 2004 the Appellant had said that the first attack took place in November 1991. The description of the attack in February 1991 is broadly similar to that contained in the Appellant’s written statement which says only that it occurred in 1991. Dr Nelki’s report describes the circumstances of the second attack in April 1992. It says that 4 of the Appellant’s sisters were seized and taken captive and that their whereabouts are unknown. This is the only time that such an allegation has been made; the nearest the Appellant has got to it before is when he said at interview in September that 2 of his sisters were taken (question 25). Dr Nelki’s report says that the men were again beaten up, hit with rifle butts and wooden sticks – the first time that such detail has been given. The report goes on to say that the family fled and that the Appellant fled with his parents, brother, sister, sister in law and 2 children. When interviewed in September he said that 5 of the family fled (question 19).

30. I find from the totality of all of the above mentioned discrepancies in the Appellant’s various recollections of events that his overall credibility is totally undermined.

31. At the answer to question 42 of his interview in September the Appellant said that the Ethiopians set fire to the hut he was in in 2001. When giving evidence he said that his sister, mother, wife and his children were then living with him. When his sister gave evidence before me she initially said that she was living with her husband, sister and brother in Ethiopia but when challenged by Mr Hammonds about what she had said previously at her own asylum interview she said that she was helped by her husband’s brother and said that they were living together in 2 houses just behind each other. She confirmed that she was living with her husband. There is a substantial discrepancy between the evidence of the Appellant and his sister in this respect which causes me to find that their credibility is serious undermined as I find that they have colluded together to present his case. Unfortunately for her, the Appellant’s sister appears to have overlooked what she had said in her own interview. I am aware that the Appellant’s sister has been granted refugee status in the UK. I have not, however, seen my colleague Adjduicator’s Determination in her case. Although she is likely to have been found credible by my colleague that finding is not binding upon me and I have arrived at my own finding of adverse credibility in her case on the particular facts of this appeal.

32. Taking Dr Nelki’s report in the round together with all the evidence I have seen and heard I find that it does not corroborate the Appellant’s story so far as the reason for the injuries upon which Dr Nelki reports. I accept the report at face value and accept that the Appellant displays the scarring on his body as described by the doctor. I do not, however, accept that they are as a result of the attacks alleged by the Appellant as I have found that he is not a credible witness.

33. So far as clan membership is concerned the Appellant merely said when interviewed that he belonged to the Ashraf clan. It was not until he made his statement that he gave details of his claimed sub clan which he said is Sharif Baclawi descended from Hussein. This was confirmed in evidence. According to the Minorities Report prepared by the joint British, Danish and Dutch fact finding mission to Nairobi in September 2000 the correct spelling is Sharif Baalawi. I note from Dr Nelki’s report that the Appellant’s clan is there described as Balyi. When he was interviewed in September 2004 he was questioned about the Hamar groups but was unable to name them. He has explained this by saying that he did know them but he was naming the tribes who lived around Afgoye. I do not accept that as a plausible excuse. I note that one of his answers, namely, Amudi, is, in fact, one of the Shangani groups according to the 2000 Minorities Report. He was also unable to name the Hussein or all of the Hassan groups at interview. When he gave evidence he was, however, able to name the Hussein groups. He said that he was suffering from severe asthma at the time of the interview so he was not able to finish off saying anything. I reject that as implausible as the record of interview is noted that the Appellant then said he was fit and well both at the beginning and end of the interview. It is noted at question 20 that there was a break for water during the interview and that the Appellant used some sort of inhaler but there is nothing to indicate that the Appellant was in any way distressed by his inability to breathe properly. I find that the Appellant’s knowledge, and that he is likely to have rehearsed his answers in readiness for the hearing of his appeal. I do not find him credible and I do not accept that he is a member of the Ashraf clan as he claims.

34. I find from all of the above that the core of the Appellant’s account of persecution lacks credibility and is a fabrication designed to gain access to the UK.

35. As a returned failed asylum seeker the Appellant may well have to suffer some hardship but I do not accept that this will reach the high threshold required by Article 3 of the 1950 Convention. I do not accept that he is a member of a minority clan as he claims and I find that his suffering will be no more than that suffered by the whole population.”

28. The grounds of appeal to the Immigration Appeal Tribunal begin by asserting that “the Adjudicator reasons for rejecting the Appellant’s claimed credibility are perverse”. We must set out the other two grounds in full:

“2. The Adjudicator has failed to properly assess the corroborative evidence of the Appellant’s sister, a recognised refugee

The Appellant’s sister provided her SEF, interview and grant of status letter. Her account in her SEF and at interview (some two years prior to the Appellant’s arrival) accords entirely with the accounts given by the Appellant. The Adjudicator however has dismissed the entire account of the Appellant’s sister and considered there to have been collusion on the basis of one single perceived discrepancy. The Appellant’s sister stated in her SEF that she was living in Ethiopia with her husband. In evidence she stated that they lived together with her sister and brother in 2 houses behind each other. The Adjudicator considers this to be a ‘substantial discrepancy’. It is submitted that this is ambiguous at best and a highly tenuous basis upon which to reach a finding of collusion.

On this basis the Adjudicator has completely overlooked the rest of the sister’s account, even though it is highly corroborative and has been accepted as credible previously. The failure to assess any more of her account has led to an unfair finding of collusion that does not accord at all with the evidence. The suggestion that they colluded in this account 2 years ago is also perverse.

3. The Adjudicator’s assessment of clan membership is perverse.

At paragraph 33, the Adjudicator adopts a similar reasoning for dismissing the Appellant’s evidence regarding clan membership. He states that ‘the Appellant merely said when interviewed that he belonged to the Ashraf clan. It was not until he made his statement that he gave details of his claimed subclan which he said is Sharif Baclawi descended from Hussein’. Unless a person is asked at interview what their subclan is, it is unfair to criticise them for not mentioning it.

Further, the Adjudicator criticises the Appellant for the variety of spellings of the Appellant’s claimed clan. The Appellant does not speak, read or write in the English language. Whilst he is able to state in Somali his clan’s name, he is reliant upon interpreters for spelling. In any event, the variety of spellings is not limited to documents prepared on behalf of the Appellant. Spelling differences extend to the Joint Report on Minorities. It is not uncommon for there to be a variety of different spellings for Somali words.”

29. Permission to appeal having been refused, new grounds were submitted in support of the application for Statutory Review. So far as relevant for present purposes, they are as follows:

“Essence of challenge
2. The Adjudicator fundamentally misdirected himself in law as regards one important aspect of the Claimant’s appeal: that the Claimant’s sister was found by a previous Adjudicator to be from the Ashraf clan. On that basis the sister had her appeal allowed and was granted refugee status. The Claimant’s Adjudicator took the view that a previous finding of that kind was not binding on him contrary to the clear jurisprudence on point. In turn, the IAT failed to recognize this error.

...

The sister’s determination
4. Within her interview on 19 September 2002 the Claimant’s sister stated clearly that she was from the Ashraf clan, detailing the sub clan and sub sub clan, see questions 62-72 of the interview. That same interview was before the Claimant’s Adjudicator:

“when challenged by Mr Hammonds about what she had said previously at her own asylum interview …”
[see paragraph 31 of the determination]

5. Further, the copy documents in respect of the sister’s appeal were attached to the Claimant’s notice of appeal.

6. The Adjudicator in the sister’s determination concluded that whilst parts of the Claimant’s sister’s account were “unreliable” and “exaggerated”:


“I have no difficulty whatsoever in finding that this particular appellant is Somalian and is of the Ashraf sub-clan. I make those findings on the basis of her knowledge of modern Somalian history and the specifics of her sub-clan.”
[see paragraph 14 of the determination and also paragraphs 18 and 23]

…

The Claimant’s determination
8. As set out above, the Adjudicator in the Claimant’s appeal did not have the sister’s determination but knew that throughout her interview the Claimant’s sister claimed she was Ashraf and knew that findings of fact had been made by a previous Adjudicator that were favourable to the Claimant’s sister, as a result of which she had been granted refugee status [see paragraphs 12 and 31 of his determination]. Given the content of the sister’s interview and grant of refugee status, it is highly likely that even without the determination the Claimant’s Adjudicator knew that the appeal would have been allowed on the basis, at the very least, of her Ashraf ethnicity.

9. Both Adjudicators accepted that those of the Ashraf minority clan would be at risk on return if found to be of that clan. In particular the Claimant’s Adjudicator accepted at paragraph 19 that

… minorities are particularly vulnerable to abuses

…

The Adjudicator’s error of law
12. Apart from attacking far too much weight to the only discrepancy in the sister’s evidence as to her living arrangements, the far more fundamental error of law is as follows: the Adjudicator completely misdirected himself in law as to the weight to be attached to the previous Adjudicator’s findings.

13. The Claimant’s Adjudicator concluded at paragraph 31

“Although she is likely to have been found credible by my colleague that finding is not binding upon me and I have arrived at my own finding of adverse credibility in her case on the particular facts of this appeal.”

14. The error is that previous findings by another Appellate Authority which has assessed the evidence and had it tested before it are binding on a subsequent Adjudicator, absent a successful appeal setting aside the determination as flawed or later evidence that is fundamentally undermining and shows the previous determination to be based on a completely erroneous basis.

15. In the same way, once an Adjudicator makes favourable findings as to an Appellant being a refugee, neither the Secretary of State nor any future court can go behind that unless it has been set aside on appeal or later evidence emerges fatally undermining those findings. In such a case however, there would have to be a preliminary hearing and further findings to explain why the previous findings cannot be relied on. Neither appeal from the sister’s determination nor fundamentally undermining evidence of the previous determination exist in this case. Further, there is no reasoning by the current Adjudicator as to on what basis he may disregard the previous determination – simply a bare assertion that it has no binding effect.

16. It is not for a later Adjudicator to simply disregard or not pay due deference to any previous finding of fact or credibility. The later Adjudicator cannot simply disagree with the previous one, which in effect is precisely what has occurred in this case.

30. There is then reference to Devaseelan [2002] UKIAT 00702, [2003] Imm AR 1, R v SSHD ex parte Boafo [2002] EWCA Civ 44, [2002] 1 WLR 1919 and DB [2003] UKIAT 00053.

31. The grounds continue as follows:

“21. It is plain from the above that for the Claimant’s Adjudicator to have held in categorical terms that the previous “finding is not binding upon me” is a misdirection in law and misapplication of the law. In the premises, the part of the Adjudicator’s determination rejecting the Claimant as Ashraf, even though his sister was previously found to be Ashraf, is unsustainable.

22. Had the Adjudicator directed himself correctly, he would have been bound to conclude on the lower standard of proof that the Claimant was in real likelihood as the brother of his sister, who had been found to be Ashraf, also Ashraf. In turn, he would be at risk on return.”

32. At the hearing before us, the determination in Ouma’s case was produced, apparently for the first time. It results from a hearing on 3 February 2003 before an Adjudicator, Mr N J Osborne. The appellant before him was represented, but there was no appearance by the Home Office. The determination records that Ouma also came to the United Kingdom by train, but was unable to say where she got on the train. So far as concerns Ouma’s clan membership, the Adjudicator wrote this:

“14. I note from her SEF interview which is in the respondent’s bundle at section C that in reply to questions 62 to 72 inclusive the appellant gave specific and accurate answers. I consider the replies to those questions to be illuminating in the context of this case and I give them all due significance.

I say from this early stage in my findings that I have no difficulty whatsoever in finding that this particular appellant is Somalian and is of the Ashraf sub-clan. I make those findings on the basis of her knowledge of modern Somalian history and the specifics of her sub-clan.

A reading of the Reasons for Refusal Letter (paragraphs 7 and 8 in particular) leads me to conclude that the respondent either accepts or does not deny that the appellant is a member of the Ashraf clan. In paragraph 8 the respondent states that, “The situation was no worse for members of the Ashraf clan than for the general population and members of any other clan or sub-clan”.

There is certainly no denial in the Reasons for Refusal Letter that the appellant is a member of the clan. In all the circumstances therefore I find that she is a member of the Ashraf sub-clan of the Reer Hamar clan.”

33. In her submissions to us, Ms Fielden took a different approach from that adopted by Mr Omere. She did not suggest that a previous favourable decision would have weight whereas a previous unfavourable decisions should be ignored. She submitted that all previous decisions were absolutely binding, because of the rule that decisions of a competent court stood unless successfully appealed. She referred us to Boafo and to the requirement that the losing party should make use of the appellate process rather than seeking to circumvent the decision. She submitted that from all the authorities, one could derive the theme that if there was an existing determination one could not go behind it.

34. In the present case, as we have seen, the Adjudicator did not have the previous determination before him. Ms Fielden reminded us that he was aware that it existed, and submitted that in those circumstances he had a duty to secure a copy of it before making his own decision. She submitted that failure to do so was itself an error of law, because (if her submission on the binding nature of that previous determination was accepted) the Adjudicator could not make his own decision without being fully aware of the constraints (imposed by the previous decision) under which he was acting.

35. In a slightly less demanding version of her submissions, Ms Fielden asserted that nobody was entitled to go behind an existing determination unless it was either demonstrably flawed or there was fresh material not available to the first Adjudicator. That proposition was derived from Devaseelan: the first determination should be the starting point. It might well be in the present case that the Adjudicator was entitled, on the evidence before him, to disbelieve Ouma’s account of events in Somalia and subsequently, but he needed also to reach a view on whether she and the Appellant were Ashrafs. He had not done so independently of his view on their credibility; and he had not taken into account the previous determination. That determination showed that the previous Adjudicator had himself reached a view that Ouma was an Ashraf as well as that she was at risk of persecution.

36. Mr Deller submitted that the non-production of the previous determination before the Adjudicator was a tactical decision and the Appellant must suffer the consequence of it. Failure to take the contents of that determination into account could not be an error of law by the Adjudicator. Mr Deller was not prepared to concede that Ouma or the Appellant would be entitled to succeed in their claims solely by establishing their clan membership. That was not a position that the Adjudicator in the present case should have taken, and he could not be expected to speculate about the contents of a determination he had not been shown. In fact, now that the determination is available, it transpires that the Adjudicator made a finding of his own in favour of Ouma’s claimed clan membership. That, however, cannot be regarded as concluding the case in this Appellant’s favour.

37. Looking at the general question whether there was a principle that a finding of fact bound findings in another appeal, Mr Deller referred us in particular to Danaei. He submitted that a previous finding in another appeal can only be binding if there is no further evidence. When there is another claim by a different person it is almost certain that there will be further evidence; and, he submitted, further detail on matters on which there has already been evidence amounts to further evidence for these purposes. His suggestion was that the important question to ask is “Is nothing different?”.

The authorities

38. We may begin with the judgment of Collins J in ex parte Danaei. The claimant, an Iranian national, claimed asylum. His claim was refused by the Secretary of State. He appealed to an Adjudicator, who dismissed his appeal but, in the course of his determination, made a number of findings of fact including the following: “I accept that the appellant left Iran because he feared that his life was in danger as a consequence of him having carried on an affair with a married woman”. He was refused leave to appeal to the Immigration Appeal Tribunal and, so far as the appellate process was concerned, the matter stopped there. His solicitors, however, sought to persuade the Secretary of State to grant asylum nevertheless or alternatively to grant exceptional leave to remain. The Secretary of State refused to do so, and in giving his reasons adopted a form of words which Collins J characterised in the following terms:

“It is apparent, therefore, that the Secretary of State has approached this case on the basis that he does not accept the Adjudicator’s findings of fact. He gives reasons for rejecting them, but the reasons are essentially the same as the reasons given in his original letter of March 1994.”

39. In the course of his judgment, Collins J said this:

“Mr Kovats [for the Secretary of State] submits, and I accept, that for the purposes of his decision whether there should be exceptional leave to remain, the Secretary of State is not bound by the findings in this case made by the Adjudicator. What he has to do is to have regard to them but as it seems to me, he must, if he is to disagree with them, to have some material beyond only that which he put before the Adjudicator. The scheme of the 1971 Act is to provide for the Adjudicator to be able to review the Secretary of State’s decisions on fact in order to reach his decision. If the Secretary of State were without more to be able to disregard those findings of fact for the purpose of any subsequent action then, as it seems to me, proper effect would not be given to the role of the Adjudicator. … Here it is not suggested that the findings made by the Adjudicator were themselves in any way irrational or unlawful; they were findings which could properly be reached upon the material that the Adjudicator was considering. The Secretary of State did not agree with them, but that was all.

In those circumstances, there was no good reason to reject them. Of course, the Secretary of State may have further material which he can take into consideration and that may itself provide a reason not to accept the Adjudicator’s findings, but there was no such fresh material in this case.

…

… In my view, the Secretary of State is not entitled to reject those findings unless he has additional material or can show that some matter was not put before the Adjudicator or that the Adjudicator was deceived into reaching the decision that he did reach. None of that material exists in this case.”

40. On the Secretary of State’s appeal, the Court of Appeal agreed with Collins J. By then, the Court of Appeal had itself decided Elhasoglu v SSHD [1999] Imm AR 380, in which it had approved R v SSHD ex parte Alakesan [1997] Imm AR 315, which had been before Collins J. Those were both cases in which the Secretary of State had refused exceptional leave to remain because he had disagreed with the Adjudicator’s assessment of the situation existing in the appellant’s own home country. (These appeals were all decided before the coming into force of the Human Rights Act 1998 and the Immigration and Asylum Act 1999: the granting of leave to remain merited by any Article of the European Convention on Human Rights was therefore a matter for the Secretary of State, not the Adjudicator.) Simon Brown LJ, who gave the leading judgment in Danaei, regarded Elhasoglu and Alakesan as properly distinguishable from the present case because, in cases where the Secretary of State’s decision whether to grant exceptional leave to remain depended on the circumstances in another country at a particular date it was very likely that he would have material additional to that which was before the Adjudicator. Where, however, the question depended on assessment of the appellant’s credibility and the facts individual to him, however, the Secretary of State could not reasonably disagree with the Adjudicator unless (1) the Adjudicator’s factual conclusion was itself demonstrably flawed or irrational; (2) fresh material had since become available to the Secretary of State, such as could realistically have affected the Adjudicator’s findings; or (3) (arguably) the Adjudicator had decided the appeal purely on documents or if, despite having heard oral evidence, his findings of fact owed nothing whatever to any assessment of the witnesses.

41. In reaching those conclusions, Simon Brown LJ expressed the hope that he was not influenced unduly by the Court of Appeal’s decision in R v Warwickshire County Council ex parte Powergen plc (1998) 96 LGR 617 where it had been decided that a highway authority was not entitled to adhere to and act upon its original view that the public would not benefit from a development, when there had been a planning appeal in which the highway authority’s objection had been fully considered and rejected. Simon Brown LJ indicated that the situation in a planning appeal was very different:

“Not least in that a powerful argument arose there that if the highway authority were entitled to maintain their original objection, they could effectively defeat the whole planning process. By contrast, even if the Secretary of State has carte blanche here to re-decide the facts as he maintains, there will be no question of that frustrating the overall scheme of the legislation.”

42. Judge LJ, agreeing with Simon Brown LJ’s conclusion and the reasons for it, said this:

“The desirable objective of an independent scrutiny of decisions in this field would be negated if the Secretary of State were entitled to act merely on his own assertions and reassertions about relevant facts contrary to express findings made at an oral hearing by a special adjudicator who had seen and heard the relevant witnesses. That would approach uncomfortably close to decision-making by executive or administrative dictat. If therefore the Secretary of State is to set aside or ignore a finding on a factual issue which has been considered and evaluated at an oral hearing by the special adjudicator he should explain why he has done so, and he should not do so unless the relevant factual conclusion could itself be impugned on Wednesbury principles, or has been reconsidered in the light of further evidence, or is of limited or negligible significance to the ultimate decision for which he is responsible.”

43. R v Cardiff County Council ex parte Sears is a planning case. The real issue there was whether the respondent, as successor to both the Cardiff City Council as planning authority and the South Glamorgan County Council as highway authority, was bound by planning permission granted some four years previously by the predecessor planning authority and subject only to an agreement with the predecessor highway authority under s278 of the Highways Act 1980 (which enables highway authorities to agree with developers that the latter will fund improvements to roads made necessary by the development) and was therefore not entitled to require further traffic surveys before entering into the agreement. Carnwath J held that, in the circumstances, the new authority’s requirement for a new traffic survey was not unreasonable. But he accepted that there could be discerned from the cases (including Danaei and Powergen), and subject to variations in detail, that:

“where a formal decision has been made on a particular subject matter or issue affecting private rights by a competent public authority, that decision will be regarded as binding on other authorities directly involved, unless and until circumstances change in a way which can reasonably be found to undermine the basis of the original decision”.

44. Boafo is another decision of the Court of Appeal. The Adjudicator had allowed an appeal by the claimant, but had failed to give any directions. The Secretary of State did not appeal from the Adjudicator’s determination but reconsidered the claimant’s application in the light of new information available to him and, as a result, declined to give effect to the Adjudicator’s determination. In his judgment, Auld LJ (with whom Ward and Robert Walker LJJ agreed) took the view that “an unappealed decision of an adjudicator is binding on the parties”. He regarded the presence or absence of directions in the Adjudicator’s determination as having little relevance to its effect as a determination of the issues. He took the view that this case was not one in which the Executive was entitled to reopen a decision without appealing the determination.

45. In Devaseelan, the Tribunal gave guidance on the effect of previous determinations of an appellant’s asylum claim where he subsequently sought to raise a human rights claim based largely on the same facts or evidence. In these circumstances, it would be right to say that the context would be that his previous asylum claim must have been unsuccessful, otherwise he would be unlikely to need to supplement it by a human rights claim. The Tribunal said at paragraph [37] that:

“The first Adjudicator’s determination stands (unchallenged, or not successfully challenged) as an assessment of the claim the Appellant was then making, at the time of that determination. It is not binding on the second Adjudicator, but, on the other hand, the second Adjudicator is not hearing an appeal against it. As an assessment of the matters that were before the first Adjudicator, it should simply be regarded as unquestioned. It may be built upon, and, as a result, the outcome of the hearing before the second Adjudicator may be quite different from what might have been expected from a reading of the first determination only. But it is not the second Adjudicator’s role to consider arguments intended to undermine the first Adjudicator’s determination.”

46. In its detailed guidance, at paragraph [39] and following, the Tribunal indicated that the first Adjudicator’s determination should always be the starting point, because it is “the authoritative assessment of the Appellant’s status at the time it was made”.

47. The guidance given on the use of previous determinations given in Devaseelan was approved by the Court of Appeal in Djebbar v SSHD [2004] EWCA Civ 804, the Court of Appeal particularly noting the Tribunal’s indication that the first determination is not binding on the second Adjudicator, who has the task of deciding independently the appeal that is before him.

48. DB was a case in which the Immigration Appeal Tribunal was concerned with an appeal by the Entry Clearance Officer against a determination by an Adjudicator allowing an appeal against a decision refusing entry clearance for settlement. It was not the first time that the appellants had made such an application or launched such an appeal. They had previously appealed against a similar refusal, and had been unsuccessful. The reason for their lack of success on the first occasion was that the first Adjudicator found that, contrary to what they had claimed, the appellants had relatives in Pakistan. The Adjudicator’s determination in the first appeal was adduced by the Presenting Officer before the Adjudicator who heard the second appeal. The Adjudicator declined to look at it, saying that this was “a de novo application for entry clearance and a de novo hearing”. The Tribunal said this:

“15. There is nothing in Devaseelan which limits its principles to asylum and human rights appeals. There is no reason why they should be so limited. We are satisfied that the principles set out in Devaseelan apply to all categories of appeals coming before Adjudicators and the Tribunal.

16. It follows that the Adjudicator was wrong to disregard the findings in the previous determination, and wrong to take care, as he described it, not to be affected in any way by the previous determination. It would be very unsatisfactory and not in the interests of justice if an Adjudicator paid no regard to a previous determination in such circumstances … . Even though the first appeal related to a decision made on 20 April 2000, it would be wholly artificial to disregard that determination in assessing the merits of the second decision.

17. As the Tribunal emphasised in paragraph 37 in Devaseelan, the first determination stands as an assessment of the claim made as at the date of the determination. It is not binding on the second Adjudicator. The second Adjudicator is not hearing an appeal against it. The first determination may be built on and further evidence may come to light which leads to a different outcome before the second Adjudicator.”

49. Each of these cases concerns the dealings of the Secretary of State, the Tribunal, or some other public authority, with the very person who has been subject to the earlier decision. No party before us cited TK [2004] UKIAT 00149, which considers the status of a previous determination relating to a different appellant but based on similar facts to those claimed in a later appeal, or AC [2005] UKAIT 000124, which considers the status of a grant of status made without a judicial determination.

50. In TK, the instant appeal was by a wife whose husband’s appeal, based on largely the same claimed facts, had been dismissed by an Adjudicator about a year previously. The Tribunal regarded it as “important to note that his evidence [in his wife’s appeal] was precisely that offered at his own appeal hearing, where it had been rejected by the Adjudicator as being untrue”. Part of the determination is concerned with some procedural difficulties and directions relating to the use of the earlier determination. On the issue with which we are concerned, however, the Tribunal said this:

“19. In these circumstances the Tribunal considers that not only was the Adjudicator entitled to read [the first Adjudicator’s] determination, … but was also entitled to conclude that it would be wrong to revisit [the first Adjudicator’s] decision in relation to the Appellant’s husband’s evidence. Were the Adjudicator not entitled to take this course, the following extraordinary circumstance could arise. The head of a family, call him X, claims asylum on the basis of his own account and loses on the grounds that his account is disbelieved. There follows thereafter a succession of separate members of X’s family who each makes his/her own asylum application and each expressly accepts that the risks which they fear are based on the risks to X as head of family. If [counsel for the Appellant’s] submissions were correct, then there could be a succession of hearings where a succession of Adjudicators, each deprived of all previous Adjudicator’s determinations, could be asked to reappraise over and over again the same basic account from X, being an account on which all the successive family members were relying as showing that they were at risk because X was at risk. Unless some very good reason was advanced to the contrary, for example, compelling new evidence to show that X’s evidence (which originally had been disbelieved) was mistakenly appraised by the original Adjudicator, a future Adjudicator is, in the Tribunal’s view, not merely entitled to read the determination in X’s case but also to treat it as determinative as to X’s account.

20. In the present case, no such compelling new evidence is alleged to have been available. It is merely suggested that so far as the Appellant's husband’s account is concerned (which he was tendering to the Adjudicator in exactly the same terms as he tendered it to [the previous Adjudicator]), the Appellant’s husband should have had another chance to persuade another Adjudicator that his story was credible. …

21. We are assisted in reaching this conclusion by the starred Tribunal determination in Devaseelan. Devaseelan is distinguishable to the extent that that case was concerned with a second Adjudicator hearing a second appeal by the same applicant, whereas in the present case the Adjudicator was concerned with the first appeal by the Appellant (the wife) who was relying upon the claimed risk to her husband, whose case had been determined in a previous appeal decided by the [first Adjudicator]. However, the general approach of the Tribunal in paragraphs 37 to 42 of Devaseelan as to the extent to which matters can properly be relitigated are of importance and are of relevance to the present case.”

51. The Tribunal also noted that in fact the second Adjudicator reached his own assessment of the husband’s evidence, which factor assisted in meeting the appellant’s grounds of appeal.

52. In AC, the Appellant’s clan membership was contested. She called as a witness her aunt, who had been granted refugee status following her interview. The Immigration Judge was clearly aware of the grant to the aunt, but found the evidence before him on all other matters to be entirely lacking in credibility. He said this:

“The fact that this aunt managed by deception to mislead the Home Office on an earlier occasion does not mean that I will be similarly misled.”

In refusing to reverse the Immigration Judge’s dismissal of the Appellant’s appeal on reconsideration, the Tribunal noted that the Immigration Judge had found the aunt “singularly untruthful and evasive”. It noted that the grant to the aunt was not the result of any rigorous judicial enquiry.

“We accept that it is likely that in this case the aunt’s refugee status was granted because of clan membership, but we cannot be certain. It is, to a large extent surmise. We do not therefore accept that such a decision is to be treated with the same deference as a reasoned decision following a contested hearing. Of course such a grant must be taken into account as part of the overall evidence. It is not something which can be ignored, and it has not been ignored in this appeal. Our view is, to an extent, fortified by the fact that the appellant’s aunt has a sister in the UK. That sister was refused refugee status and has not appealed. We have no way of knowing why that should be. It is not unreasonable to assume that she is of the same sub-clan as the appellant’s aunt (whatever that may be). We have seen no documentation about the unsuccessful sister’s application. We see no reason why the Immigration Judge must be taken to accept the facts of a situation which is advantageous to the appellant but not when they are disadvantageous.

The Immigration Judge was clearly aware of the status of the appellant’s aunt, he heard evidence from both her and the appellant herself. He has carried out a long detailed consideration of all that evidence and made no error of law. The decision was on the facts. His findings cannot be said to be perverse and nor can he be said to have omitted to consider any relevant evidence.”

As will appear from our discussion below, we think that AC may err a little on the side of deference to the judicial decision; but it can clearly give no comfort to those who suggest that an Immigration Judge is bound by any previous decision or entitled or required to decide the case on the basis of anything other than the evidence before him.

The general law

53. The issues raised in the appeal are frequently argued before an Immigration Judges. In order to give guidance on them we have therefore considered whether there are principles in the general law, outside our own specific jurisdiction, that might be of assistance.

54. Although the rules of evidence do not apply to our proceedings, those rules are based on years (in some cases hundreds of years) of analysis and discussion and, when a matter of principle is involved, cases on the admission of evidence in other civil proceedings may therefore be of interest. Much of the discussion of the admissibility in civil proceedings of decisions reached in other proceedings, both before and after the decision of the Court of Appeal in Hollington v Hewthorn and Co Ltd [1943] KB 587, has centred on the question whether, in law, the fact that D had been convicted of a criminal offence was admissible in civil proceedings as evidence of the facts upon which his conviction must have been based. Hollington v Hewthorn itself was an action for damages arising out of a road traffic accident. The first defendants were the owners and the second defendants, P, was the driver of one of the cars. The plaintiff was the owner of the other car. Unable, because of the death of the driver of that car, to adduce direct evidence of the accident, he sought to rely on P’s conviction for careless driving as evidence of P’s negligence. The Court of Appeal held that the conviction was inadmissible as evidence of P’s negligence. The decision has subsequently been reversed by statute (Civil Evidence Act 1968, s11), but it is an important statement of the law although Goddard LJ’s statement that over a long period there had been a unanimous body of judicial opinion against admissibility rather overstates the case. There are, nevertheless, decisions going back at least to the time of Holt CJ against the admissibility of criminal convictions in civil proceedings against the same individual (R v Warden of the Fleet (1699) 12 Mod 337). Two rationales were suggested. One was that a witness in the criminal proceedings might have been a person who had an interest in the civil proceedings, and so would not be a competent witness in the civil proceedings. To allow evidence of the conviction would therefore be to evade the rule against his competence. That rationale ceased with the passing of the Evidence Act 1843, Lord Denman’s Act, which removed nearly all bars to the competence of witnesses in civil cases. The other rationale was that the previous proceedings were res inter alios acta and thus could not bind the parties to the present proceedings. It is perhaps rightly said that that reason goes more to estoppel than to the admissibility of evidence, but nevertheless the points continued to be made. Indeed, it appears to be the explanation for what otherwise appears to be the exceptional decision in Re Crippen [1911] P 108, where Evans P admitted the evidence of the conviction of Crippen for murder in determining whether his personal representative (Crippen himself having been hanged) should be passed over in the appointment of an administrator of the estate of his wife, who died intestate. As the President pointed out, the personal representative of Crippen stands in his shoes and cannot be regarded as “another” for the purposes of the maxim.

55. The rule in Hollington v Hewthorn appeared to many to be contrary to common sense, and was eventually reversed by statute in s11 of the Civil Evidence Act 1968. It is, however, important to observe that the debate about the correctness of the decision centred on cases where the prior proceedings were the conviction of a criminal offence. It was rarely, if ever, suggested that the outcome of previous civil proceedings should be regarded in subsequent proceedings as evidence of the facts upon which the previous decision must have been based; and it was also clear that an acquittal in previous criminal proceedings was not evidence of the absence of the facts upon which a conviction would have been based. The reason, of course, is that the standard of proof in criminal proceedings is such that the conviction may properly be said to remove any real doubt as to the facts upon which it must have been based.

56. A case sometimes cited as being to the opposite effect is the decision of the Court of Appeal in Hill v Clifford [1907] 2 Ch 236. There, the General Medical Council had, after enquiry, made an order directing the defendants to be removed from the register of dental practitioners. In subsequent proceedings relating to the partnership, the Court of Appeal, reversing the trial judge, allowed the General Medical Council’s finding to be adduced as evidence of the misconduct upon which it had been based. The Court did not, however, decide that the order of the Council was itself direct evidence of the facts found. The majority based its decision on an analogy with the rule of law relating to inquisitions.

57. It might be thought that for the purposes of asylum and immigration appeals an analogy with inquisitions is attractive. The rule, as traditionally stated by old editions of Phipson (eg 8th Edition (1946), Chapter XXXI) and presented by s9 of the Civil Evidence Act 1968 and s7 of the Civil Evidence Act 1995, is as follows:

“Inquisitions, surveys, assessments, reports and returns are admissible, but not generally conclusive, in proof of their contents when made under public authority, and in relation to matters of public interest or concern.”

58. There is no doubt that members of this Tribunal have a public authority. Although in one sense they are deciding matters of public interest or concern, the authority of inquisitions and other records admitted under this rule of evidence derives from their status as having been generated so that the public might make use of them and be able to refer to them: the fact that the public are interested in documents, and are in a position to challenge or dispute them if inaccurate, invests them with a certain amount of authority (see Sturla v Freccia (1880) 5 App Cas 623). There can be little doubt that determinations of Adjudicators and Immigration Judges are not public in that sense; and it is clear that even the published determinations of the Tribunal are not published in order to enable members of the public to be able to challenge findings relating to the individual history of claimants.

59. There is one other area of the general law to which we ought to refer. This is the rule that judgments in rem are binding on the world as to the precise point decided. A categorisation of judgments as either in rem or in personam (or, perhaps more correctly for the purposes of English law, inter partes) has never been decisively settled. It is beyond doubt that some judgments as to the status of individuals are for these purposes judgments in rem and the old cases on outlawry are said to provide examples. On the other hand, inquisitions in lunacy, coroners inquests, and orders made in affiliation proceedings were not treated as conclusive in subsequent proceedings. (See generally Spencer Bower, Turner and Handley, The Doctrine of Res Judicata, 3rd Edition 1996, chapter 9).

Discussion

60. Generally speaking, parties to an action must regard the matter as finally settled between them by a subsisting order of a competent court. This is the rule of res judicata. The same rule applies to certain non-judicial decisions made by authorities with statutory powers to determine issues of fact or of mixed law and fact: Thrasyroulou v Secretary of State for the Environment [1990] 2 AC 273. In that case, however, Lord Bridge, who delivered the principal speech, recognised that the principle of res judicata would not apply if “an intention to exclude that principle can properly be inferred as a matter of construction” of the relevant statute. It is sometimes said that there is no rule of res judicata or issue estoppel in immigration appeals. Technically speaking, that must be right. The fact that there has been a previous unsuccessful application and appeal does not prevent an individual making a new application for relief, whether by way of entry clearance, leave to enter, leave to remain, asylum, or non-removal. In in-country asylum and human rights cases, the possibility of a formal issue estoppel is effectively ruled out by the principle that matters have to be decided as they are at the date of the decision, whether administrative or judicial. That date will, ex hypothesei, be different from any consideration of a previous claim.

61. On the other hand, a decision-maker considering a second application, or second claim, or second proceedings, to which a person involved in earlier proceedings was a party, should no doubt have regard to the previous judgment. There are two reasons. First, it may well summarise what was said on the appellant’s behalf on the earlier occasion. In a jurisdiction such as ours which has no hearsay rule, that material has evidential value of its own. Secondly, it is (so far) the authoritative decision on the matters that were raised at that time. If the parties did not take any opportunity available to them to challenge those findings then, the Tribunal should require a good reason for departing from them now. Considerations of that sort are behind the guidance in Devaseelan, which we set out earlier in this determination. The previous judgment is not binding, but it is not to be ignored. If there is no good reason for departing from it, it must, as between the parties to that litigation, be treated as settling the issues with which it was concerned and the facts on which the determination was based.

62. When the parties to a second appeal are different from the parties to an earlier appeal, the latter consideration does not apply at all. An earlier determination, appearing to decide a fact which may be in issue in a later case, may, however, demand the attention of the court in the later case for a number of reasons.

63. The first, which we mention only for the purpose of excluding it from further discussion, is where the Tribunal has issued country guidance. The purpose of country guidance determinations is to promote consistency of decision-making in relation to the circumstances obtaining in individual countries. Country guidance determinations give no guidance on individual personal facts: the guidance is limited to the general circumstances, or the circumstances for a group of people with a particular characteristic, in the country in question. Nothing that we say in the rest of this determination should be treated as applicable to country guidance cases.

64. We note, however, what was said by Laws LJ in what is perhaps the earliest treatment of country guidance by the Court of Appeal, S and others v SSHD [2002] EWCA Civ 539:

“26. … The IAT intended this decision to be determinative: that is, it should thereafter be followed by Special Adjudicators, and the Tribunal itself, absent evidence of a deterioration in the conditions in Croatia relevant to the circumstances of Serb asylum seekers. Now, the notion of a judicial decision which is binding as to fact is foreign to the common law, save for the limited range of circumstances where the principle of res judicata (and its variant, issue estoppel) applies. … This principle has been evolved – we put the matter summarily – to avoid the vice of successive trials of the same cause or question between the same parties. By contrast, it is also a principle of our law that a party is free to invite the court to reach a different conclusion on a particular factual issue from that reached on the same issue in earlier litigation to which, however, he was a stranger. The first principle supports the public interest in finality in litigation. The second principle supports the ordinary call of justice, that a party have the opportunity to put his case: he is not to be bound by what others might have made of a like, or even identical case.

27. The stance taken by the IAT here, to lay out a determination intended in effect to be binding upon the appellate authorities as to the factual state of affairs in Croatia absent a demonstrable change for the worse vis-à-vis the plight of Serbs, to an extent sacrifices the second principle to the first. By no means entirely: an applicant will of course be heard on any facts particular to his case, and (as the IAT made clear) evidence as to any deterioration in the state of affairs in Croatia would be listened to. Otherwise, however, the debate about the conditions in Croatia generally affecting Serbian returnees or potential returnees has been had and is not for the present to be had again.

28. While in our general law this notion of a factual precedent is exotic, in the context of the IAT’s responsibilities it seems to us in principle to be benign and practical.”

65. There is clearly no suggestion there that the exotic notion of a precedent of fact should be extended in immigration appeals to facts relating to the private history of individuals which might have formed the foundation for previous immigration decisions, whether on appeal or not. Indeed, the decision of the Court of Appeal in S v SSHD was that the determination of the IAT in that case could not stand as having binding force on subsequent appeals because it appeared that it might have been made without appropriate regard to one small item of the copious documentation provided to the Tribunal by the appellants. Although the position may have changed slightly in the subsequent four years, the Court of Appeal’s view clearly was that, for a determination of fact to be binding on those who were not parties to it, stringent conditions needed to be applied.

66. Returning to the reasons which might be given for citing a decision or determination made in an application or appeal by a related claimant, there is surely no reason, in principle or authority, to give the previous determination evidential value to the case now under consideration. The previous determination is not the result of the application of the rigorous requirements of the criminal law; and the fact that a previous court or other decision-maker has reached a view on facts which are in issue in the present appeal is not of itself any evidence as to those facts. On the other hand, in the general interests of good administration, it is probably true to say that decisions should not be unnecessarily divergent. It is that principle of good administration which, so far as we can see, provides the sole basis in logic or on authority for saying that the result of the previous litigation may be relevant in the present appeal.

67. What then is its relevance? It can surely only be this: that the previous decision can be taken as establishing the issue in question unless there is any reason not to take it as establishing that issue in question. It has no evidential effect. It does not even give rise to a presumption. It is simply a starting point. That is, indeed, what was decided in TK, as we have seen. Treating the previous decision in this manner is consistent also with the Cardiff County Council case, where the same individual was involved throughout, but there was no judicial decision: the old decision remains, but only as long as there is no reason for displacing it.

68. We can see no possible basis for the assertion that a determination in one appellant’s case has any binding effect on any other individual. All the authorities, as well as principle, are against that. Still less can we find any reason for saying that favourable decisions are binding but unfavourable decisions have no lasting effect at all. That latter submission, if we may say so, is only too obviously a demonstration of the way in which the appellate process may be the subject of cynical manipulation.

69. In fact, comparison with the considerations relating to the admission of criminal convictions in the proof of civil claims suggests that the reverse may be nearer the correct position. In asylum and human rights appeals, the standard of proof is very low. It suffices, it is usually said, to establish that there is a real risk of the apprehended harm. On the other hand, in refusing a claim, or dismissing an appeal, the Tribunal decides that there is no real risk that the claimant is or will be in the danger he claims. Thus the dismissal of an asylum and human rights appeal indicates a level of certainty about the effect of the evidence that is not apparent in allowing an appeal. We would not press this issue further, but it seems to us to be worthy of mention.

70. The previous determination stands as a determination of the issues between the claimant in that case and the Secretary of State. If the claimant in that case brings another claim, there will need to be a good explanation for why it is said (if it is said) that the second decision, or the basis for it, should be different from the conclusion reached in the earlier case. But, by contrast, the earlier decision can be nothing more than the background or the starting point for the determination of a claim made by a different person altogether.

71. It would be dangerous for us to attempt to set out what the factors would be that would entitle or require the Tribunal to depart from the earlier finding in a later case. Obviously one factor, relevant in some cases although not in others, will be the passage of time. Another factor, which is likely to be of importance in a very great many cases, is simply whether the evidence is different. Evidence available to the earlier decision-maker may be reinforced, supplemented, contradicted, effectively withdrawn or simply be not available to the second decision-maker. It is the very fact that he is required to make his independent decision on the evidence before him that makes it so clear that it would not be right for him simply to rely slavishly on a decision made by someone else. We can see no good reason in general why, if a beneficial earlier decision is said to be relevant, the beneficiary of that decision should not give evidence before the second Tribunal and be subject to cross-examination if the Secretary of State chooses to challenge the evidence before the second Tribunal. It is for the claimant in the second case to prove his case on the evidence, and if it is clear that available evidence is not being adduced, the Tribunal is entitled to draw appropriate conclusions.

72. There is one final point we would make. As we have said above, the contents of a previous determination or decision may be of value as evidence of what was said before that decision was reached. The decision itself, however, is only a starting point for the second Tribunal. It is the point from which a departure may be made. Crucially, the conclusion of the previous decision-maker is not in itself any evidence of the facts upon which the conclusions appears to have been based.

73. The result may be, as occurred in the cases before us and in TK and AC, that the second decision is on its facts is consistent with the first. That is, in our view, no reason for thinking that the first decision rather than the second is correct. It is for the Respondent to decide, in such circumstances, whether he can or should seek to change the first decision or its effect, in the light of the further or different information or evidence that supported the second decision. We are not called upon to make any further comment in this determination about how that is to be done. We note only that, as Danaei shows, and as is indicated also by R v SSHD ex parte Momin Ali [1984] I WLR 664, the Secretary of State may be entitled to depart from the decision of the Tribunal, but only for good reason and on the clearest evidence.

Decisions

74. In AS’s case, there had been no previous judicial decision. We entirely reject the submission that the Adjudicator was, in making his determination, influenced by any hypothesis as to the basis upon which the Appellant’s brother Omar had been granted asylum. It is right to say that he did not treat the decision granting Omar asylum as the starting point for his own decision, but it appears to us that he gave it all the credit that it deserved. He heard evidence pertaining to the claim of the Appellant before him, including evidence from Omar. He was entirely entitled to reach the conclusions he did on that evidence insofar as it related to the claim of the Appellant before him. If, which we doubt, he made an error of law in his treatment of the decision in relation to Omar, it was immaterial, because, as his determination shows, he would have been bound to reach the same conclusion on consideration of the evidence as a whole.

75. In AA’s case, there had been a previous judicial determination. We reject the suggestion that it was for the Home Office to produce it, or for the Adjudicator to enquire for it. The case before the Adjudicator was that of the Appellant and the Adjudicator was to determine it on the material before him. The position is simply that a determination in Ouma’s case was not before him and in those circumstances he did not err in law by failing to take account of its contents. Whether he had the determination or not, we also reject the submission that it was binding on him in the sense that it regulated, or ought to have regulated, his determination of the appeal of the Appellant before him. He was bound to determine that Appellant’s appeal on the whole of the evidence before him, as an independent judge of fact and law. He did exactly that.

76. For the avoidance of doubt, we do not consider that the position would have been materially different if he had had the determination in Ouma’s case before him. He would have seen from it that the Adjudicator had decided that Ouma was a member of the clan she claimed, but that that conclusion had been reached from a starting point that, in her case, the Secretary of State chose not to question it. Although in those circumstances he ought to have treated the determination in Ouma’s case as the starting point, there was so much extra evidence before him that he would have been bound to move away from the starting point. When he had done that, the mere fact that on other evidence (or the lack of it) another Adjudicator had found that Ouma was of the clan she claimed could have no conceivable impact on his own task.

77. For the foregoing reasons, we find that neither Adjudicator made a material error of law and we accordingly affirm their determinations dismissing these appeals.






C M G OCKELTON
DEPUTY PRESIDENT
Date: