UK - Court of Appeal, 28 July 2008, JT (Cameroon) v Secretary of State for the Home Department [2008] EWCA Civ 878

Facts:

The applicant was a citizen of Cameroon who claimed asylum in the UK on the basis that he had been persecuted as a result of his sisters’ involvement in youth politics, which had resulted in his arrest after his sisters had fled to the UK.  His application and appeal were dismissed on the basis that his account was not believed. He appealed to the Court of Appeal arguing that the assessment of his credibility contained a number of errors of law. His submissions to the Court concentrated on the judge’s application of section 8 of the Asylum and Immigration (Treatment of Claimants) Act 2004.

Decision & reasoning:

The Court of Appeal allowed the appeal and remitted the case for reconsideration by the Tribunal on the basis that the judge in the applicant’s appeal erred in the assessment of credibility as a result of a misapplication of Asylum and Immigration (Treatment of Claimants) Act 2004, section 8.

The applicant submitted that the legislation preventing judges from assessing credibility in the round and inappropriately directed a judicial tribunal how to assess the credibility of witnesses. It therefore offended the constitutional principle of legality and the principle of the separation of powers.

The Court held that in interpreting an act of Parliament the Court must have due regard to the principle of the sovereignty of Parliament, alongside the principle of legality. It held that “section 8 can…be construed in a way which does not offend against constitutional principles. It plainly has its dangers, first, if it is read as a direction as to how fact-finding should be conducted, which in my judgment it is not, and, in any event, in distorting the fact-finding exercise by an undue concentration on minutiae which may arise under the section at the expense of, and as a distraction from, an overall assessment. Decision-makers should guard against that. A global assessment of credibility is required (R (Sivakumar) v Secretary of State for the Home Department [2003] UKHL 14)."

The Court rejected the applicant’s submission that the word "shall"  should be interpreted as meaning "may". Rather, it held that “the section 8 factors shall be taken into account in assessing credibility, and are capable of damaging it, but the section does not dictate that relevant damage to credibility inevitably results. Telling lies does damage credibility and the wording was adopted, probably with that in mind, by way of explanation. However, it is the "behaviour" of which "account" shall be taken and, in order to ensure that the principle of legality was respected, it should only be considered to “potentially” damage credibility."

“Section 8 can thus be construed as not offending against constitutional principles. It is no more than a reminder to fact-finding tribunals that conduct coming within the categories stated in section 8 shall be taken into account in assessing credibility. If there was a tendency for tribunals simply to ignore these matters when assessing credibility, they were in error. It is necessary to take account of them. However, at one end of the spectrum, there may, unusually, be cases in which conduct of the kind identified in section 8 is held to carry no weight at all in the overall assessment of credibility on the particular facts. I do not consider the section prevents that finding in an appropriate case. Subject to that,..[w]here section 8 matters are held to be entitled to some weight, the weight to be given to them is entirely a matter for the fact-finder.”

“Issues may arise as to precisely what conduct is capable of coming within section 8, and as to the relevance of that conduct to assessment of credibility in a particular case, but it is not, in my view, necessary to go into further detail to determine this appeal. Safeguards are incorporated within the wording of the sub-sections.”

Outcome:

Appeal allowed and remitted to the Tribunal for reconsideration.

Observations/comments:

Obiter Comments: Laws, L.J. in a concurring judgment held that he would interpret section 8 to mean that the conduct only “potentially” damaged credibility.

Section 8 provides that:

(1) In determining whether to believe a statement made by or on behalf of a person who makes an asylum claim or a human rights claim, a deciding authority shall take account, as damaging the claimant's credibility, of any behaviour to which this section applies.

(2) This section applies to any behaviour by the claimant that the deciding authority thinks –
(a)  is designed or likely to conceal information,
(b)  is designed or likely to mislead, or
(c)  is designed or likely to obstruct or delay the handling or resolution of the claim or the taking of a decision in relation to the claimant.

(3) Without prejudice to the generality of subsection (2) the following kinds of behaviour shall be treated as designed or likely to conceal information or to mislead-
(a) failure without reasonable explanation to produce a passport on request to an immigration officer or to the Secretary of State,
(b) the production of a document which is not a valid passport as if it were,
(c) the destruction, alteration or disposal, in each case without reasonable explanation, of a passport,
(d) the destruction, alteration or disposal, in each case without reasonable explanation, of a ticket or other document connected with travel, and

(e) failure without reasonable explanation to answer a question asked by a deciding authority.

(4) This section also applies to failure by the claimant to take advantage of a reasonable opportunity to make an asylum claim or human rights claim while in a safe country.

(5) This section also applies to failure by the claimant to make an asylum claim or human rights claim before being notified of an immigration decision, unless the claim relies wholly on matters arising after the notification.

(6) This section also applies to failure by the claimant to make an asylum claim or human rights claim before being arrested under an immigration provision, unless –
(a) he had no reasonable opportunity to make the claim before the arrest, or
(b) the claim relies wholly on matters arising after the arrest."

See also the separate summary of the decision in SM (Section 8: Judge's Process ) Iran [2005] UKAIT 116