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Immigration: new reported decisions, conditional appeal decisions, and credibility

Immigration: -new reported decisions on new matters, conditional appeal decisions and credibility

Mahmud (S 85 NIAA 2002 – ‘new matter’ (2017) UKUT 00488 (IAC)

1. Whether something is or is not a new matter goes to the jurisdiction of the First-tier Tribunal in the appeal and the first-tier Tribunal must, therefore, determine for itself the issue. It must not refer the matter back to the Secretary of State to determine.1. Whether something is or is not a new matter goes to the jurisdiction of the First-tier Tribunal in the appeal and the first-tier Tribunal must, therefore, determine for itself the issue. It must not refer the matter back to the Secretary of State to determine.

2. A new matter is a matter which constitutes a ground of appeal of a kind listed in section 84 of the Nationality Immigration and Asylum Act 2002. Constituting a ground of appeal means that it must contain a matter which could raise or establish a listed ground of appeal. A matter is the factual substance of the claim. A ground of appeal is the legal basis on which the facts in any given matter called for the basis of a challenge to the decision under appeal.

3. In practice, a new matter is a factual matrix which has not previously been considered by the Secretary of State in the context of the decision in section 82(1) or a statement made by the appellant under section 120. This requires the matter to be factually distinct from that previously raised by an appellant, as opposed to further or better evidence of an existing matter. The assessment will always be fact sensitive.

HH (conditional appeal decisions) Somalia (2017) UKU 00490 (IAC)HH (conditional appeal decisions) Somalia (2017) UKU 00490 (IAC)

1. the scheme of sections 82 to 85 of the Nationality, Immigration and Asylum Act 2002 does not permit an appeal to be conditionally allowed or dismissed. It must be either allowed or dismissed.

2. Even an in entry clearance cases, section 85 (4) allows post-decision evidence provided it does not constitute a new matter.

KB & AH – credibility-structured approach- Pakistan (2017) UKUT 00491 IACKB & AH – credibility-structured approach- Pakistan (2017) UKUT 00491 IAC

1. The credibility indicators identified in the Home Office asylum policy instructions, assessing credibility and refugee status, version 3.0 6 January 2015 (which can be summarised as comprising sufficiency of detail; internal consistency; external consistency; and plausibility), provide a helpful framework within which to conduct a credibility assessment. They facilitate a more structured approach apt to help judges avoid the temptation to look at the evidence in a one-dimensional way or to focus in an ad hoc way solely on whichever indicator or factor appears foremost or opportune.

2. However, any reference to a structured approach in relation to the subject matter of credibility assessment must carry a number of important, interrelated caveats, among which are the following: – the aforementioned indicators are merely indicators, not necessary conditions. They are not an exhaustive list. Assessment of credibility being a highly fact-sensitive affair, their main role is to help make sure, where relevant, that the evidence is considered in a number of well-recognised respects; making use of these indicators is not a substitute for the requirement to consider the evidence as a whole or in the round. It remains that credibility assessment is only part of evidence assessment and, as Lord Dyson reminded decision-makers in M a Somalia v Secretary of State 2010 UKSC 49 at paragraph 33 “the significance of lies will vary from case to case ”.

3. In the UK context, use of such a structured approach must take place within the framework of EU law governing credibility assessment, Article 4 of the Qualification Directive in particular; and also in the context UK law, decision makers, including judges, by section 8 of the Asylum and Immigration (treatment of claimants, etc) Act 2004 are statutorily obliged to consider certain types of behaviour is damaging to credibility.

4. Consideration of credibility in the light of such indicators, if approached subject to the aforementioned caveats, is a valid and useful exercise based squarely on existing learning.

Dr. Bernard Andonian
Head of professional development
Gulbenkian Andonian solicitors