IMMIGRATION — Asylum — Appeal — Extent to which decision-maker bound by previous findings of fact in case involving different claimant

AA (Somalia) v Secretary of State for the Home Department; AH (Iran) v Same [2007] EWCA Civ 1040

CA: Ward, Carnwath and Hooper LJJ: 25 October 2007

Guidance as to how a decision-maker in an asylum and human rights appeal should approach the findings of fact made by a previous decision-maker in the same case, was also applicable to cases involving different claimants where the claims involved materially overlapping evidence and arose out of the same factual matrix.

The Court of Appeal (Hooper LJ dissenting in part) so held when (i) dismissing an appeal by AA from a decision of the Asylum and Immigration Tribunal (“AIT”) that it was not bound by previous findings of fact made in AA’s sister’s appeal; and (ii) allowing an appeal by AH from the AIT’s decision that it was not bound by the finding in M’s appeal that AH was in a homosexual relationship with M.

CARNWATH LJ said that the question was: how far were the guidelines in Devaseelan v Secretary of State for the Home Department [2003] Imm AR 1 to be applied in cases involving different claimants but closely related factual circumstances. In Devaseelan the claimant made a human rights claim based on substantially the same facts as his previous asylum claim which had been rejected. The Immigration Appeal Tribunal gave guidance, inter alia, that (i) that the first adjudicator’s determination should always be the starting point; (ii) facts personal to the claimant which had not been brought to the first adjudicator’s attention should be treated with the greatest circumspection; (iii) if facts before the second adjudicator were not materially different from those put to the first adjudicator, and the claim was supported by essentially the same evidence, the second adjudicator should regard the issues as settled by the first adjudicator’s determination; and (iv) the force of the reasoning underlying (ii) and (iii) were much reduced if there was some very good reason why the claimant’s failure to adduce relevant evidence before the first adjudicator should not be held against him. The guidelines were not limited to cases between the same parties: see Ocampo v Secretary of State for the Home Department [2006] EWCA Civ 1276. However, their application should be limited to cases where the claims involved not only overlapping evidence but also arose out of the same factual matrix, such as the same relationship or the same event or series of events. Furthermore, where the second appeal was by a different, albeit closely connected, party the second tribunal might be more readily persuaded that there was a good reason to revisit the earlier decision.

WARD LJ agreed. HOOPER LJ delivering a dissenting judgment, agreed that AA's appeal
should be dismissed for different reasons.

Appearances: Rick Scannell with Christa Fielden (South West Law (Legal Services in the Community) Ltd, Bristol) for AA, and with Rory O’Ryan (Luqmani Thompson & Partners) for AH; Steven Kovats (Treasury Solicitor) for the Secretary of State.

Reported by: Isobel Collins, barrister