| IMMIGRATION — Asylum — Illegal entrant — Claimant arriving in United Kingdom on false papers and using two identities — Tribunal refusing claimant asylum partly on ground that his credibility damaged — Construction of statute — Whether tribunal’s assessment of credibility restricted by statute — Asylum and Immigration (Treatment of Claimants, etc) Act 2004, s 8(1)
JT (Cameroon) v Secretary of State for the Home Department [2008] EWCA Civ 878; [2008] WLR (D) 260
CA: Pill, Laws and Carnwath LJJ: 28 July 2008
When construing s 8(1) of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, which provided various factors that the court should take account of in assessing the credibility of an asylum seeker, the qualifying word “potentially” should be read into an explanatory clause which would then read: “as (potentially) damaging the claimant’s credibility”.
The Court of Appeal so held when allowing the appeal of the claimant, JT, against the decision of the Immigration Appeal Tribunal of 22 October 2007 dismissing the claimant’s appeal against the refusal of the Secretary of State for the Home Department, which had refused his application for asylum, and remitting the case to a differently constituted tribunal for full consideration.
PILL LJ said that s 8 of the 2004 Act plainly had its dangers, first, if it was read as a direction as to how fact-finding should be conducted, which it was not, and in distorting the fact-finding exercise by an undue concentration on minutiae which could arise under the section at the expense of, and as a distraction from, an overall assessment. Decision-makers should guard against that and a global assessment of credibility was required: see R (Sivakumar) v Secretary of State for the Home Department [2003] 1 WLR 840. The section 8 factors should be taken into account in assessing credibility, and were capable of damaging it, but the section did not dictate that relevant damage to credibility inevitably resulted. Telling lies did damage credibility and the wording was adopted by way of explanation. However, it was the “behaviour” of which “account” should be taken and, in context, the qualifying word “potentially” could be read into an explanatory clause which read: “as damaging the claimant’s credibility”. Alternatively, the explanatory clause could be read as: “when assessing any damage to the claimant’s credibility”. The form of the subsection and Parliament’s assumed regard for the principle of legality permitted that construction. Section 8 could thus be construed as not offending against constitutional principles. It was no more than a reminder to fact-finding tribunals that conduct coming within the categories stated in the section should be taken into account in assessing credibility. If there was a tendency for tribunals simply to ignore those matters when assessing credibility, they would be in error. However, at one end of the spectrum there could, unusually, be cases in which the conduct of the kind identified in s 8 would be held to carry no weight at all in the overall assessment of credibility on the particular facts. The section did not prevent that finding in an appropriate case.
LAWS LJ gave a judgment concurring in the result and CARNWATH LJ agreed.
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