AS and AA (Effect of previous linked determination) Somalia  UKAIT 00052
Date of hearing: 22 December 2005
Date Determination notified: 06 July 2006
|AS and AA
|Secretary of State for the Home Department||RESPONDENT|
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.
"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."
"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."
"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.
"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."
"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."
"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]:
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."
"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  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."
"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)."
"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."
"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 fiancιe 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 fiancιe 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."
"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."
"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.
"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."
"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."
"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."
"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."
"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."
"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."
"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".
"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."
"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."
"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."
"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
"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."
"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-ΰ-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."
C M G OCKELTON