Same people, same events - different conclusions
Immigration Judges (they used to be called Adjudicators) consider the appeals of people whose applications, whether for asylum or for visas to come to the United Kingdom, have been refused by the Secretary of State. In the course of making their determinations either in favour of or against Appellants they make findings of fact. In AA (Somalia) & AH (Iran) v Secretary of State [2007] EWCA Civ 1040 (25-10-2007) the Court of Appeal had to deal with the difficulties which are created by different Immigration Judges making different findings of fact concerning the same events. The issue is starkly illustrated by Lord Justice Ward’s example:
“There is a meeting of political dissidents in Ruristan at which A and B are present. The security police raid the meeting. A and B dive out of a window and flee to England where they claim asylum. The other dissidents are rounded up and summarily executed by the police. Immigration judge X hears A and B give evidence, believes them, and grants A asylum. Immigration judge Y, who has X's decision before him, hears A and B give exactly the same evidence, but disbelieves them and refuses B asylum. Can that be right?
I have no doubt that the man in the street would answer, "Of course it cannot be right. Either X or Y has got it wrong. Both cannot be right. Justice has not been done." The logic is unassailable. On the other hand, the lawyer would reply, "There is no estoppel and the important principle of judicial independence demands that each judge try every case on the evidence before him or her."
That such inconsistency between Immigration Judges’ decisions about facts material to two different asylum applications could actually be legally permissible was a matter which concerned Sedley LJ in Otshudi v Secretary of State [2004] EWCA Civ 893. Otshudi had lost his appeal to the Immigration Appeal Tribunal against the refusal of his asylum application but less than two weeks later his brother had won his appeal before an Adjudicator. The Tribunal had disbelieved his evidence as to the same facts that had been accepted by the Adjudicator in his brother’s appeal. Acknowledging that no submission to the effect that the discrepant factual findings indicated the existence of an error of law had been made nor could be made on Otshudi’s behalf Sedley LJ stated:
"This is not the class of case which involves what Laws LJ has called a "factual precedent" - for example a finding about the political situation in a given country at a given moment. It is an illustration, if an alarming one, of the fact that two conscientious decision-makers can come to opposite or divergent conclusions on the same evidence. But it is no more material to the legal soundness of the present adjudicator's decision than hers would be to the soundness of the second adjudicator's decision................."
Despite there being no error of law Sedley LJ however indicated that this was regrettable:
"The discrepancy between the two decisions, while giving rise to no legal challenge, must be a matter of concern. If the second adjudicator is right, this appellant's life too is at risk. If he is wrong, of course, neither brother may be at risk; but asylum law - for example by demanding something less than proof positive - deliberately errs on the side of caution................."
It was in the light of this kind of concern that the Court of Appeal proceeded in its consideration of AA and AH v Secretary of State.
Appellant AA is Somali. In his asylum application he claimed that he was a member of a minority clan, the Ashraf, and therefore subject to persecution by armed militia in the lawlessness which characterises Somalia. The Secretary of State did not believe that he was Ashraf. In his appeal he relied on the fact his sister had been found by an Adjudicator to be Ashraf, in the course of his determination of her appeal against the Secretary of State’s refusal of her asylum application. The Secretary of State was not disputing that she was AA’s sister and so it followed that he must be Ashraf too.
The Immigration Judge who heard AA’s appeal was not given a copy of the determination allowing AA’s sister’s appeal. He heard evidence from both AA and her sister and disbelieved them both, stating that although it was likely that the Adjudicator who had allowed her appeal had found her to be a credible witness that finding was not binding on him. AA applied to the Asylum and Immigration Tribunal for “reconsideration” of his appeal.
Appellant AH is Iranian. His asylum application was based upon his being a homosexual. In Iran he had a lover called HRM, who was his wife’s cousin. AH claimed in his application and in his appeal that his sexual orientation and behaviour would be brought to the attention of the Iranian authorities via his wife. His wife was bent on revenge, having discovered her husband and her cousin’s homosexual relationship. HRM had himself applied for asylum and had been refused. His appeal had been allowed by an Immigration Judge who had found, crucially, that he had had a sexual relationship with AH, that he was AH’s wife’s cousin and that AH’s wife was “vengeful”. In his own appeal AH contended that these unchallenged facts were binding upon the Immigration Judge who was considering his appeal. The Immigration Judge agreed and allowed his appeal.
AA applied to the Asylum and Immigration Tribunal for reconsideration of his appeal and the Secretary of State applied for reconsideration of AH’s. The Asylum and Immigration Tribunal, sitting as a panel, found that the Immigration Judge in AA’s appeal had not erred in law in reaching his determination and ordered that it should stand. In separate proceedings it found that the Immigration Judge in AH’s appeal had erred in law and having done so it proceeded to reach a new determination dismissing his appeal.
Both AA and AH appealed to the Court of Appeal.
In their judgments Hooper, Carnwarth and Ward LLJ refer at length to five cases in which the principles regarding the relevance of facts found in the course of one appeal to the determination of other appeals have developed.
The first and most important of these is Devaseelan [2002] UKIAT 00282, in which the Tribunal considered the position where an Appellant had lost his or her asylum appeal, and had then later had his or her application to stay in the UK on human rights grounds refused and had then appealed against that refusal. (Nowadays the human rights and asylum appeals would be heard and decided in the same proceedings – the phenomenon of “second appeals” such as Devaseelan’s was the result of the jurisdiction in immigration appeals embracing human rights issues immediately after the commencement of the Human Rights Act 1998). The Tribunal found that the facts found by the Adjudicator who had decided the asylum appeal must stand as “the starting point” for the human rights appeal. This meant that if an Appellant had based his or her fear of persecution upon a description of events which had been disbelieved by the Adjudicator who had determined his or her asylum appeal the Appellant could not then rely upon the same events in his or her human rights appeal. The Adjudicator (or Immigration Judge) hearing the “second appeal” would be bound to adopt the findings made by the Adjudicator who had dismissed the asylum appeal. It was possible that new evidence, contemporaneous with the decision in the asylum appeal might be adduced by the Appellant at his second appeal to show that the Adjudicator’s findings in the first appeal had been unsafe. However there would have to be “very good reasons” shown by the Appellant for such evidence to be admitted. The Tribunal was especially anxious to emphasise that the alleged incompetence or inadequacy of whoever represented the Appellant at the first hearing would be unlikely to constitute such “very good reasons”.
In DB [2003] UKIAT 00053 the Tribunal found that there was no reason why the principles set out in Devaseelan should not also apply to appeals against refusal of entry clearance. Where the Appellant had previously lost an appeal against the refusal of his or her application for a visa and had then made a second application and had again been refused – there was no reason why an Adjudicator hearing an appeal against the second refusal should not consider the determination made by the Adjudicator who had dismissed the earlier appeal.
In TK (Consideration of prior determinations) Georgia [2004] UKIAT 00149 (3-6-2004) the Immigration Appeal Tribunal considered the application of the Devaseelan principles to appeals involving the family members of people who had previously applied for asylum and whose appeals against the refusals of such applications had been determined. TK was the daughter of a man whose alleged political activity in Georgia had caused the members of his family, as well as himself, to suffer persecution. The Tribunal had dismissed TK’s father’s appeal against the Secretary of State’s refusal of his asylum application.
The Tribunal found that an extension of the principle to cover appeals such as TK’s was justified, stating that:
"In these circumstances the Tribunal considers that not only was the Adjudicator entitled to read [the first] Determination, notwithstanding the arguments to the contrary which have been considered and dealt with above, but was also entitled to conclude that it would be wrong to revisit [the first] 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 Miss Record'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."
In LD (Algeria) EWCA Civ 804 (30/06/2004), another appeal in which the Appellant had lost an asylum appeal and was then appealing against his subsequent refusal of leave to remain in the UK on the basis of his human rights, the Court of Appeal approved the Devaseelan principles.
Then in SK (Guidance on the application of Devaseelan) Serbia and Montenegro [2004] UKIAT 00149 the Immigration Appeal Tribunal stated that Devaseelan does not apply to decisions relating to family members (of people whose appeals had previously been determined). Needless to say this was apparently inconsistent with the Tribunal’s determination in TK a few months earlier.
The Tribunal came to consider AA’s case in December of 2005. By Counsel for AA the Tribunal was being asked to find that the determination in favour of AA’s sister comprised evidence of her membership of a minority clan upon which had not been challenged by the Secretary of State and upon which AA was entitled to rely in support of his own membership of the same minority clan. The Tribunal examined its own previous decisions, including Devaseelan and TK, and the general principles of res judicata and issue estoppel with which these cases are concerned.
The Tribunal explained and justified the decision in Devaseelan, pointing out that the principle it established applied in proceedings where the parties had met and the principle could be expressed as follows:
“The previous judgment is not binding, but it is not to be ignored. If there is no good reason for departing from it, it must, as between the parties to that litigation, be treated as settling the issues with which it was concerned and the facts on which the determination was based.”
However in the Tribunal’s view where the parties to a second appeal were not the same as in the first appeal the principle that the determination in the first appeal should be taken to settle the facts on which that determination was based had no application. The first determination was simply the starting point for the second appeal. The result reached by the Tribunal in the second appeal could well differ from that reached in the first appeal. They stated:
"We can see no possible basis for the assertion that a determination in one appellant’s case has any binding effect on any other individual."
In Ocampo v Secretary of State [2006] EWCA the Appellant had relied before the Immigration Judge who decided his appeal upon the determination of an Adjudicator who had earlier, in 2000, allowed his daughter’s appeal. Both he and his daughter had given evidence before the Adjudicator at her appeal. The Adjudicator believed their evidence and had found that they had both received death threats from FARC, a guerrilla group politically opposed to the Colombian government. At his own later appeal the Appellant sought to rely upon his daughter’s determination as settling the factual basis of his case for international protection. But the Secretary of State’s representative at the hearing of the Appellant’s appeal had placed before the Tribunal a copy of the notes of an interview with the Appellant which had been conducted in 1997, and which demonstrated material inconsistencies with the account that the Appellant had later given at his daughter’s appeal in 2000. The Tribunal dismissed his appeal, and the Appellant appealed to the Court of Appeal, stating that the Adjudicator’s findings of fact made in the course of his daughter’s appeal bound the Tribunal in his own appeal unless the Secretary of State could show that they had been fraudulently obtained.
The Court dismissed Ocampo’s appeal. It found (per Auld LJ with whom Hooper and Rix LJJ agreed) that the Devaseelan principles were applicable to cases such as Ocampo’s “where the parties are not the same but there is a material overlap of evidence” but held that the Tribunal had been entitled to admit the Appellant’s 1997 interview notes and that this had provided a basis for its decision. Due to this evidence the Tribunal had been entitled not to have regarded the findings of fact made in the Appellant’s daughter’s appeal as determinative as to the facts in the Appellant’s case.
In AA & AH the Court of Appeal differed in its interpretation of the Court’s judgment in Ocampo. Hooper LJ disagreed with the submission that the judgment was effectively that if none of the circumstances set out by the Tribunal in Devaseelan applied then the second tribunal was bound by the findings of fact made by the first tribunal. He stated that in his judgment the law, which needed to be simplified and clarified, was as follows:
“In cases where the parties are different, the second tribunal should have regard to the factual conclusions of the first tribunal but must evaluate the evidence and submissions as it would in any other case. If, having considered the factual conclusions of the first tribunal, the second tribunal rationally reaches different factual conclusions, then it is those conclusions which it must apply and not those of the first tribunal. In my view Ocampo and LD do not stand in the way of this simple approach. Both cases make it clear the first decision is not binding and that it is the fundamental obligation of the judge independently to decide the second case on its own individual merits. All that I am doing is simplifying and clarifying the law. Simplification and clarification have the advantages of making it easier for immigration judges for whom the law is already far more complicated than it should be and of making it less likely that there will be appeals on whether the second tribunal was, or was not, bound by the decision of the first. It also has the advantage that the same rule applies whether the previous decision was in favour or against the Secretary of State.”
On this basis he found that the Asylum and Immigration Tribunal had been correct to dismiss both AA and AH’s appeals. They had considered all of the evidence in each case, including the findings of fact made in the other proceedings sought to be relied upon by AA and by AH (of course AA’s sister’s determination had not been provided to the Tribunal) and had reached their conclusions accordingly – bearing in mind that they were not bound by the earlier decisions.
By contrast Carnwarth LJ, with whose judgment Ward LJ agreed, found that the judgment in Ocampo clearly amounted to an approval of the Devaseelan principle that findings made in one set of proceedings were relevant to later proceedings where there was a material overlap of evidence between the two sets of proceedings. Unless there was a “very good reason” for not regarding the findings of fact as settling the issue they should be regarded as such. This was illustrated by the way in which, in LD (Algeria), the Tribunal had found that new evidence relied upon by the Appellant did not amount to a “very good reason” for reopening the findings of fact which had been made in the first proceedings. Similarly in the cases dealing with appeals involving different Appellants – in TK there had been no significant new evidence which could provide the necessary “very good reason” and in Ocampo the interview notes had provided the reason.
Carnwarth LJ stated that this interpretation echoed the submissions made on behalf of the Secretary of State way back when Devaseelan itself had been heard – where counsel for the Secretary of State had argued in favour of the principle adopted in Devaseelan on the basis that it would be unfair for an Appellant who had been found to have been credible by the Adjudicator who had determined his or her asylum appeal not to be entitled to rely upon that finding in his or her later human rights appeal. Moreover this interpretation had the advantage of achieving consistency between judicial decisions, which was a fundamental principle of administrative law. He quoted the Privy Council’s judgment in Matadeen v Pointu [1998] 1 AC 98 PC (per Lord Hoffmann):
"Their Lordships do not doubt that such a principle is one of the building blocks of democracy and necessarily permeates any democratic constitution. Indeed, their Lordships would go further and say that treating like cases alike and unlike cases differently is a general axiom of rational behaviour. It is, for example, frequently invoked by the courts in proceedings for judicial review as a ground for holding some administrative act to have been irrational: see Professor Jeffrey Jowell QC, Is Equality a Constitutional Principle? [1994] Current Legal Problems 1, 12-14 and De Smith, Woolf and Jowell, Judicial Review of Administrative Action, paras. 13-036 to 13-045." (p 109C-D)
He went on to state that two qualifications should be added to the judgment in Ocampo regarding the application of Devaseelan to cases involving different Appellants. Ward LJ expressly agreed with these qualifications, which are:
i) It should be noted that the extension of the Devaseelan principles to proceedings where the parties are not the same as in the first appeal must only be implemented where there was a material overlap of evidence. This was a stricter condition than might at first appear – it required that the relevant asylum applications or appeals against the refusals of such applications arose from the “same factual matrix”. To extend the principle to cases where there was a mere overlap would be much too wide.
ii) When the second Tribunal was deciding whether or not there was a “very good reason”, in accordance with the Devaseelan principles, to regard the first determination of the facts as settled – there was likely to be an important distinction to be made depending upon whether the previous decision was in favour of or against the Secretary of State. This was because the Secretary of State was a party to the first decision and the Appellant was not, and:
“It is one thing to restrict a party from relitigating the same issue, but another to impose the same restriction on someone who, although involved in the previous case, perhaps as a witness, was not formally a party.”
(The kind of restriction referred to by Carnwarth LJ was the practice, alleged by the Tribunal in Devaseelan to be prevalent, of legal representatives seeking to explain that Appellants had not been believed in their first appeals due to the incompetence or inadequacy of whoever had represented the Appellants at that time. The Tribunal had encouraged Adjudicators to give no weight to such submissions).
Applying this distillation of the law to AA’s case Carnwarth LJ took the view that the Immigration Judge who had dismissed AA’s appeal had not erred in law. He had not been provided with a copy of the determination in AA’s sister’s case. The Tribunal (on reconsideration) had therefore been correct to find that he could not be held to have erred in law by failing to have regard to what that determination stated.
But AH ‘s case was different. The Adjudicator had expressly relied upon another Adjudicator’s determination (that of HRM’s appeal) in which it had been found that AH was involved in a homosexual relationship with HRM, that HRM’s cousin was AH’s wife, that AH’s wife was aware of the relationship and that she was bent on revenge. The Adjudicator had directed himself in accordance with the Tribunals’ determination in TK and had therefore considered whether there was any very good reason such as “compelling new evidence” why these facts should not be adopted by him in his determination of AH’s appeal. He noted that the Secretary of State’s representative before him had suggested with reference to HRM’s determination that there had been “lines of cross examination which could have been taken but which were not”. The Adjudicator noted that these suggested lines of cross-examination did not amount to compelling new evidence. So if TK had been correctly decided the Adjudicator’s approach could not be faulted.
So by a majority AH’s appeal was allowed. The whole of the Court of Appeal agreed that AA’s appeal should be dismissed, although for different reasons.
This case has now resolved what had been a particularly thorny issue in immigration law. As Ward LJ stated anybody told that decisions like that in Otshudi were fine from a legal point of view would quite reasonably be bewildered by the sheer lack of logic of the result. The case also provides representatives with the means properly to advise people who have family members whose appeals have already been determined by the Asylum and Immigration Tribunal, or in any case where there are facts shared with those described by an somebody else whose appeal has already been determined. Following the Immigration Appeal Tribunal’s decision in DB the scope of the application of Devaseelan is now very wide.
Carnwarth LJ's second qualification to the Devaseelan principles notes how those principles must be adapted to suit the circumstances of appeals involving people who were not parties to any previous determination. In noting that the Secretary of State will always have been such a party and that therefore she will face a more difficult task in seeking to show that an earlier favourable determination advantageous to the Appellant was wrong the Court of Appeal has pre-empted a potential area of unfairness to Appellants
