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You are here: BAILII >> Databases >> UK Social Security and Child Support Commissioners' Decisions >> [2008] UKSSCSC CIS_4022_2007 (12 June 2008) URL: https://www.bailii.org/uk/cases/UKSSCSC/2008/CIS_4022_2007.html Cite as: [2008] UKSSCSC CIS_4022_2007 |
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[2008] UKSSCSC CIS_4022_2007 (12 June 2008)
[2008] UKSSCSC CIS_4022_2007 (12 June 2008)
CIS/4022/2007
The Commissioner's decision
The background to the three inter-connected appeals
The events leading up to the tribunal hearing
The appeal tribunal hearing and decision
The grounds of appeal to the Commissioner
The parties' submissions on the appeal to the Commissioner
"[17] In the light of the cases cited to us it is convenient at this stage to formulate some propositions about the circumstances in which an immigration judge's decision on a matter of credibility or plausibility may be held to disclose an error of law. The credibility of an asylum-seeker's account is primarily a question of fact, and the determination of that question of fact has been entrusted by Parliament to the immigration judge (Esen, paragraph 21). This court may not interfere with the immigration judge's decision on a matter of credibility simply because on the evidence it would, if it had been the fact-finder, have come to a different conclusion (Reid, per Lord Clyde at 41H). But if the immigration judge's decision on credibility discloses an error of law falling within the range identified by Lord Clyde in the passage quoted above from Reid, that error is open to correction by this court. If a decision on credibility is one which depends for its validity on the acceptance of other contradictory facts or inference from such facts, it will be erroneous in point of law if the contradictory position is not supported by any, or sufficient, evidence, or is based on conjecture or speculation (Wani, paragraph 24, quoted with approval in HK at paragraph 30). A bare assertion of incredibility or implausibility may disclose error of law; an immigration judge must give reasons for his decisions on credibility and plausibility (Esen, paragraph 21). In reaching conclusions on credibility and plausibility an immigration judge may draw on his common sense and his ability, as a practical and informed person, to identify what is, and what is not, plausible (Wani, paragraph 24, page 883L, quoted with approval in HK at paragraph 30 and in Esen at paragraph 21). Credibility, however, is an issue to be handled with great care and sensitivity to cultural differences (Esen, paragraph 21), and reliance on inherent improbability may be dangerous or inappropriate where the conduct in question has taken place in a society whose culture and customs are very different from those in the United Kingdom (HK at paragraph 29). There will be cases where actions which may appear implausible if judged by domestic standards may not merit rejection on that ground when considered within the context of the asylum-seeker's social and cultural background (Wani, paragraph 24, page 883I, quoted with approval in HK at paragraph 30). An immigration judge's decision on credibility or implausibility may, we conclude, disclose an error of law if, on examination of the reasons given for his decision, it appears either that he has failed to take into account the relevant consideration that the probability of the asylum-seeker's narrative may be affected by its cultural context, or has failed to explain the part played in his decision by consideration of that context, or has based his conclusion on speculation or conjecture."
The reasons of the Commissioner in dismissing this appeal
Findings on credibility and the tribunal's duty to give reasons
R(I) 2/51
R(SB) 33/85
CIS/12032/1996
"In my judgment the ground of appeal is misconceived. A tribunal in particular in a case of this kind must assess the credibility or otherwise of any witness including the claimant. If it does not find the evidence given by the claimant credible, it is entitled to say so without more. It is difficult to understand what reasons it is supposed to give other than simply that it does not believe the claimant".
R 3/01 (IB)(T)
"22. Firstly, we do not consider that there is any universal obligation on a Tribunal to explain its assessment of credibility. We disagree with CSIB/459/97 in that respect. There may of course be occasions when this is necessary but it is not an absolute rule that this must always be done. If a Tribunal makes clear that it does not believe a claimant's evidence or that it considers him to be exaggerating this will usually be sufficient. The Tribunal is not required to give reasons for its reasons. There may be situations when a further explanation will be required but the only standard is that the reasons should explain the decision. It will, however, normally be a sufficient explanation for rejecting an item of evidence, including evidence of a party to an appeal, to say that the witness is not believed or is exaggerating.
23. A court is not usually required to enter into detailed reasoning as to why it believes or disbelieves evidence. There are sound reasons why not and why courts frequently use anodyne expressions such as that a witness's testimony is "coloured by hindsight" or that his memory has "become selective with the passage of time". Detailed criticism may be regarded as abusive by those criticised and may provoke persons not connected with the appeal into taking steps adverse to the witness or provide them with ammunition to do so. Tribunals are in the same situation. A Tribunal is entitled to exercise its judgment on the veracity of evidence put before it. In many instances it must do so to ascertain the facts. There is no rule that it must explain its assessment of credibility. The only rule is that the reasons for the decision must make the decision comprehensible to a reasonable person reading it. In many instances it would be pointless for a Tribunal to enter into a detailed explanation. A Tribunal might, for example, state that it considered that a claimant was shifty in his demeanour and therefore did not believe him. The claimant would then wish to know why the Tribunal considered him shifty and the matter could continue almost indefinitely. There seems little point in a tribunal entering into such situation and it is certainly not required to do so as a general rule. That is not to say that there may not be times when a further explanation may be needed. It will all depend on the circumstances of the case."
Other authorities on credibility in appeal tribunals
A summary of the scope of the tribunal's obligation to give reasons on credibility
The case law on credibility reasons in the asylum jurisdiction
"19. It follows that at least in this important respect, there were significant discrepancies in the appellant's account. Indeed, the adjudicator said that she accepted the view of the Secretary of State that there were discrepancies. As we have seen, the Secretary of State had said that the discrepancies were so serious that they completely undermined the credibility of her claim. A number of possible conclusions were available to the adjudicator. First, she could have said that, accepting the discrepancies at face value (without taking account of the response statement), they did not undermine the core of her claim. Secondly, she could have said that, if taken at face value, the discrepancies completely undermined the core of her claim; but she accepted the explanations given in the response statement and for that reason concluded that the discrepancies were more apparent than real and did not undermine the core of her account. Thirdly, she could have said that she accepted that some of the alleged discrepancies had not been adequately explained by the appellant in the response statement, but that these did not undermine the core of the account. Fourthly, she could have accepted that some of the alleged discrepancies had not been adequately explained in the response statement, and that these did undermine the appellant's account.
20. In my judgment, the existence of these possibilities underlines the fact that it was imperative for the adjudicator to explain how she reached her main conclusion that, having regard to the response statement, the discrepancies did not completely undermine the core of the claim. It was insufficient simply to say that she had had regard to the response statement. She should have identified the discrepancies which she considered had been satisfactorily explained by the appellant and those which had not, giving short reasons for her findings, and explained why such discrepancies as had not been satisfactorily explained did not completely undermine the appellant's account. I agree with the conclusion of the IAT that the adjudicator did not give adequate reasons for her finding that the appellant was a credible witness, particularly in circumstances where she did not give oral evidence beyond the adoption of her witness statement…"
"28. The fact-finding jurisdiction of immigration judges is of course a most important one. They have a difficult task to perform, assessing the credibility of an account of events in a foreign country and, usually, without the benefit of other direct evidence of those events. An applicant's evidence has to be assessed in the context of in-country material describing the situation in that country. The judge is also entitled to have regard to evidence, such as medical evidence, which may be corroborative of the applicant's account. While there may be cases in which all a fact-finding judge can say is that, having seen and heard the witness, he or she believes or does not believe that witness, it will usually be necessary, when the lawfulness of a finding of fact on credibility is challenged, for the appellate tribunal to consider the question of credibility in the context of the evidence as a whole.
29. In assessing the adequacy of a fact-finding exercise, an appellate tribunal expects findings to be adequately reasoned. By its reasoning, the fact-finding tribunal not only tells the losing party why he has lost but may also be able to demonstrate that it has adequately and conscientiously addressed the issue of fact which has arisen. That is particularly important when it is the credibility of an applicant which is in issue. A lack of reasoning may demonstrate a failure adequately to address the fundamental question: Is the applicant telling the truth?"
"Now I do not suggest that there may not be a credibility case in which the immigration judge is indeed obliged to provide a substantial explanation of his or her approach to discrepancies which are found to exist. That was the position in Malaba [2006] EWCA Civ 820 (see the judgment of Dyson LJ at paragraphs 19 and 20) and also AK [2006] EWCA Civ 1182. But every case is of course different. Discrepancies may sometimes be more important where they are internal to a witness's evidence. The duty to give reasons is not a matter of ticking a checklist. Its essence is to ensure that the parties to a decision - and indeed any relevant appeal court - should understand why one has won and the other has lost" (paragraph 18).
.
Applying these principles in the instant appeal
Three procedural issues arising in the course of the tribunal hearing
(1) The absence of any presenting officer
"24. Therefore, with regard to the future, appeal tribunals will have comfort that (i) if the tribunal directs that a presenting officer attend a hearing, then such an officer will attend (or make a timely application for a postponement, if attendance is not possible); and (ii) although this will take some time to implement, the Secretary of State is developing criteria to identify cases of complexity that require a presenting officer and, in those cases, a presenting officer will attend whether or not the tribunal has made an express direction."
(2) The claimant's insistence on not hearing her partner's evidence
(3) To swear or not to swear (or to affirm)
(signed on the original) N J Wikeley
Deputy Commissioner
12 June 2008