Case No. UKUT-00448-(IAC)

(1) In determining whether to believe a statement made by or on behalf of a person who makes an asylum claim or a human rights claim, a deciding authority shall take account, as damaging the claimant's credibility, of any behaviour to which this section applies. (2) This section applies to any behaviour by the claimant that the deciding authority thinks– (a) is designed or likely to conceal information, (b) is designed or likely to mislead, or (c) is designed or likely to obstruct or delay the handling or resolution of the claim or the taking of a decision in relation to the claimant. (3) Without prejudice to the generality of subsection (2) the following kinds of behaviour shall be treated as designed or likely to conceal information or to mislead– (a) failure without reasonable explanation to produce a passport on request to an immigration officer or to the Secretary of State, (b) the production of a document which is not a valid passport as if it were, (c) the destruction, alteration or disposal, in each case without reasonable explanation, of a passport, (d) the destruction, alteration or disposal, in each case without reasonable explanation, of a ticket or other document connected with travel, and (e) failure without reasonable explanation to answer a question asked by a deciding authority. …… (7) In this section– ‘asylum claim’ has the meaning given by section 113(1) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (subject to subsection (9) below), ‘deciding authority’ means– (a) an immigration officer, (b) the Secretary of State, (c) [the First-tier Tribunal] , or (d) the Special Immigration Appeals Commission …………. …… [(9A) In paragraph (c) of the definition of a ‘deciding authority’ in subsection (7) the reference to the First-tier Tribunal includes a reference to the Upper Tribunal when acting under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007.]” 23.The central thrust of this ground of appeal is that the FtT misdirected itself in law in its purported application of section 8 of the 2004 Act. The Secretary of State’s grounds of appeal advance this discrete challenge in the following terms: “[The FtT ] failed to properly apply section 8 ……. It failed to reach necessary findings on the elements of that statutory test and failed to apply a mandatory statutory consideration in that test. ” The factual substratum of this ground of appeal is uncontentous . It is based on the Appellant’s twofold failure (a) to accede to the Secretary of State’s request to undergo further interview and (b) to give evidence to the FtT . These, Mr Auburn argued, are “ at the highest possible end of actions giving rise to adverse inferences ” – to be contrasted with, for example, a (mere) failure to produce a passport. 24.Developing this ground, Mr Auburn criticised the FtT’s failure to apply section 8 to the framework of this appeal in a structured way. He submitted that the FtT considered the issue of inferences in general terms only. The proper application of section 8, he contended, would have yielded the conclusion that the Appellant had concealed and misled “immigration authorities” on “fundamental matters”, requiring a consequential evaluation which the Tribunal did not undertake. Mr Auburn submitted that the FtT erred by applying its own generalised concept of inferences rather than giving effect to what he termed the “mandatory considerations” enshrined in section 8. 25.The record of Mr Auburn’s closing submissions to the FtT, which was provided in that forum and which we have considered, discloses that the following main submission was advanced on this issue. It was contended that by reason of the Appellant’s twofold refusal (noted above), the FtT should attach little or no weight to his account and draw the adverse inference that he had no explanation for a series of issues which would have withstood the scrutiny of cross examination. The main issues detailed were the falsity of the letters of introduction, the inherent improbability that an innocent participant would be engaged by the assassins (and others) in a plot of such magnitude and sophistication; the unlikelihood that the Appellant did not know the assassins and others; the flimsy nature of the Appellant’s claims about the media production benefit to him and his organisation; the Appellant’s explanations of the “Osman letter”; and his explanations of the radical, inflammatory Islamic materials found in his possession.26.The chief riposte of Mr Mackenzie on behalf of the Appellant was that the main issue in the appeal was whether the Secretary of State had discharged the onus of proving that the Appellant should be excluded from protection. The case, he argued, was not primarily about the Appellant’s credibility and, further, the Appellant bore no onus of proof. Mr Mackenzie submitted that section 8 is directed to cases where the burden of proof is on the applicant and where the applicant’s credibility is crucial.27.Mr Mackenzie further submitted that the FtT’s approach to section 8 accorded with the leading decision of the Court of Appeal,