Case No. UKUT-00448-(IAC)

v Secretary of State for the Home Department [2009] 1 WLR 1411. We pause to consider this decision. 28.Pill LJ, delivering the main judgment of the Court of Appeal, noted, firstly, drawing on the Hansard Debates, that the impetus for section 8 had been the perception that those entering the United Kingdom were being advised to – “…. throw away documents or refuse to co-operate either with the process of determining their country of origin and their passage into the country or with re-documentation for return purposes.” The Court diagnosed the following error of law in the decision of the AIT, at [16]: “ …. there is a real risk that section 8 matters were given a status and a compartment of their own rather than taken into account, as they should have been, as part of a global assessment of credibility. ” At [19] Pill LJ added: “ Section 8 …. plainly has its dangers, first, if it is read as a direction as to how fact finding should be conducted, which in my judgment it is not and, in any event, in distorting the fact finding exercise by an undue concentration on minutiae which may arise under the section at the expense of, and as a distraction from, an overall assessment. Decision makers should guard against that. A global assessment of credibility is required. ” He continued, at [21]: “ Section 8 …. is no more than a reminder to fact finding tribunals that conduct coming within the categories stated in section 8 shall be taken into account in assessing credibility. ” The next passage is important, as it makes unambiguously clear that in any case where there is evidence of any of the behaviours specified in section 8, the weight to be given thereto in the overall assessment of the claimant’s credibility is a matter for the tribunal: “ …. at one end of the spectrum, there may, unusually, be cases in which conduct of the kind identified in section 8 is held to carry no weight at all in the overall assessment of credibility on the particular facts …. Where section 8 matters are held to be entitled to some weight, the weight to be given to them is entirely a matter for the fact finder. ” Laws LJ was in agreement with Pill LJ that the correct construction of section 8 involves the notional insertion of the adverb “ potentially ” immediately before the word “ damaging ” in section 8(1). 29.In [32] of its determination, the FtT noted the following aspects of the Secretary of State’s case: “ The Appellant’s refusal to be interviewed and his refusal to give evidence in his own appeal gave rise to certain inferences. Section 8 of the [2004 Act] fell to be applied and the two refusals were at the highest possible end of actions giving rise to adverse inferences, as amounting to a failure without reasonable explanation to answer a question, which was to be treated as behaviour designed or likely to conceal information or mislead. ” We pause here to observe that this is a faithful portrayal of the submission contained in the record of Mr Auburn’s closing argument. The FtT returned to this issue in [111]: “ What inferences may properly be drawn from the Appellant’s refusal to attend a substantive asylum interview and his refusal to give evidence before us? Mr Auburn submitted that his failure to answer questions was behaviour designed or likely to conceal information or mislead, falling within section 8 …. and that it would be appropriate to draw adverse inferences as a result …. The Appellant’s explanation that he had given all the information previously was insufficient. He was last interviewed by the Home Office regarding his asylum claim in 1994, years before the principal events in issue. When interviewed by the police in October 2001, he refused to answer questions before giving what Mr Auburn described as a brief, pre-prepared account on his own terms and he declined to answer any questions about individuals associated with Islamist or terrorist causes. ” We can find no trace in this lengthy passage of any distortion or misunderstanding by the Tribunal of the Secretary of State’s case on this issue. 30.In the immediately ensuing paragraph, [112], the FtT continues: “ Although we agree with Mr Auburn that public confidence in the asylum system is capable of being undermined by a refusal to co-operate with the authorities of the United Kingdom and by a refusal to give evidence in proceedings, the particular circumstances have to be considered carefully. The precis of the police interviews and the statements made by the Appellant on 27 October 2001 through his solicitor show, as Sedley LJ noted in the Court of Appeal, that detailed explanations were in fact given by the Appellant which, if accepted or acceptable, were capable of dispelling the suspicion that he had been involved in terrorism. ” [Emphasis added.]This is followed by: “ Since the events in issue and the police enquiries, no substantial evidence has emerged. Those events took place some thirteen years ago. At an earlier stage in the litigation, the appellant offered to answer questions so long as they were put to him in writing first. That stance might perhaps be taken to indicate some measure of non-cooperation but it does not amount to a refusal to engage with the process. And, of course, the burden of showing that the appellant is excluded lies with the Secretary of State. As submitted by Mr MacKenzie , there is no new salient feature which the appellant has been invited to deal with but has refused to do so. We have already noted the adverse impact, such as it is, of his uncertain answers when questioned about the Osman letter and some of the financial transactions the IOC was involved with. ” This passage continues: “ Having carefully considered the application of section 8 of the 2004 Act and its impact in this case, we conclude that the appellant’s credibility might well be potentially undermined by his refusal to answer questions or give evidence but, on the other hand, the account he gave in October 2001 is one we can assess and weigh without difficulty. His failure to give evidence does not obscure any part of the case he has put in response to the Secretary of State’s contention that he falls within Article 1F(c) and, similarly, the Secretary of State has been able to put a clear case, identifying the particular parts of it where the appellant’s silence can be highlighted as damaging. Overall, the appellant’s conduct in this context is an adverse factor of modest weight. ” 31.It is trite that these passages must be considered in their entirety and in the context of the Tribunal’s decision as a whole. They must also be viewed against the framework of the main issues thrown up by the appeal. Furthermore, these passages must be juxtaposed with the salient parts of the evidence considered by the Tribunal. These include the terms of the letters exchanged between the parties relating to the proposed further interview of the Appellant by the Secretary of State’s officials and the Appellant’s proposal in this respect, the records of the police interviews and the written statements proffered by the Appellant during the interview phase.32.As regards the further interview issue, we are satisfied that the FtT understood the case being made on behalf of the Secretary of State. Furthermore, there is no challenge to its portrayal of the evidence bearing on this issue. The Tribunal stated correctly that the Appellant’s stance was not one of outright refusal to engage. Furthermore, the Tribunal reproduced accurately the observations of Sedley LJ and was entitled to adopt these. From the records of the police interviews the Tribunal would have been aware that the Appellant’s initial stance, which was one of silence, was based on his experienced solicitor’s advice and, as the 19 interviews progressed, was overtaken by two lengthy written statements which were read into the record, coupled with a fundamental change of position which entailed the Appellant engaging with the interviewing officers. Notably, this occurred at a stage when the Appellant had asked in terms for, and had been given, an assurance that the interviews were not based upon any preconception of guilt but were, rather, an exercise genuinely designed to establish the truth.33.The second limb of this ground, namely the Appellant’s failure to testify to the FtT, overlaps somewhat with the first. Once again, the Tribunal plainly understood the case which the Secretary of State was making and, inter alia, characterised some of the Appellant’s responses during the police interviews as “uncertain”. Taking both limbs together, the Tribunal’s decision on the section 8 issue is properly analysed, in our view, as involving two conclusions. First, the Appellant’s twofold failure, or refusal, damaged his credibility. Second, in the Tribunal’s judgment, the damage was considered to be modest. We consider that the first of these conclusions, coupled with the Tribunal’s antecedent approach, involved the correct application of section 8 of the 2004 Act and discloses no error of law. Our assessment of the second conclusion is precisely the same. This further conclusion, in our opinion, is a paradigm illustration of giving full effect to the Court of Appeal’s recognition in JT (Cameroon) that where, at the first stage, a Tribunal decides that there is evidence of conduct falling within the compass of section 8, this leads to a second stage of assessing the consequential damage, if any, to the claimant’s credibility, an exercise in which the weight to be accorded to the relevant fact or factor is “entirely a matter for” the Tribunal. 34.On the grounds and for the reasons elaborated above, we conclude that there is no merit in the first ground of appeal.