MA (Somalia) (Respondent) v Secretary of State for the Home Department (Appellant)

The issues raised in the appeal were whether the Court of Appeal: (i) adopted the wrong approach to the assessment of the impact of MA’s lies to the Asylum and Immigration Tribunal (“AIT”) on his claim for international protection on the basis of Article 3 of the European Convention on Human Rights (“ECHR”); and (ii) impermissibly interfered with the assessment of the facts made by the AIT, including the impact of MA’s lies on a relevant aspect of his claim.  The second issue was the question of how far it is legitimate for an appeal court to interfere with the assessment of facts made by a specialist tribunal on the grounds of error of law.

MA was a citizen of Somalia and  a member of the Isaaq clan, sub-clan Habr Yunis. He entered the United Kingdom illegally in 1995 and applied for asylum but his application was refused, but he was granted exceptional leave till 2000.In 1998, he was convicted of rape and indecency with a child. He was sentenced to eight years’ imprisonment. In 2002, the Secretary of State for the Home Department served him with a notice of intention to make a deportation order. MA appealed against the notice on human rights grounds. The Secretary of State under the Immigration Rules  refused the claim. After MA’s appeal was dismissed, MA applied for judicial review, raising issues under Article 3 of the ECHR.

AIT allowed his appeal. It  did so on human rights grounds only. The Secretary of State applied for an order requiring the AIT to reconsider their decision. MA’s appeal was re-heard where AIT  dismissed the appeal. The  Court of Appeal allowing his appeal [2010] EWCA Civ 426, held that, although the AIT directed themselves impeccably, they did not apply that direction properly and they failed to take account of  material factor in reaching their conclusion.

The Supreme Court formulated the question to be decided: How should the AIT approach such general evidence where they do not believe the evidence given by the appellant that bears on the question of whether such special circumstances apply?

The facts were that the Secretary of State wished to return MA to Somalia. This involved sending him to Mogadishu. The objective evidence about conditions in  Somalia was that only a person who had close connections with powerful actors (such as prominent businessmen or senior figures in the insurgency or in powerful criminal gangs) was likely to be safe if returned to Mogadishu. MA gave a great deal of conflicting evidence to the effect that he had no connections in Mogadishu at all. The AIT found that he had not told them the truth about his links and circumstances in Mogadishu. But they were unable to find positively that he did have connections there, still less that he had close connections with powerful actors.

The Supreme Court observed that where the appellant had given a totally incredible account of the relevant facts, the tribunal must decide what weight to give to the lie, as well as to all the other evidence in the case, including the general evidence. The AIT in the present case was rightly alive to the danger of falling into the trap of dismissing an appeal merely because the appellant had told lies. So the significance of lies will vary from case to case. In some cases, the AIT may conclude that a lie is of no great consequence whereas in other cases, where the appellant tells lies on a central issue in the case, the AIT may conclude that they are of great significance.

The Supreme Court allowing the appeal held that the role of the court is to correct errors of law. Examples of such errors include misinterpreting the ECHR (or in a refugee case, the Refugee Convention or the Qualification Directive); misdirecting themselves by propounding the wrong test on some legal question such as the burden or standard of proof; procedural impropriety such as a breach of the rules of natural justice; and the familiar errors of omitting a relevant factor or taking into account an irrelevant factor or reaching a conclusion on the facts which is irrational. But it warned that the court should not be astute to characterise as an error of law what, in truth, is no more than a disagreement with the AIT’s assessment of the facts. Also  where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account. It concluded that the Court of Appeal  was wrong to interpret AIT’s determination as saying that they were dismissing the appeal because MA’s account was incredible. The Supreme Court held that the AIT did not adopt the wrong approach in their assessment of the impact of MA’s lies and there was no error of law in their determination which warranted interference by the Court of Appeal