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AM (Afghanistan) v SSHD [2017] EWCA Civ 1123

Immigration tribunal - fair hearing, litigation friends In this judgment the Court of Appeal gave guidance on the general approach to be adopted in FTT and UT immigration and asylum cases to the fair determination of claims for asylum from children, young people and other incapacitated or vulnerable persons whose ability to effectively participate in proceedings may be limited. In relation to litigation friends, despite there being no provision in the tribunal rules for litigation friends, the court decided that: "[T]here is ample flexibility in the tribunal rules to permit a tribunal to appoint a litigation friend in the rare circumstance that the child or incapacitated adult would not be able to represent him/herself and obtain effective access to justice without such a step being taken. In the alternative, even if the tribunal rules are not broad enough to confer that power, the overriding objective in the context of natural justice requires the same conclusion to be reached."

ICLR

The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.  

The WLR Daily case summaries

[2017] WLR (D) 527

Court of Appeal

AM (Afghanistan) v Secretary of State for the Home Department (Lord Chancellor intervening)

[2017] EWCA Civ 1123!

2017 May 17; July 27

Gross, Ryder, Underhill LJJ

Practice— Tribunals— First-tier and Upper Tribunals— Asylum claims made by children, young people and other incapacitated or vulnerable persons— Guidance for ensuring access to justice

The following core principles of asylum law and practice have particular importance in claims for asylum from children, young people and other incapacitated or vulnerable persons whose ability to effectively participate in proceedings may be limited. (i) Given the gravity of the consequences of a decision on asylum and the accepted inherent difficulties in establishing the facts of the claim as well as future risks, there is a lower standard of proof, expressed as “a reasonable chance”, “substantial grounds for thinking” or “a serious possibility”. (ii) While an assessment of personal credibility may be a critical aspect of some claims, particularly in the absence of independent supporting evidence, it is not an end in itself or a substitute for application of the criteria for refugee status which must be holistically assessed. (iii) The findings of medical experts must be treated as part of the holistic assessment: they are not to be treated as an “add-on” and rejected as a result of an adverse credibility assessment or finding made prior to and without regard to the medical evidence. (iv) Expert medical evidence can be critical in providing explanation for difficulties in giving a coherent and consistent account of past events and for identifying any relevant safeguards required to meet vulnerabilities that can lead to disadvantage in the determination process, for example in the ability to give oral testimony and under what conditions. (v) A claimant’s account of his fears and the assessment of his credibility must also be judged in the context of the known objective circumstances and practices of the state in question, and a failure to do so can constitute an error of law. (vi) In making asylum decisions, the highest standards of procedural fairness are required. (vii) The early identification of issues of vulnerability is encouraged, if at all possible, before any substantive hearing. (viii) A person who is incapacitated or vulnerable will only need to attend as a witness to give oral evidence where the tribunal determines that the evidence is necessary to enable the fair hearing of the case and his welfare would not be prejudiced by doing so. (ix) Where an incapacitated or vulnerable person does give oral evidence, detailed provision is to be made to ensure his welfare is protected before and during the hearing. (x) It is necessary to give special consideration to all of the personal circumstances of an incapacitated or vulnerable person in assessing his evidence (paras 21, 31, 47, 50).

Practice Direction (First-tier and Upper Tribunals: Witnesses) [2009] 1 WLR 332Not on Bailii!, UT considered.

Stephanie Harrison QC and Raza Halim (instructed by Solicitor, Brighton Housing Trust, Immigration Legal Service) for the claimant.

David Blundell (instructed by Treasury Solicitor) for the defendant and the intervener.

Matthew Brotherton, Barrister

CASES DATABASE

Full judgment: BAILII!

Subject(s):

  • Litigation friend cases🔍
  • Repatriation cases🔍

Date: 27/7/17🔍

Court: Court of Appeal (Civil Division)🔍

Judge(s):

Parties:

  • AM (Afghanistan)🔍
  • Secretary of State for the Home Department🔍
  • Lord Chancellor🔍

Cited by:

Citation number(s):

What links here:

Published: 26/7/19

Cached: 2019-10-22 22:03:00