The High Court has granted an anonymised asylum applicant leave to appeal a legal question about how decision-makers must address information about conditions in an applicant’s country of origin. It also awarded the applicant full costs, subject to conditions linked to pursuing the appeal.
Mr Justice Richard Humphreys delivered the judgment on 21 December 2015. The application followed an earlier decision refusing to quash a Refugee Appeals Tribunal determination. At this stage, the court considered the applicant’s request for a certificate permitting an appeal under the Illegal Immigrants (Trafficking) Act 2000, along with costs.
The certified question is whether an asylum decision-maker must give a narrative discussion of country of origin information when the decision does not positively reject that information, including where the applicant’s credibility is rejected generally. The court explained that positive rejection means a decision that is positively inconsistent with the information; it distinguished that from treating the information as irrelevant, unnecessary to the decision or insufficiently supportive of the claim.
The judge said the issue concerned a conflict between High Court approaches and could arise repeatedly in asylum cases. He granted leave after finding the statutory requirements met, including that the point involved exceptional public importance and that an appeal was desirable in the public interest. The judgment did not decide the certified question; it enables the applicant to take it to the Court of Appeal.
The court declined to certify a separate proposed appeal point about whether the Refugee Applications Commissioner should investigate the authenticity of documents. That issue had not been pleaded in the case, and an appeal on the same issue was already under way in another case.
On costs, the judge ordered the respondents to pay the applicant’s full costs, including reserved costs, to be taxed if the parties could not agree. The order is conditional on the applicant undertaking to pursue the appeal expeditiously and seek priority in the Court of Appeal. It is stayed for 28 days from perfection of the order and, if notice of appeal is filed within that period, until the appeal is finally determined. If no notice is filed in time, or the appeal is withdrawn, abandoned or ends without substantive determination because of an act or omission attributable to the applicant, the stay becomes permanent.