AL (Albania) [2019] EWCA Civ 950 is a new Court of Appeal judgment which says some important things about the approach a tribunal judge should take to factual findings made by another tribunal judge in a related appeal. In this case, AL’s elder brother had claimed asylum on much the same basis as AL and had won his appeal before a tribunal judge in 2013 – but the tribunal hearing AL’s appeal in 2016 departed from those findings and dismissed AL’s appeal.

The court confirmed that the findings of the first judge are the starting point for the second judge, who should only depart from the previous findings if there is a very good reason to do so. However, on the facts, the court found that there had been a very good reason to depart from the previous findings.

The case is also important because of its facts. It is a case in which, troublingly, the Home Office shared information about an asylum seeker with the Albanian authorities and used information from them to discredit the asylum seeker’s case – a practice which has become increasingly common.

Appellant not credible despite earlier tribunal finding his brother credible

The appellant, a young Albanian, had claimed asylum because of a blood feud, a type of claim I discussed in a recent post. AL’s brother had arrived in the UK a couple of years before him and had claimed asylum on the same basis. The brother had won his appeal to the First-tier Tribunal in 2013 and had been found credible.

At AL’s appeal in 2016, however, the Home Office relied on new evidence. The department had conducted checks with the Albanian authorities which, purportedly showed that AL’s uncle had not immediately fled the blood feud as AL claimed. There was evidence that the uncle had not left Albania for Greece until nearly a month after the event allegedly triggering the blood feud, and had since travelled back and forth several times.

The appellant was found not to be credible by the First-tier Tribunal. He appealed on the basis that the Tribunal had failed to treat his brother’s determination as a starting point. However, the Upper Tribunal dismissed his appeal.

The approach to the previous tribunal’s determination

On appeal to the Court of Appeal, AL pointed out firstly that the Upper Tribunal had misread AA (Somalia) [2007] EWCA Civ 1040. AA (Somalia) is the leading authority on the approach to be taken by tribunal judges where findings of fact have been previously made by a judge not in the appellant’s own appeal, but in that of a family member. In AA (Somalia), Lord Justice Hooper’s judgment appears first, and the Upper Tribunal had wrongly treated it as the judgment of the court, when in fact it represented a minority view – it was Lord Justice Carnwath whose view represented the majority.

The appellant argued therefore that the First-tier and Upper Tribunals had applied the wrong approach to the findings in the elder brother’s appeal, and that the evidence needed to be particularly strong to justify re-opening those findings.

The Court of Appeal rejected this argument, providing some clarification as to the proper approach to previous tribunal determinations:

• […] In AA (Somalia) Carnwath and Ward LJJ (Hooper LJ dissenting) held, applying Ocampo, that in such a case the guidelines given by the Immigration Appeal Tribunal in Devaseelan apply. Those guidelines begin with the premise that the first tribunal’s determination should be the starting point.
• The fundamental difficulty for the appellant is that the ground of appeal pursued by him before the UT was that the FTT had failed to treat the previous determination in R’s case as the starting point for findings of fact. It went no further. The appellant’s case now appears to be that the FTT and the UT should have approached the earlier determination in R’s case as something stronger than a starting point when making its findings of fact in the appellant’s case. This is contrary to his ground of appeal before the UT and is inconsistent with the guidance in Devaseelan, upheld by the Court of Appeal in Ocampo and AA (Somalia).
• Further, following the Devaseelan guidelines, not only is the earlier determination the starting point, it should be followed unless there is a very good reason not to do so…

But in this case, Davies LJ found that there was a “very good reason” to depart from the previous tribunal’s findings, namely the Home Office evidence about AL’s uncle’s movements. Although the Upper Tribunal had referred to Hooper LJ’s minority judgment in AA (Somalia), this did not represent a material error of law, as both tribunals had identified the correct guidance and followed it.

The difficulty of challenging evidence from the Albanian government

AL also challenged the adequacy of the new Home Office evidence, which consisted of a British Embassy letter submitted on the morning of the First-tier Tribunal hearing summarising the information obtained from the Albanian authorities. He argued that the underlying evidence should have been disclosed, rather than a summary. In rejecting this argument, the court held at [34]:

i) The appellant was in a position, through contact with his own family, to make enquiries as to his uncle’s movement between Greece and Albania. He was on notice of the allegation for some seven months prior to the FTT hearing. The appellant had the ability to access information, he had the time to do it, this would have enabled the appellant to respond to the evidence of his uncle’s travels. As found by the FTT, the appellant altered one aspect of his evidence to reflect the identified travel movements of his uncle in the month following the blood feud. The evidence of the uncle’s travels was not evidence, the primary source of which was inaccessible to the appellant. The analogy sought to be drawn with EURODAC data is misconceived. The appellant and his family were in a better position than many to check up on the accuracy of the alleged travel by his uncle. Moreover, had there been real concerns at the FTT hearing as to whether the evidence was accurate an adjournment could have been sought by the appellant’s legal representative in order to challenge the evidence. The appellant was able to and did comment upon the reliability of the respondent’s evidence of his uncle’s travels.

ii) The respondent’s evidence of the uncle’s travels was but one of the findings relied upon by the FTT in concluding that the appellant was not a credible witness.

This approach is, with respect, somewhat troubling. Where the Home Office is sharing asylum seekers’ personal data with the Albanian authorities – itself a potential breach of Article 22 of the Procedures Directive and/or the GDPR – and obtaining information of this kind, it puts asylum seekers and their representatives in a difficult position. Without having any insider knowledge of the workings of the Albanian Border and Migration Department and how data about border crossings is compiled, stored and shared, they are not in a position to mount a meaningful forensic rebuttal to the Home Office’s assertions. The appellant may have been able to ask his family about his uncle’s travels, but it ultimately came down to his word against that of the Albanian authorities.

Lawyers preparing these cases should be prepared for the possibility that information will be obtained from the Albanian authorities and used against their clients. Expert evidence may be of assistance. An event is taking place at Garden Court Chambers on 19 June 2019 to share best practice in preparing Albanian asylum cases and challenging adverse decisions.