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Unrepresented litigant must understand nature of case against her

Unrepresented litigant must understand nature of case against her

In an interesting short Upper Tribunal judicial review determination, Upper Tribunal Judge Coker finds on the facts of the particular case that a judge in earlier, separate proceedings had erred in failing to ensure that the reasons for refusal of asylum were properly put to an unrepresented litigant in person. This was a procedural error that meant there had not been a fair hearing and therefore the original findings of fact could not lawfully be relied on by the Secretary of State later when refusing a fresh claim in subsequent litigation.

The case is R (on the application of Saboun) v Secretary of State for the Home Department IJR [2015] UKUT 269 (IAC):

The reasons for refusal letter is 7 pages long, 3 ½ pages of which deal with the substantive and significant elements of her claim and credibility challenges. It cannot reasonably be concluded that this applicant knew the basis of the refusal of international protection or that she had a reasonable opportunity to put her case to the First-tier Tribunal judge. Given that this international protection claim is based upon the very personal nature of her circumstances, it was incumbent upon the First-tier Tribunal judge to ensure that the applicant was aware of the nature and extent of the challenges to her credibility and not merely restrict her evidence to answering questions on her circumstances. Unless and until she was aware that particular elements of her account were not accepted and the reasons why they were not accepted, the applicant could not address those in her evidence. It may be that the applicant’s former solicitors identified those matters to her and obtained her explanation. But that is not apparent from the attendance note. The judge did not ask the applicant whether anyone had read the reasons for refusal letter to her and did not read it to her himself or put the points to her. It is unsafe in a protection claim where the consequences could, if her account were accepted, be such as to result in her being granted protection, to find that the respondent’s reliance on the credibility findings of the First-tier Tribunal was legally sustainable.

The outcome does turn on the particular facts of the case but it is a useful example of an exception to the normal Devaseelan principle.

Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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