The Court of Appeal allowed the appeal, holding that the Tribunal erred in law when it found that (1) the claim made by the Appellant (that he feared persecution by members of a secret society) was not credible; and (2) the Appellant could live in his home town and evade danger.

Appeal

• Permission to appeal to the Court of Appeal granted by the Court of Appeal (13 December 2005)
• Permission to appeal against decision of 29 June 2005 dismissed by the Tribunal (27 July 2005)
• Appeal dismissed by fresh Immigration Adjudicator (29 June 2005)
• Appeal against decision of 26 February 2004 remitted by the Tribunal to fresh Immigration Adjudicator (9 February 2005)
• Appeal dismissed by fresh Immigration Adjudicator (26 February 2004)
• Appeal remitted by the Tribunal to fresh Adjudicator (17 October 2003)
• Appeal dismissed by Adjudicator (4 February 2003)
• Application dismissed by the Secretary of State (2002, day and month of decision unknown)

• Remitted to the Tribunal for further findings (outcome unknown)

Immigration and Asylum

HK, the appellant, was born, around 1980 in Kambia, in the northwest of Sierra Leone, where he was subsequently raised. (para. 2) He belongs to the Temne ethnic group, the main such group in northern Sierra Leone. From 1977 to 1982 his father was associated with the regime then in power in Sierra Leone: when that government lost power, “he became a businessman.” (para. 6) In 1995, during the Sierra Leonean civil war, Kambia was attacked by rebels, who invaded the appellant’s family home, killed one of his sisters, raped another, and caused a third sister of his, and also his father, to disappear. (ibid.) “HK himself was injected” by the rebels with drugs, suffered other forms of ill-treatment at their hands, and was then forced by the rebels to join them, as was another of his sisters. The rebels also killed his mother. (ibid.)

Three or four years later, “HK and his sister were” freed, and found themselves able to return home. Sometime in “late 1998 or early 1999, HK joined a football team in Freetown”, the capital of Sierra Leone. (para. 7) Freetown was invaded by the rebels in 1999, after which event HK returned to his home village. Five weeks later his home village was attacked, and he was only able to return there “at the beginning of 2002. In February 2002”, the appellant relocated “to Bo district in the south of” Sierra Leone (located about seven or eight hours’ travel away), where he hoped “to join the local football team.” (ibid).

While in Bo district, the appellant was attacked by a group of persons belonging to the Mende ethnic group, the main such group in southern Sierra Leone. The appellant stated that he was made a target because of his father, whom his antagonists knew to have been politically involved under the old government (it was his family’s rare surname that identified him to these persons, or so he said). (para. 8)

“HK said these members of the Mende” ethnic group forced him to accompany them “into the bush.” (para. 9) They walked through the bush for two days, before stopping at a place where HK saw, lying on the ground, some bones. He noticed also that there were three leaves arranged in a peculiar pattern. There, one of his captors made three incisions “on the left side of his chest, and” told him that his throat was going to be cut. Next (according to HK’s account), the men then “dug a hole”, into which they forced him to insert his penis. At this place, also, there were numerous poisonous ants, which crawled on HK and bit him. As this was going on, HK stated, “the men sang a song saying that he was going to join” the Wunde society, which was known to him as a society that perpetrated acts of terror against other people. (ibid.)

HK was bound and tied and left in the bush for ten hours. At this point, a man arrived who “told him in the Temne language that the Mende” people who had captured him “intended to kill him as a sacrifice.” (para. 10) This man told HK that he would help him by loosening the bonds that held him, and after he did so, HK would be able to escape. The man did this, and HK was able to escape. Several weeks later, after this escape, HK returned to his village after walking through the bush. There, he had to hide, as he believed that his life was in danger. If he were found by persons belonging to the Wunde society, the scars would indicate to those persons that he had escaped from them before he been made a full member of the Wunde. (ibid.)

As a result, HK felt forced to flee from Sierra Leone. He arrived by plane in the United Kingdom on 10 May 2002, and applied for asylum a few days later. (para. 11)

HK’s asylum application was made on the basis that, in Sierra Leone, he he feared persecution by members of the secret society known as the Wunde. He feared this persecution, he stated, because he had been partially and forcibly initiated into that secret society, after which he had escaped from it. (para. 10) The text of the decision, however, leaves unclear the the particular grounds of the Refugee Convention (membership in a particular social ground, religion) on which the case was based: this aspect of the case does not seem to have been disputed by HK.

The application for asylum made by the appellant was refused, after which it passed through several lengthy procedural stages.

The Tribunal’s decision subject to this appeal refused the application on two grounds: (1) the Appellant’s account of experiences in the Bo district of Sierra Leone in February and March 2002 was found to be not credible; and (2) even if that evidence had been credible, HK enjoyed the option of living in his home town of Kambia, where he could organize his life so as to reasonably be assured of evading danger.

Prior to its detailed consideration of the Tribunal’s refusal of the claim made by the appellant the Court of Appeal discussed its jurisdiction to interfere with the Tribunal’s findings on facts and errors of law in this case. The division of this section into three parts reflects this reasoning by the Court of Appeal.

I. Court of Appeal’s ruling on its jurisdiction

The Court of Appeal noted that two of the reasons presented for the dismissal of HK's appeal involved either the making of findings of fact, or the use of such findings to draw inferences. The Court of Appeal is normally expected to not interfere with such conclusions, given that its jurisdiction is limited to those cases where the Tribunal has made an error of law, and where that error of law has “resulted in a decision which should not stand.” (para. 24)

Referring to the case of E -v- Secretary of State [2004] QB 1044, the Court of Appeal specified s that ‘a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law’. (para 25) It added that a perverse conclusion, where a finding of fact is concerned, is an aspect of an error of law, because it must involve a finding of fact which, provided it deals with a material issue, is irrational or unreasonable, or entirely unsupported by the evidence. R(Iran) -v- Secretary of State [2005] EWCA Civ 982, para 11. (ibid.) Moreover, in Miftari v SSHD [2005] EWCA Civ 481*,* the Court of Appeal clarifed the meaning of the word ‘perverseness’, specifying that the intended meaning, here, is that of a demanding concept. (para. 27)

The particularly problematic nature of fact finding in asylum cases was reemphasized by the Court of Appeal, which in doing followed precedents of its own ‒ see for instance Gheisari -v- Secretary of State [2004] EWCA Civ 1854, paras 10, 12, 20-21. It went on to add that, in a way ‘relatively unusually for an English Judge, an Immigration Judge has an almost inquisitorial function, although he has none of the evidence-gathering or other investigatory powers of an inquisitorial Judge. That is a particularly acute problem in cases where the evidence is pretty unsatisfactory in extent, quality and presentation, which is particularly true of asylum cases. That is normally through nobody’s fault: it is the nature of the beast.’ (ibid.)

The Court of Appeal went on to discuss how, although the standard of proof employed when assessing the fear of persecution may be low, it should be remembered that many asylum cases may centre on stories that may seem unlikely, but which may not be, by virtue of their apparently unlikely nature, untrue. (para. 28) The various elements of such stories must be considered in light of the country evidence and reliable expert evidence available to those charged with their assessment, and also according to their “consistency with” statements made by the applicant, “and any other factual evidence” that may be available. (ibid.)

A point stressed by the Court of Appeal was that, in the asylum context , it is “not proper to reject an applicant's account solely on the” grounds that it lacks credibility or is “not plausible”: here, the court cited the case of Awala v Secretary of State [2005] CSOH 73, para 22: “To say that an applicant's account is not credible is to state a conclusion” (para. 30) Where a story is rejected on the grounds of its implausibility, this must be done “on reasonably drawn inferences and not simply on conjecture or speculation”. Awala v Secretary of State [2005] CSOH 73, para 24. (para. 30)

Finally, the Court of Appeal reemphasize the point that whereas a decision maker may rely on his common sense when judging the plausibility or otherwise of a story, there will be cases which cannot be judged by the social and cultural standards prevailing in Scotland, and which must be considered, rather, within the context of the “applicant’s social and cultural background.” (ibid.)

Bearing all this in mind, the Court of Appeal then went on to consider the finding of facts in HK’s case, and the question of whether the available evidence allowed those facts to be sustained.

II. Court of Appeal’s ruling on HK’s case: assessment on the Tribunal’s rejection of HK’s evidence

1. HK’s father, the tribunal noted, had ceased his participation in politics two decades prior to the events described in HK’s claim: therefore, the Tribunal found, there was no reason why people belonging to the Mende ethnic group and resident in Bo should have recognized HK himself. (para. 32)

However, the Court of Appeal found this reason for disbelieving the applicant to be a weak one. Lacking any evidence concerning the functions performed played by HK's father‘s in the government, which it would “have been open to the Secretary of State to produce”, it is conceivable – and not implausible – that those functions would have been of a kind such as to attach an element of notoriety to his name even two decades later. (para. 34)

2. The Tribunal had found nothing to support HK's assertion that his surname is so unusual as to make him easily or inevitably identifiable as the son of his father. (para. 32)

The Court of Appeal found this to be “misconceived” and inappropriate: if HK had said that his surname was unusual, the Tribunal could reject that evidence only on some factual basis. Where such a basis was absent (as here), the rejection of this evidence was based “on speculation”, and, as such, was “impermissible.” (para. 35)

3. An expert report by Professor Leach had been submitted in corroboration of the appellant’s claim by those representing him. The Tribunal could discern nothing in this report that might suggest why the Wunde (a secret society whose members were described as being of Mende ethnic origin) would wish to initiate a person belonging to the Temne ethnic group​. (para. 32)

Nevertheless, the Court of Appeal noted, the occurrence of such an event was not ruled out or contradicted by anything Professor Leach had said in her report. On the contrary, in her capacity as an expert, she had described HK's story as “plausible”, and had also emphasied the point that information available concerning the Wunde was limited in nature. (para. 36)

4. While the Tribunal did find that the medical report included references to marks on the penis of HK, it did not feel able to “corroborate the story that he” had told concerning the origin of those marks. (para. 32)

The Court of Appeal found this reason to be “unjustified”: it concluded that the scarring on HK‘s penis was “consistent with” the story he had provided of his forced and incomplete initiation. (para. 37)

5. The Tribunal found that although HK did have, as he claimed, “three scars on his chest, there was nothing to” corroborate his claim that they had been made during an “initiation ceremony”, and there was, equally, no evidence provided to demonstrate that such scarring was a normal part of the Wunde secret society or its initation rites. (para. 32)

The Court of Appeal found this reasoning to be unpersuasive: it pointed out that there was no reason to think “that a group other than the Wunde” might have “inflicted the wounds” on HK's chest. The experts consulted had not suggested that the scars were not produced in the manner claimed by HK, and it was not reasonable to expect HK to produce confirmatory evidence where this point was concerned. (para. 38)

6. HK’s account of his escape from the initiation ceremony into which he had been forced was found, by the Tribunal, to be not credible. The Tribunal argued, on this point, that if events had taken place as HK described, his escape from his putative captors could not have been as easy as his account implied. (para. 32)

This reason for dismissal was, the Court of Appeal found, “more defensible”, but it stated that the way HK was said to have escaped was neither absurd nor inconsistent with any other evidence. (para. 39)

7. The Tribunal found that, in spite of the fact that Professor Leach was, by her experience and training, a recognised expert in the relevant area, and in spite of the fact that she possessed knowledge of the Mende, part of her report was necessarily speculative in nature, given the paucity of her knowledge concerning Wunde initiation ceremonies specifically. (para. 32)

The Court of Appeal stated that it was not impressed with this reason. “While Professor Leach's evidence” may have been limited, “it was not appropriate to dismiss it completely.” She was an expert, and her views were based on her expertise, and likewise on her experience in the field in Sierra Leone. This meant that her views, even on those points of HK's evidence of which she admitted she had no knowledge, were of an expert nature. Whereas the Tribunal was allowed not to accept her evidence, it was wrong of the Tribunal to dismiss that evidence as being not of assistance. (para. 40)

8. The Tribunal found that the evidence provided by two medical experts had involved an assumption on their part that HK’s story was true, and that this evidence was therefore unhelpful. (para. 32)

This was found to be an unsatisfactory reason by the Court of Appeal. The story narrated to the two medical experts by HK was consistent with that related by him to the Tribunal. Moreover, “the unusual existence of [the] non-venereal scars”, for which “any other explanation” was absent, “was significant.” (para. 43)

In light of the above, the Court of Appeal considered “whether the Tribunal’s rejection” could, nevertheless, be allowed to “stand.” Not all of the reasons provided by the Tribunal for its decision had failed to survive scrutiny: the question, therefore, was whether the Tribunal would have reached the same decision had it had to rely solely on those reasons which had survived scrutiny by the Court of Appeal. In this case, the Court of Appeal concluded it could not be said with confidence that reliance on those surviving reasons would have permitted the Tribunal to reach the same conclusion as it previously did. (para. 45)

III. Court of Appeal’s ruling on HK’s case: an assessment of the Tribunal’s finding of ‘no risk in any event’

The Tribunal found that, even if HK’s account was true, there would be, in the event of his returning to Sierra Leone, “no risk in any event” (para. 51):

1. The Tribunal reasoned that they could not discern “any reason why the Wunde would wish to [pursue] HK to Kambia”: travel from the Bo district to Kambia requires a long journey of at least eight hours. (ibid.)

The Court of Appeal noted several problems with this reason. While the Tribunal had “dismissed Professor Leach's evidence as” being “mere speculation”, it had done so without even referring to any of the details provided in her testimony. Given that Professor Leach had also said that the Wunde secret society possessed power and connections throughout Sierra Leone, the Tribunal should, therefore, have considered her evidence. Furthermore, evidence to the contrary was lacking, and the Tribunal had “no basis in terms of [its] experience” to support its finding on this point. (para. 53)

2. The Tribunal found that that the possibility of HK being “recognised as the person who had been” abducted and held against his will in the bush was not a likely one. (para. 51)

The Court of Appeal found it difficult to adequately weigh this particular reason. It considered it, indeed, to be an exercise in “pure speculation. In the absence of any [relevant] evidence,” it was not possible to assess the likelihood of HK either being remembered for his appearance, or to assess either the extent to which his former captors had been able to retain their memories of him. While “it was open to the Tribunal to rely on this reason,” greater “consideration should have been given to” the extent of “its factual basis.” (para. 55)

3. The marks on HK’s chest, the Tribunal found were such as to make it possible for him to hide those marks by wearing a shirt.

The Court of Appeal found this to be a reason requiring careful consideration. It found, also, that the Tribunal had failed to perform the careful consideration required concerning this reason, and that it had not engaged in any discussion of the likely consequences that might ensue from HK having wear a shirt on all conceivable occassions, public or private.

4. The Tribunal argued that it would be possible for HK to alter the scars on his chest. (para. 51)

The Court of Appeal found the conclusion made by the Tribunal on this point to be inappropriate. It was not reasonable, “for the Tribunal to conclude that” the appellant could seek “plastic surgery” that might obscure or remove his scars. The availability, cost, and difficulty of such surgery were all unknown, as was the extent of the invasiveness of such surgery, and it was not easy to see how, in such circumstances, a person could be reasonably expected to seek this kind of plastic surgery. (para. 57)

In conclusion, the Tribunal’s reasons were not found to have survived the analysis to which the Court of Appeal subjected them, and this applied to the secondary issues also. (para. 58) The Court of Appeal therefore allowed HK‘s appeal. (para. 63)

• “[I]n many asylum cases, some, even most, of the appellant's story may seem inherently unlikely but that does not mean that it is untrue. The ingredients of the story, and the story as a whole, have to be considered against the available country evidence and reliable expert evidence, and other familiar factors, such as consistency with what the appellant has said before, and with other factual evidence (where there is any).” (para. 21)

• “Inherent probability, which may be helpful in many domestic cases, can be a dangerous, even a wholly inappropriate, factor to rely on in some asylum cases. Much of the evidence will be referable to societies with customs and circumstances which are very different from those of which the members of the fact-finding tribunal have any (even second-hand) experience. Indeed, it is likely that the country which an asylum-seeker has left will be suffering from the sort of problems and dislocations with which the overwhelming majority of residents of this country will be wholly unfamiliar. The point is well made in Hathaway on Law of Refugee Status (1991) at page 81 ‘In assessing the general human rights information, decision-makers must constantly be on guard to avoid implicitly recharacterizing the nature of the risk based on their own perceptions of reasonability.’” (para. 22)

• “[T]here will be cases where actions which may appear implausible if judged by​ Scottish standards, might be plausible when considered within the context of the applicant's social and cultural background.” (para. 30)

• “Further, without condescending to details, it does not seem to me that there is anything in the Tribunal's point that it is difficult to envisage how a group of young men could have got HK, who was trussed up at the time, to lie in such a way that his penis was in a hole which they had dug.” (para. 37)

• “To reject HK's story partly because there was no independent evidence that his scarring was typical of the Wunde, when there was no evidence to doubt it, was as unjustified as the Tribunal's unsubstantiated rejection of his evidence that his surname was unusual.” (para. 38)

• “The idea that one of his captors might take pity on him is not inherently improbable, though it could fairly be characterised as a stroke of luck. The notion of a Temne speaker helping him was thought to be credible by Professor Leach for the reason she gave.” (para. 39)

• “Professor Leach was an undoubtedly relevant expert, and she produced what appears to have been a full, balanced, and informed report, which, on a fair reading supported HK's story, albeit to a limited extent. In particular, to my mind, it supported some aspects of his evidence which might otherwise have seemed dubious (e.g. the existence of the Wunde, the initiation in the bush, the scarring on the chest, the use of biting ants, the presence of body parts and three leaves on the path, the presence of a Temne speaker).” (para. 41)

• “The Tribunal were unimpressed with the views of the two doctors that the marks on HK's penis were consistent with his story. However, the unusual existence of such non-venereal scars on (and only on) that organ, coupled with the absence of any other explanation, was, as mentioned, plainly significant, although, it should be emphasised, not by any means necessarily decisive.” (para. 43)

• “In public, it may be unreasonable to expect him to wear a shirt all the time, bearing in mind that Sierra Leone can get very hot. It may well therefore be unfair to expect him to wear a shirt, not least because, if he does so, it may result in some people having suspicions about what he has to hide.” (para. 56)

• “To my mind, the appeal illustrates - with unusual clarity - the very difficult task faced by decision makers in a case where the applicant gives an account of facts which, if they occurred, took place in an environment which is wholly outside the experience of the decision taker and in circumstances in which there is very little relevant in-country material or expert evidence against which the applicant's account can be tested.” (para. 70)

• “There is no finding that he does not, himself, believe that he would be at serious risk; nor that, if he were identified as one who had witnessed (without completing) a secret initiation ceremony, his life would not be in danger. The tribunal was not in a position (on the material before them) to conclude that the scars on the applicant's chest would not mark him out to those who might be concerned to protect the secrets of the Wunde initiation rites; and were not in a position to conclude that those scars could be reliably concealed or disguised.” (para. 73)

• Convention relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137 (Refugee Convention) art 1A(2)

• E -v- Secretary of State [2004] QB 1044
• R(Iran) -v- Secretary of State [2005] EWCA Civ 982
• Miftari v SSHD [2005] EWCA Civ 481
• Gheisari -v- Secretary of State [2004] EWCA Civ 1854
• Awala -v- Secretary of State [2005] CSOH 73

As the Court of Appeal itself stated, this was a case clearly illustrating the difficulties involved in judging claims where the account of facts provided by an applicant refer to an environment alien to the Western experience, and where those facts have only the meagrest in-country material or expert evidence to support them..

In asylum cases, only a small or limited amount of documentary or other evidence may be available. This may be due, for example, to the applicant’s circumstances in his or her country of origin, which could have rendered impossible the acquisition of such evidence (EASO 2018: 43); the small size of an event, such that it has not been reported on by either internal or external observers; or the necessarily llittle information available in certain types of cases, such as those involving women, LGBTI persons, familial conflicts, and other issues that are private in nature (EASO 2018: 115).

In those cases where evidence and country of origin information are lacking, the cultural differences existing between an asylum applicant and a decision maker may make a claim appear implausible (i.e., unlikely or improbable), with consequent and adverse impacts on the applicant’s credibility. However, as the Court of Appeal warned in HK v SSHD, neither conjecture or speculation provide a basis for a finding of a lack of credibility: the examination of the reasons that may lie behind a finding of plausibility or implausibility remain important. Much scholarship has been generated noting how decision makers may often base their decisions on common sense and normative deductions (Sorgoni 2015: 47), and how they may experience difficulties difficulties when faced with the task of understanding beliefs that are from sources outside of, and alien to, their own cultural backgrounds. (Edwards 2013: 324).

These problems are particularly acute in the context of religious based persecution. Here, there will be “a tendency to oversimplify, generalise and reach unfounded assumptions about ‘[t]he complex lived experiences of religiosity and worship by people from other cultures.’” (Bianchini 2022: 948, citing McDonald 2016: 143) Beliefs may also, in such cases, be viewed “in a vacuum”, where “cultural or individual factors” are ignored and overlooked (Bianchini 2021: 3810), and where the conception of faith employed may refer to models that are “objective” or “Orientalist” in nature. (McDonald 2016: 143)

Expert evidence may thus be essential in those scenarios where decision-makers or other parties are faced with relevant issues whose understanding requires a particular expertise, an expertise that may perhaps be unavailable, such as when religion or belief issues are involved. Religious belief can be particular and personal in nature: this makes the assessment of claims for asylum on grounds of religious persecution challenging and complex. These challenges and complexities are enhanced by the fact that religious persecution encompasses several human rights violations, and is, furthermore, characterised by complex dynamics related to communal and ethnic identities, politics, and conflicts. (EASO 2018: 60). This can be observed in other cases in the CUREDI database, such as CUREDI22UK009; CUREDI22UK010; CUREDI022UK012.

In addition to the above, the case of HK v SSHD illuminates the difficulties that arise when the judicial task at hand is that of reviewing findings of facts giving rise to errors of law. Even when courts are not engaged in mere fact finding, they remain concerned with issues of evidence and credibility: this is only to be expected, as appeals may entail contesting their legality, calling into question whether the finding reached by a lower court or tribunal was accurate. Where decisions in a case centre on or are concerned mostly with facts or inferences from facts, however, higher courts such as the UK’s Court of Appeal usually display a strong degree of reluctance when invited to interfere with such decisions. For this reason, in HK v SSHD, while “the Court of Appeal set aside the decision of the Tribunal” it also cautiously stated that this should not be seen as a hostile action on its part. It also acknowledged “[t]he difficulties faced by any tribunal required to decide a case” where “unusual facts and” unfamiliar “cultural practices” are key. (para.65)

• Bianchini, Katia. 2022. “An Illustration of Anthropology’s Contribution to Refugee Law Research”. German Law Journal 23 (7): 943-959.

• Bianchini, Katia. 2021. “The Role of Expert Witnesses in the Adjudication of Religious and Culture-based Asylum Claims in the United Kingdom: the Case Study of ‘Witchcraft’ Persecution”, Journal of Refugee Studies 34 (4): 3793‒3819.

• Edwards, Susan S M. 2013. “The Genocide and Terror of Witchcraft Accusation, Persecution and Related Violence: an Emergency Situation for International Human Rights and Domestic Law” International Family Law 322‒330.

• European Asylum Support Office (EASO). 2018. “Evidence and Crdibility Assessment in the Context of the Common European Asylum System”.

• Hathaway, James. 1991. Law of Refugee Status. Cambridge: Cambridge University Press.

• McDonald, Douglas. 2016. “Escaping the Lions: Religious Conversion and Refugee Law”. Australian Journal of Human Rights 22 (1): 135‒158.

• Sorgoni, Barbara 2015. “Anthropology and Asylum Procedures and Policies in Italy”. In Elisabeth Tauber and Dorothy L. Zinn (eds), The Public Value of Anthropology: Engaging Critical Social Issues through Ethnography, 31‒60. Bozen-Bolzano: bu.press.