The claimant was an asylum seeker who sought to appeal the decision of an immigration judge which ordered his removal from the UK.

Although the claimant posited that he had two children in the UK, the immigration judge held that he should be removed from the UK because on balance article 8 of the Convention (right to respect for family and private life) was in favour of his removal given that no evidence was given by the mothers of the claimant’s children and that the explanation for this absence was unsatisfactory.

Permission for appeal was granted but it came to light that at the time of the reconsideration hearing, the claimant’s new partner was illegally in the UK as her asylum claim had been dismissed. Therefore, the claimant’s claim to be entitled to family life on the basis of his family life with his second daughter and his intention to marry the mother was unsustainable.

The claimant appealed inter alia on the grounds that the immigration judge would not have come the decision he did if he had not speculated about the evidence brought before him, and instead had merely assessed the claimants credibility in light of the evidence brought before him.

At appeal the court held that where evidence was readily available a judge may take into account failure to provide such evidence, and that if there was no credible explanation for the failure to produce the supporting evidence, it could be a strong pointer that the account given was not credible and a judge committed no error of law when he relied on that failure as the reason for rejecting the account of a claimant .

In the present case the claimant had provided no credible explanation as to his failure to call his new partner or as to his misleading statement to the immigration judge as to her immigration status. The approach of the judge on the evidence before him was an approach he was entitled to take in assessing the claimant’s credibility and in reaching his conclusion that the family life was not as strong as the claimant claimed.

The Appeal was accordingly dismissed.