Karanakaran v Secretary of State for the Home Department

An asylum decision-maker must assess eligibility under the Geneva Convention 1951 through an administrative evaluation. The civil balance of probabilities does not impose a universal threshold upon each past or present fact. All material evidence must receive weight appropriate to its cogency. A possibility may be discarded only where the decision-maker has no real doubt that it did not occur or is not occurring.

For internal relocation, the question is whether, in all the circumstances, it would be unduly harsh to expect the particular applicant to settle in the proposed area. The likelihood and seriousness of each relevant consideration, and their cumulative effect, must be evaluated. A factor is not excluded merely because it is individually insufficient. No additional burden or standard requires proof of a serious possibility that relocation would be unduly harsh.

The appellant was a young Tamil from northern Sri Lanka. The special adjudicator accepted his account of violence, displacement and pressure from the LTTE, but concluded that he was not of specific interest to the authorities in Colombo and could reasonably relocate there. The adjudicator therefore dismissed his appeal against removal directions following the refusal of asylum.

The Immigration Appeal Tribunal dismissed a further appeal. It treated much of the evidence from four experts on conditions in Colombo as speculative. It also excluded or discounted matters such as the absence of family, housing and work, the appellant’s inability to speak Sinhalese, and the risk of detention.

The appellant appealed to the Court of Appeal. The central issues were the mode of evaluating past and present facts in asylum cases, whether a distinct standard of proof governed internal relocation, and how the decision-maker should assess whether relocation would be unduly harsh.

1. Appeal allowed unanimously. Brooke LJ delivered the leading judgment. Sedley LJ agreed with his reasoning and gave additional reasons, while Robert Walker LJ agreed with both judgments. The case was remitted to a differently composed Immigration Appeal Tribunal.

2. Per Brooke LJ, asylum adjudication is an administrative and evaluative process rather than ordinary civil litigation. The balance of probabilities does not operate as a universal threshold which excludes every past or present event that is thought probably not to have occurred. The approach actually adopted by the majority in Kaja [1995] Imm AR 1, as developed in the Australian authorities, was approved. All material considerations must be assessed and given appropriate weight. A disputed possibility may be discarded only where the decision-maker has no real doubt that it did not occur or is not occurring.

3. The established test for prospective persecution remained a reasonable degree of likelihood, or serious possibility, under Sivakumaran [1988] 1 AC 958. That test does not require each underlying fact to be separately proved to a prescribed lower standard. Equally, the civil standard cannot be used mechanically to convert probabilities into certainties or to eliminate material which may rationally affect the assessment of future risk.

4. For internal relocation, the decision-maker should ask simply whether, in all the circumstances, it would be unduly harsh to expect the particular applicant to settle in the proposed area. The test derived from Robinson [1998] QB 929 is rigorous: hardship or unpleasantness alone is insufficient. No further question arises whether there is a serious possibility that relocation would be unduly harsh.

5. The decision-maker must evaluate the likelihood of each relevant risk, the seriousness of its consequences and the cumulative effect of all relevant considerations. A consideration may be excluded only if it is trivial even cumulatively, or may safely be discarded because there is no real doubt about its factual basis. The methodology in Sayandan was approved. Factors which are individually insufficient may collectively make relocation unduly harsh.

6. Per Sedley LJ, where a well-founded fear is localised, the Convention analysis should distinguish the existence of that fear from the availability of protection elsewhere. The remaining questions are whether another part of the country is safe from persecution and whether return there would be unduly harsh. The mere availability of protection somewhere in the home state does not necessarily negate the original well-founded fear.

7. The Tribunal erred in dismissing expert evidence as speculation, treating relevant matters as inadmissible merely because they were individually insufficient under Robinson, and failing to assess their cumulative effect. The specialist Tribunal, rather than the Court of Appeal, was to determine the merits on current evidence.

1. Court of Appeal (Civil Division): In Karanakaran v Secretary of State for the Home Department [2000] EWCA Civ 11, the court unanimously allowed the appeal, awarded costs and remitted the case to a differently composed Immigration Appeal Tribunal.
2. Immigration Appeal Tribunal: On 8 April 1999, the Tribunal dismissed the appellant’s appeal from the special adjudicator.
3. Special adjudicator: On 2 June 1998, the adjudicator dismissed the appeal against removal directions, holding that relocation to Colombo would not be unduly harsh.
4. Secretary of State: In January 1996, the Secretary of State refused asylum. On 21 February 1996, notice refusing leave to enter and directions for removal to Sri Lanka were served.