Tientchu, R (on the application of) v Immigration Appeal Tribunal

Whether state action constitutes prosecution or persecution depends on all the circumstances. The fact that conduct is unlawful, or that detention or proceedings appear regular, does not establish legitimate prosecution. An adjudicator must examine whether the proceedings are politically motivated, used to repress political activity, or involve excessive, disproportionate or otherwise improper state action. The adjudicator must assess the evidence and background as a whole and must not treat the existence of an alleged public-order offence as resolving the issue. Where the reasoning fails to conduct that inquiry, the determination is legally flawed.

The appellant, a Cameroonian national and member of the Social Democratic Front, claimed asylum after arrest, detention and subsequent summonses and a wanted notice concerning alleged illegal political activity. The Secretary of State rejected her claim. A special adjudicator found parts of her account credible but concluded that the relevant state action suggested prosecution rather than persecution. The Immigration Appeal Tribunal refused leave to appeal. Ognall J and Jackson J subsequently refused permission for judicial review, Jackson J treating the challenge as directed principally to findings of fact. The central issue before the Court of Appeal was whether the adjudicator had erred in law by treating the apparent unlawfulness and regularity of the proceedings as sufficient to distinguish prosecution from persecution.

The appeal was allowed unanimously. The adjudicator’s determination and the Immigration Appeal Tribunal’s refusal of leave could not stand.

1. Distinction between prosecution and persecution. A prosecution for legitimate and acceptable reasons will not ordinarily amount to persecution. However, prosecution or detention may amount to persecution where it is politically inspired, used to repress political activity, or accompanied by excessive, disproportionate or criminal state conduct indicating a political motive.
2. All the circumstances must be considered. Whether state action is prosecution or persecution is a question of fact requiring assessment of the whole evidential picture. Relevant matters included the reason for the arrest, the political character of the activity, the nature of the proceedings, the state’s motive, the description of the alleged conduct in the documents, and the proportionality and propriety of the treatment.
3. Error in the adjudicator’s approach. The mere fact that the appellant’s conduct was described as unlawful, or that summonses and a wanted notice appeared genuine and related to legal proceedings, did not establish legitimate prosecution. The adjudicator had begun the inquiry correctly but had not pursued it to the necessary conclusion. He had instead assumed that unlawful activity and apparently regular proceedings resolved the issue.
4. Disposition. Given the ambiguity in the findings and the need for a fresh assessment, the matter was remitted to a different special adjudicator for determination of the appellant’s appeal against the Secretary of State’s refusal of refugee status. The appeal was allowed with costs.

1. Court of Appeal (Civil Division): allowed the appeal, quashed the adjudicator’s determination and remitted the matter to a different special adjudicator.
2. Administrative Court: Jackson J refused permission for judicial review on 28 February 2000. Ognall J had earlier refused permission on the papers.
3. Immigration Appeal Tribunal: refused leave to appeal against the special adjudicator’s determination.
4. Special adjudicator: rejected the asylum claim, finding that the relevant conduct suggested prosecution rather than persecution.