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

In asylum judicial review, past ill-treatment does not by itself establish a well-founded fear of future persecution. The assessment may take account of available domestic redress and whether internal relocation is reasonably available and would not be unduly harsh. A previous move within the country does not necessarily demonstrate internal flight if it was not made to avoid persecution. The asylum inquiry is sequential: the decision-maker first determines whether there is a well-founded fear of persecution and only then considers whether the persecution is for a Convention reason. If the claimant fails at the first stage, the adjudicator need not determine the alleged Convention ground. Judicial review is not an appeal on evidence that was not placed before the first-instance fact-finder.

Mr Iosif Todorovici claimed asylum after alleging serious ill-treatment by Romanian police. The Special Adjudicator accepted that he had suffered physical attacks, potentially amounting to torture, but found no reasonable likelihood of future persecution because domestic redress was available and he could relocate within Romania without undue hardship.

The Immigration Appeal Tribunal upheld that determination. Mr Justice Jackson rejected the application for judicial review, finding the Special Adjudicator’s conclusions unassailable in law. The matter came before the Court of Appeal as a renewed application for permission. The issues included internal relocation, the introduction of evidence not presented to the Special Adjudicator, whether alleged imputed political opinion had to be considered, and whether the Tribunal should have raised Convention-law points on its own motion.

Application refused. Lord Justice Buxton refused permission to move for judicial review and refused permission for leave to appeal the decision.

1. Future risk and internal relocation. The Special Adjudicator was entitled to consider the applicant’s failure to pursue appropriate and available action within the Romanian legal system against the police. She was also entitled to find that he could travel and conduct his business elsewhere in Romania, and that relocation would not be unduly harsh. His earlier move to Turda did not establish internal flight because, placed in its proper chronological context, it was not made to avoid persecution.
2. Limits of judicial review. Evidence allegedly showing that the applicant had complained to higher authorities had not been placed before the Special Adjudicator. Judicial review is not an appeal, and particularly not an appeal based on evidence which was not before the first-instance decision-maker. The applicant could not impugn the determination on that basis.
3. Sequential asylum inquiry. The first question was whether the applicant had a well-founded fear of persecution. The second was whether the feared persecution would be for a Convention reason. Having failed at the first stage, the applicant did not require a determination of whether the police had acted because of imputed political opinion, disapproval of his wife’s views, or another Convention ground.
4. Unargued points. The High Court was right to reject the argument that the Immigration Appeal Tribunal should have identified and raised Convention-law points on its own motion, relying on R v Secretary of State for the Home Department [1998] QB 196.

The Special Adjudicator’s findings were properly reasoned and the Immigration Appeal Tribunal and High Court disclosed no error of law.

1. Court of Appeal (Civil Division): Refused the renewed application for permission to move for judicial review and refused permission for leave to appeal the decision.
2. High Court of Justice: Mr Justice Jackson rejected the judicial review application and held that the Special Adjudicator’s findings were unassailable in law.
3. Immigration Appeal Tribunal: Upheld the Special Adjudicator’s determination and found no error of law.
4. Special Adjudicator: Accepted the evidence of past ill-treatment but rejected the asylum claim, finding no reasonable likelihood of future persecution and that internal relocation would not be unduly harsh.