Abdulla, Application For Judicial Review

In asylum appeals, the appellate authorities should focus primarily on the arguments advanced below and are not generally required to search for new points. A point not raised expressly may nevertheless qualify where the grounds, properly construed, embrace it. The Robinson threshold remains that an unraised point must have a strong prospect of success if permission to appeal is granted; mere arguability is insufficient.

Where the underlying asylum issue has not been properly considered and the statutory procedure will provide a further opportunity for determination, the Court of Appeal may quash the refusal of permission and direct that the appeal proceed. The court should adopt the procedurally sensible course where this causes no disadvantage and avoids a real risk that a potentially meritorious persecution claim will go unanswered.

The appellant, a Kenyan national who claimed asylum on arrival in the United Kingdom in 1995, had been detained and charged after attending an unauthorised political meeting and distributing opposition pamphlets. He left Kenya while on bail and faced outstanding charges, including failing to surrender to bail.

A special adjudicator dismissed his asylum appeal. The Immigration Appeal Tribunal refused permission to appeal, and Crane J refused judicial review of that decision. The central issue before the Court of Appeal was whether prosecution in those circumstances could amount to persecution for reasons of political opinion, and whether the point had been sufficiently raised to justify appellate intervention.

1. Appeal allowed. The decision of the Immigration Appeal Tribunal was quashed, with costs. Permission to appeal to the Tribunal was thereby deemed to have been granted.
2. The court did not lay down an abstract rule on whether prosecution for political activity constitutes persecution. That question depended on material which had not been properly addressed by the parties or the decision-makers below. The appellant’s advisers, the Secretary of State, the special adjudicator, the Tribunal and the judge had not clearly analysed the distinction between political persecution and ordinary criminal prosecution.
3. The court considered the guidance in Robinson v Secretary of State for the Home Department [1998] QB 929. The appellate authorities should ordinarily focus on the arguments advanced and need not search for merely arguable new points. However, the grounds of appeal, properly construed, embraced the point identified by the court. The court therefore declined to treat the failure to articulate it crisply as determinative.
4. The fact that the appellant had been released on bail and allowed to leave Kenya did not logically establish that he would not face persecution on return. Similarly, the later tolerance of Safina’s political activities did not necessarily resolve the significance of the outstanding charges. The relevant policy, including any amnesty, had not been established.
5. The court also considered sections 65 and following of the Immigration and Asylum Act 1999. The appellant would have a further opportunity to present the issues before the special adjudicator. Since there was no procedural disadvantage in quashing the Tribunal’s decision, the sensible course was to continue under the statutory procedure and allow the Tribunal to address the existing and any resulting appeal if necessary.

• Administrative Court: Crane J refused judicial review of the Immigration Appeal Tribunal’s refusal of permission to appeal.
• Immigration Appeal Tribunal: Permission to appeal from the special adjudicator’s dismissal of the asylum appeal was refused.
• Court of Appeal (Civil Division): Appeal allowed; the Tribunal’s decision was quashed and permission to appeal was deemed granted.