Hussein-Deen v Immigration Appeal Tribunal

In assessing whether an asylum claimant has a well-founded fear of persecution, the tribunal must assess future risk holistically. Relevant matters include the claimant’s personal circumstances, past violations and threats, geographical location, country conditions, and factors increasing or reducing the likelihood of persecution. General background material may have limited value unless it bears on the claimant’s particular area and circumstances. A decision should be read as a whole. Imperfect structure or wording does not establish legal error where the reasoning shows that material considerations were taken into account and the conclusion was open to the fact-finding tribunal. Judicial review requires a material misdirection, failure to consider relevant evidence, or an irrational conclusion.

The appellant, a Sri Lankan Muslim from Batticaloa, sought asylum on the basis of feared persecution by the Sri Lankan authorities and the LTTE. The Secretary of State refused his application. A Special Adjudicator accepted his credibility but found that his past mistreatment, his father’s detention and the general conditions in Sri Lanka did not establish a reasonable chance or serious possibility of future persecution. The Immigration Appeal Tribunal refused permission to appeal.

Gage J refused judicial review. The appellant appealed, alleging that the Special Adjudicator had relied on past events, failed to assess objective country evidence and wrongly treated LTTE control of the area as decisive.

1. Appeal dismissed. The refusal of permission to appeal by the Immigration Appeal Tribunal, and Gage J’s refusal of judicial review, were upheld.
2. The applicable asylum standard was a reasonable chance or serious possibility of persecution. The assessment required anxious scrutiny, but the burden remained on the claimant to establish that the fear was well founded.
3. Following the broad approach stated by Lord Hope in Horvath v Secretary of State for the Home Department [2000] Imm.A.R. 68, all matters bearing on likelihood were relevant. These included the claimant’s personal profile, past violations, direct experience of violence or threats, geographical location, political and legal conditions, and factors which might facilitate or deter persecution.
4. The Special Adjudicator was entitled to give limited weight to the appellant’s earlier mistreatment, the uncertain circumstances of his father’s detention and the general evidence of tension between Muslims and Tamils. The evidence did not require a finding of a serious future risk in Batticaloa.
5. Country evidence often operates at a general level and may not establish risk in a particular locality. The tribunal had to relate it to the claimant’s individual circumstances and the area to which he would return.
6. The reference to LTTE lack of effective control was treated as a factual consideration rather than a legal requirement that non-state persecution can occur only in territory controlled by the persecutor. Read as a whole, the adjudication assessed future risk and did not rely solely on the appellant’s lack of LTTE membership.
7. The order was: application dismissed; detailed assessment of the appellant’s costs.

• Court of Appeal (Civil Division): appeal dismissed. Pill LJ delivered the leading judgment; May LJ and Rimer J agreed.
• High Court: Gage J refused judicial review of the Immigration Appeal Tribunal’s refusal of permission to appeal.
• Immigration Appeal Tribunal: refused permission to appeal against the Special Adjudicator’s decision.