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

Permission to appeal in judicial review should address the particular case before the court. Difficult or important points need not be decided where they cannot affect the claimant’s position and the claimant has had the relevant procedural opportunity.

A person is not denied access to an appellate tribunal merely because permission to appeal is refused on the merits. An appellate court will also show substantial restraint towards a first-instance credibility assessment, particularly where the decision was based on the evidence as a whole.

The applicant sought permission to appeal against Scott Baker J’s refusal of permission to apply for judicial review. The underlying proceedings concerned an asylum claim, a certificate affecting appeal rights, and refusal by the Immigration Appeal Tribunal of permission to appeal from the Special Adjudicator.

The applicant argued that the certificate created a right of appeal without permission and that the Special Adjudicator’s credibility finding was legally unsustainable because evidence distinguished arrest from detention in Polish usage. The Court of Appeal considered whether either point was arguable and whether permission should be granted to resolve the wider nullity issue.

1. Application refused. Lord Justice Pill, with whom Mr Justice Rimer agreed, refused permission on both the procedural and credibility grounds.
2. In judicial review, the court should consider the particular case before it. The existence of an interesting, difficult or publicly important legal question does not justify permission where the question need not be determined to resolve the applicant’s position. Here, the applicant had been able to apply to the Immigration Appeal Tribunal for permission to appeal, and that application had been refused on its merits.
3. The reasoning in R v Secretary of State for the Home Department ex parte Saleem [2001] 1 WLR 443 concerning the importance of access to a tribunal did not assist the applicant on these facts. The applicant had not been denied access; he had access to the permission procedure.
4. The Special Adjudicator was entitled to assess credibility by considering the evidence in its general context. Although the evidence distinguished arrest from detention, the substantial discrepancy between the accounts, including the claim of hundreds of detentions, reasonably called credibility into question. The Adjudicator could also consider the evidence concerning the applicant’s marriage to a non-Romany.
5. The Court accepted that the wording of the credibility finding could be criticised, but it was not arguable that the finding lacked a proper evidential or reasoning basis. The applicant could also have sought permission to appeal Turner J’s earlier order and request alternative relief at that stage.

• Court of Appeal (Civil Division): Permission to appeal against Scott Baker J’s refusal of permission to apply for judicial review was refused.
• Administrative Court: Scott Baker J refused permission to apply for judicial review on 19 January 2001.