Demaili v Secretary of State for the Home Department

Permission to appeal may properly be granted where an adjudicator’s reasons are so brief that they may lack the capacity to explain an adverse conclusion, particularly where the evidence is extensive and conflicting. A challenge concerning an internal protection alternative may be considered separately and, where appropriate, stood over until the principal appeal has been determined.

The applicant sought permission to appeal against Jackson J’s decision of 7 March 2001 refusing permission to apply for judicial review. The underlying challenge concerned a Special Adjudicator’s refusal of the applicant’s asylum claim. The adjudicator had relied on brief reasoning concerning the risk to Albanian Kosovans in Kosovo and had alternatively concluded that the applicant could relocate elsewhere in Kosovo.

The proposed appeal raised two issues: whether the adjudicator had given adequate reasons in the face of extensive and conflicting evidence, and whether the internal protection alternative had been properly applied.

1. Permission on adequacy of reasons. Permission to appeal was granted on the proposed challenge to the Special Adjudicator’s reasoning on the applicant’s alleged well-founded fear of persecution. The evidence included documents of impeccable provenance suggesting that an Albanian Kosovan from northern Mitrovice might have a well-founded fear of persecution on grounds of race or nationality. Against that background, the adjudicator’s short conclusion that the risk was principally to Serbs might arguably fail to provide sufficient reasons. Brevity of reasoning was distinct from the reasoning having sufficient capacity to support the conclusion.
2. Internal protection alternative. The alternative conclusion that the applicant could return to another part of Kosovo was relevant only if the challenge to the reasoning on the well-founded fear issue failed. The question of internal protection was described as an extremely difficult and developing area of law. Permission on that ground was therefore stood over to the court hearing the substantive appeal, which could then decide whether permission should also be granted.
3. Forum and procedure. Although permission had been refused below, the application had been fully argued before Jackson J. In those circumstances, it was considered preferable for the issue to come directly before the Court of Appeal rather than return for a further full hearing in the Administrative Court. The applicant undertook to file the funding certificate, upon which there was to be a detailed assessment.

• Administrative Court: Jackson J refused permission to apply for judicial review on 7 March 2001 after full argument.
• Court of Appeal (Civil Division): Permission to appeal was granted on the adequacy-of-reasons issue. The internal protection issue was stood over for consideration by the court hearing the appeal.