Singh, R (on the application of) v Secretary of State for the Home Department

Judicial review of an Immigration Appeal Tribunal’s refusal of permission to appeal remains subject to the limits of judicial review. The exceptional Robinson principle, permitting an appellate authority to address an obvious point not raised by a representative, is directed principally to an obvious point of Convention law arising from facts already deployed before the tribunal. It does not ordinarily extend to a new complaint about the assessment of factual or medical evidence which was never placed before the tribunal. An arguable point is insufficient; the point must have a strong prospect of success. The court must also respect Parliament’s decision that such refusals are reviewable only in judicial review proceedings and are not appealable.

The applicant, an Indian Sikh and supporter of the Khalistan movement, sought asylum on the basis that he had been arrested and ill-treated by Indian police. A special adjudicator rejected his account and found that any prosecution in India would not amount to persecution. The adjudicator considered medical evidence from Dr Forrest but did not analyse it in detail.

The Immigration Appeal Tribunal refused permission to appeal. The High Court, before Elias J, refused judicial review. On a renewed application, the Court of Appeal considered whether the applicant could rely on the alleged mishandling of the medical evidence although that complaint had not been made to the Tribunal. The central issue was whether the case fell within the exceptional principle stated in R v Home Secretary ex p Robinson [1998] QB 929.

1. Application dismissed. The renewed application for permission to apply for judicial review was refused, and the application for permission to appeal was also refused.
2. The special adjudicator’s treatment of Dr Forrest’s report could properly have been challenged before the Immigration Appeal Tribunal. The report supported the applicant’s account of police ill-treatment, and the adjudicator would have been better advised to analyse it more fully. However, there was no general obligation to address every part of the report in detail, and the adjudicator was entitled to assess it in the context of the applicant’s evidence and credibility.
3. The complaint was not raised before the Immigration Appeal Tribunal, despite representation by solicitors and experienced counsel. The Tribunal therefore had no reason to focus on the report or the alleged inadequacy of the adjudicator’s reasoning. Judicial review could not ordinarily be used to introduce that new complaint.
4. The exceptional principle in R v Home Secretary ex p Robinson [1998] QB 929 did not assist. That principle concerns an obvious point of Convention law favourable to an asylum-seeker which has a strong prospect of success and has been overlooked despite the relevant facts being before the appellate authority. It did not extend, on these facts, to an unargued challenge concerning factual assessment and medical evidence. The proposed point was arguable but neither obvious nor conclusive.
5. The court reaffirmed the caution required when reviewing an Immigration Appeal Tribunal’s refusal of permission to appeal, particularly where the alleged error was never ventilated before the Tribunal. The court referred to its earlier observations in R v Secretary of State for the Home Department ex p Arshad, decided 14 July 2000, as supplementing the caution described in Robinson.
6. The court mentioned, without relying on it as a basis for the decision, that a complaint based on removal being contrary to the European Convention on Human Rights could potentially be made to the Secretary of State and pursued under section 65 of the Immigration Appeal Act 1989 or by judicial review.

• Court of Appeal (Civil Division): renewed application for permission to apply for judicial review dismissed. Permission to appeal refused.
• High Court, Queen’s Bench Division, Administrative Court: Elias J refused judicial review of the Immigration Appeal Tribunal’s refusal of permission to appeal.
• Immigration Appeal Tribunal: refused permission to appeal from the special adjudicator’s decision.
• Special adjudicator: set aside the Secretary of State’s certificate in relation to the 1989 ill-treatment, but dismissed the substantive asylum appeal.