Serunkuma v Secretary Of State For the Home Department

Permission to appeal may be granted where the reasoning below arguably fails to reconcile the underlying decision’s findings, even if prospects of success are not high. An arguable logical inconsistency arises where a fact-finder accepts detention and ill-treatment, rejects an account of escape, and nevertheless treats the claimant as potentially prosecutable, while the appellate tribunal treats rejection of the escape account as implying release and little continuing interest. In an asylum case, the applicant’s past torture and the importance of the interests at stake may justify a hearing by two Lords Justices. The permission decision does not determine the merits.

John Paul Serunkuma, a Ugandan national, sought permission to appeal from a decision of the Immigration Appeal Tribunal dismissing his appeal against a special adjudicator’s decision in a political asylum claim.

The special adjudicator accepted that he had been arrested, detained and ill-treated because of dealings with the Lord’s Resistance Army. The adjudicator rejected his account of how he escaped from prison and travelled to the United Kingdom, describing him as a fugitive from justice rather than persecution. The Immigration Appeal Tribunal considered that rejection of the escape account logically implied release and supported a conclusion that he would attract little interest on return.

The central issue was whether that reasoning was arguably inconsistent with the adjudicator’s conclusion that the applicant might be prosecuted on return.

1. Permission granted. Lord Justice Schiemann considered that the proposed appeal did not presently appear to have a high prospect of success, but raised an arguable issue suitable for determination by a court of two Lords Justices.
2. The arguable issue concerned the relationship between the special adjudicator’s findings. The adjudicator accepted the applicant’s arrest, detention and ill-treatment, but rejected his account of being removed from prison and travelling using a false passport. The adjudicator nevertheless considered that the applicant might be prosecuted for providing food to the Lord’s Resistance Army and characterised him as a fugitive from justice rather than persecution.
3. The Immigration Appeal Tribunal appeared to reason that rejection of the escape account necessarily meant that the applicant had been released, and that his low-level activities meant he would be of little interest. Lord Justice Schiemann considered it arguable that this reasoning was illogical because it did not sit readily with the adjudicator’s conclusion that the applicant might be prosecuted.
4. In assessing whether permission should be granted, the court was entitled to take account of the applicant’s past experience of torture and the potential importance of the interests at stake, notwithstanding the court’s provisional view of the appeal’s prospects.
5. Time for permission to appeal was extended. The appellant was directed to prune the bundle and align its references with the skeleton arguments. An order was made for legal aid assessment.

• Court of Appeal (Civil Division): Lord Justice Schiemann granted permission to appeal and extended time.
• Immigration Appeal Tribunal: dismissed the appeal from the special adjudicator’s decision.
• Special adjudicator: accepted the applicant’s arrest, detention and ill-treatment but rejected his account of escape and subsequent travel.