Kindoki v Secretary Of State For Home Department

At the permission stage, the court does not decide whether an appeal will succeed. Permission should be granted where the proposed appeal has a realistic or reasonable prospect of success. An arguable error of law may arise where a tribunal accepts the substance of an asylum claimant’s account but artificially narrows the class of persons exposed to persecution, or overlooks material evidence bearing on the risk. Evidence that a claimant was questioned and mistreated because of both family connections and political activity may make it arguable that the tribunal wrongly confined the relevant risk to high-profile or overt political activists. The court may grant permission even where the factual criticism is not decisive and success is uncertain, particularly where the case may involve risk to life.

The appellant, a Zairean national, claimed asylum after being imprisoned without trial for 15 months, during which he was beaten and questioned about his defecting brother and a report he had been writing for the UDPS opposition party. The special adjudicator rejected his claim, and the Immigration Appeal Tribunal accepted his account in substance but concluded that the risk on return was not objectively well-founded.

Permission to appeal had been refused on the papers by Longmore LJ. The appellant argued that the tribunal had marginalised the report, overlooked evidence that he had been interrogated about it, and adopted an unjustifiably narrow understanding of the political activists facing persecution. The issue was whether those grounds disclosed an arguable error of law with a sufficient prospect of success.

1. Permission granted. The court granted permission to appeal, with detailed legal aid assessment. It did not determine the underlying asylum claim or decide that the appeal would succeed.
2. Per Lord Justice Sedley, there was a realistic prospect that the Immigration Appeal Tribunal had erred in law by adopting an unjustifiably narrow view of the risk to members of democratic opposition parties shown by the country evidence which it had accepted. The criticism was arguable even though much of the challenge concerned the appraisal of facts and the case was not stark.
3. The tribunal had accepted the applicant’s account in substance, including his political involvement and imprisonment. Its conclusion appeared to confine the relevant risk to certain high-profile categories and to exclude him as an opposition political activist because his work for the UDPS was covert and involved reports on matters said to be in the public domain. That approach was arguably too narrow. Soldiers might not distinguish between those refinements when identifying persons associated with political opposition.
4. The tribunal also appeared to have overlooked material evidence. Its decision stated that the applicant had not suggested that he was interrogated on any other basis during imprisonment, whereas his statement said that he had been repeatedly questioned about both his brother and the report. That factual omission was capable of undermining the tribunal’s assessment of whether his fear of persecution was well-founded.
5. Lady Justice Arden agreed. She regarded the overlooked evidence and the tribunal’s narrow construction of the term activist as properly arguable grounds, with a reasonable prospect of success. She confirmed that success was not the issue at the permission stage.

• Court of Appeal (Civil Division): permission to appeal was refused on the papers by Longmore LJ, but the application was renewed before Sedley LJ and Arden LJ. The Court of Appeal granted permission.
• Immigration Appeal Tribunal: rejected the asylum claim after accepting the applicant’s account in substance.
• Special adjudicator: rejected the asylum claim.