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

Where an immigration tribunal’s refusal of leave to appeal rests on a material factual error, relief may be withheld only if the reviewing court is satisfied that, without the error, the tribunal inevitably would have reached the same result. That is a high threshold, particularly in an asylum case requiring anxious scrutiny.

A court must not substitute its own assessment for that of the specialist tribunal where omitted material could realistically affect the assessment of future risk. The possibility that fuller medical evidence of visible scarring might affect the tribunal’s assessment meant that the inevitable-outcome test was not met.

The claimant, a Sri Lankan Tamil asylum seeker, appealed from Ouseley J’s refusal of judicial review. The judge had upheld the Immigration Appeal Tribunal’s refusal of leave to appeal against a Special Adjudicator’s dismissal of the claimant’s asylum and removal appeal.

The Tribunal had wrongly stated that the Special Adjudicator had considered a Medical Foundation report by Dr Michael Peel. The report had not been before the Special Adjudicator. It described a larger number of scars than those inspected at the hearing.

Ouseley J accepted that the Tribunal had erred, but held that it would inevitably have refused leave even without the error. The central issue was whether the error could be cured on that basis, or whether the claimant was entitled to a full and proper appellate process.

1. Appeal allowed unanimously. Lord Justice Schiemann, with whom Lord Justice Robert Walker and Mr Justice Lloyd agreed, held that the Tribunal’s statement that the Special Adjudicator had considered Dr Peel’s report was a manifest factual error.

2. The applicable approach was that stated in Manzeke v Secretary of State for Home Department [1997] Imm AR 524. Relief could be refused only if the court were satisfied that the Tribunal would inevitably have reached the same decision without its error. The threshold was high and had to be applied with anxious scrutiny in an asylum case.

3. The court could not safely make that finding. The report recorded an accumulation of scars, some readily visible, and expressed the view that they were reasonably likely to have been caused as the claimant described. That material could affect a specialist decision-maker’s assessment of how the Sri Lankan authorities might react to him on arrival in Colombo.

4. Although Ouseley J had applied the correct test with care, the case lay on the side of the line where the omitted material could make a difference. The reviewing court should not substitute its own evaluation for the Tribunal’s in those circumstances. The claimant was entitled to the full appellate process provided by law.

• Court of Appeal (Civil Division): Allowed the claimant’s appeal from Ouseley J.
• Administrative Court: Ouseley J refused judicial review of the Immigration Appeal Tribunal’s refusal of leave to appeal, despite accepting that the Tribunal had made a factual error.
• Immigration Appeal Tribunal: A Vice-President refused leave to appeal from the Special Adjudicator’s determination.
• Special Adjudicator: Dismissed the claimant’s appeal against removal directions and the refusal of political asylum.