Najjemba, R (on the application of) v Secretary Of State For the Home Department

Rape and other serious criminal violence do not, without more, establish persecution for a Refugee Convention reason. A claim based on membership of a particular social group requires evidence capable of showing persecution of that group, rather than isolated or general lawlessness. An appellate court reviewing an immigration decision on an error-of-law basis must respect the adjudicator’s fact-finding role. An adjudicator may accept an applicant’s account of past events while concluding that the evidence does not establish a Convention reason or a future real risk of ill-treatment. The question is whether the conclusion was legally erroneous or one that no reasonable tribunal could reach on the material.

The applicant, a Ugandan national, claimed asylum after soldiers raped her, severely beat her son and removed him. The adjudicator accepted her account of the incident but found that it was a gratuitous criminal act, not persecution for a Convention reason, and that she could return to Kampala in relative safety. Her appeal to the Immigration Appeal Tribunal was rejected, and Sullivan J refused permission for judicial review of that decision in the Administrative Court.

Before the Court of Appeal, she argued that Ugandan women constituted a particular social group, that the adjudicator had failed to assess the evidence overall, and that the conclusion was one no reasonable tribunal could reach.

1. Application refused. The Court of Appeal could intervene only for an error of law. The assessment of the evidence and the essential factual conclusions were matters for the adjudicator, subject to supervision by the Immigration Appeal Tribunal and judicial review.
2. The evidence did not justify equating the position of women in the relevant Ugandan region with that of women in Pakistan in R v IAT and SSHD ex p Shah; Islam v IAT [1999] 2 AC 629. That authority involved extensive evidence of systematic persecution. The material here showed uncontrolled lawlessness by soldiers, including rape, but did not establish that women formed a social group subject to persecution in Convention terms. The rape was found to be simple criminal lust, and no political or other Convention reason was established.
3. The adjudicator had approached the evidence lawfully. Her assessment was consistent with the overall-evidence approach discussed in Karanakaran [2000] INLR 122. She was entitled to accept the applicant’s account while finding no reasonable likelihood that the security forces would return to arrest her and no substantial grounds for believing that she faced a real risk of torture or inhuman or degrading treatment on return.
4. The conclusion was not one that no reasonable tribunal could reach. The adjudicator’s findings sufficiently supported refusal of both the asylum claim and the claim based on human rights. Simon Brown LJ agreed with Latham LJ’s reasoning and considered that the application disclosed no arguable error of law.

• High Court, Administrative Court: Sullivan J refused permission for judicial review of the Immigration Appeal Tribunal’s refusal of permission to appeal. The application had previously been refused on the documents by Stanley Burnton J.
• Court of Appeal (Civil Division): the renewed application for permission to appeal was refused.