Brati v Secretary Of State For Home Department

On an application for permission to appeal, procedural handling may justify permission where the Immigration Appeal Tribunal arguably treated the scope of leave too narrowly and failed to engage with substantial criticisms of the adjudicator’s reasoning. Where leave was granted on the stated basis that no findings of fact had been made, but findings were in fact made, the Tribunal may nevertheless consider whether the adjudicator’s reasons were adequate and properly founded. It should not necessarily dismiss those criticisms solely because the grant of leave did not expressly cover them. Permission was granted so that the merits and the appropriate appellate procedure could be argued, without deciding whether the adjudicator’s decision should ultimately be disturbed.

The claimant, an Albanian citizen, appealed against the refusal of his asylum claim, alleging persecution because of his political activities and beliefs. The adjudicator rejected his evidence as not credible. The Immigration Appeal Tribunal granted leave on the basis that the adjudicator had failed to make findings of fact, although findings had in fact been made, and subsequently dismissed the appeal. The claimant applied to the Court of Appeal for permission to appeal, arguing that the Tribunal had dealt too narrowly with the scope of the permission granted and had not addressed criticisms of the adjudicator’s underlying reasoning. The central issue was whether that procedural approach might have caused unfairness.

1. Permission granted. The Court of Appeal allowed the application for permission to appeal. The matter was to be listed before two Lords Justices with a half-day estimate.
2. The adjudicator had heard the claimant’s evidence and rejected the asylum claim on credibility grounds. Although the Vice-President granted leave to appeal to the Immigration Appeal Tribunal because he was concerned that no findings of fact had been made, the adjudicator had in fact made findings. The adequacy and proper foundation of those findings remained arguable.
3. The Tribunal’s decision suggested that, after recognising that facts had been found, it moved directly to dismiss the appeal because permission had not been granted for other criticisms of the adjudicator’s reasoning. It did not address arguments that it could, and perhaps should, have examined the underlying reasoning on its merits.
4. Where the procedural manner in which an appeal is handled may have engendered unfairness, it is arguably open to the Tribunal to consider the adjudicator’s reasons on their merits, even if the grant of permission was expressed in narrower or inaccurate terms. That possibility justified permitting full argument on both the merits and the procedure adopted.
5. The Court expressed no concluded view that the criticisms would ultimately justify interference with the adjudicator’s decision. Granting permission enabled the claimant’s case to be fully and properly considered.

• Court of Appeal (Civil Division): granted permission to appeal and directed that the matter be listed before two Lords Justices.
• Immigration Appeal Tribunal: dismissed the claimant’s appeal against the adjudicator’s decision.
• Adjudicator: rejected the asylum claim after finding the claimant’s evidence not credible.