Secretary Of State For the Home Department v Iyangaran

In an asylum claim, future persecution risk must be assessed by reference to all past, present and future evidence having a real bearing on the issue. Earlier absence of ill-treatment is relevant; evidence of scarring does not make prior history irrelevant. An appellate tribunal may make a final factual decision rather than remit where it has jurisdiction to do so. A coherent, rounded and fact-specific risk assessment is not vitiated merely because the tribunal’s evaluation is severe or contestable. A late application to renew permission requires a good reason for delay, but extension may be refused where the proposed appeal lacks a realistic prospect of success.

The applicant, a Sri Lankan Tamil, claimed asylum after alleging detention, escape, shooting injuries and later return to Sri Lanka. The Secretary of State refused the claim. An adjudicator allowed the appeal after seeing photographs of scars and treating the applicant’s earlier lack of ill-treatment after return from Romania as irrelevant.

The Immigration Appeal Tribunal allowed the Secretary of State’s appeal, held that the adjudicator had erred in law, and made its own adverse factual assessment. The applicant sought an extension of time to renew permission to appeal and permission to appeal on grounds concerning the use of past events, scarring, and failure to consider the whole case. The central issue was whether the Tribunal’s approach disclosed an arguable error of law and whether time should be enlarged.

Application refused. Lord Justice Sedley refused both the application to enlarge time and the renewed application for permission to appeal.

1. The Immigration Appeal Tribunal was plainly right to hold that the adjudicator had erred in treating the applicant’s previous history as irrelevant once the scars were established. The adjudicator had correctly directed himself that relevant evidence included anything in the past, present or future having a real bearing on a well-founded fear of persecution for a Convention reason, but had failed to apply that direction.
2. The applicant accepted that, in the circumstances, the Immigration Appeal Tribunal had jurisdiction to reach a final decision rather than remit the case to a different adjudicator, even though the applicant had not been called at either hearing. The remaining challenge therefore concerned the Tribunal’s evaluation of the facts and its reasoning.
3. The challenges based on reliance on past events and treatment of the scarring were not well founded. The Tribunal had set out balanced guidelines for cases of this kind, and those guidelines were not open to legal challenge.
4. The only arguable issue was whether the Tribunal had failed to apply its own facts-specific approach to the whole case. The Court held that it had not. The material matters, including the applicant’s asserted risk of detention, his profile as a young Tamil from Jaffna, the alleged previous assistance to the LTTE, the authorities’ interest in him and the scars, could be found in the decision. The Tribunal’s final conclusion was a rounded appraisal of the present and prospective situation. Its evaluation might be regarded as brutal, but it constituted a coherent set of reasons and disclosed no error of approach.
5. Although the assumed explanation for the delay in renewing permission was capable of argument, a late renewal required a good reason. The proposed appeal did not have a realistic prospect of success and was not a suitable case for permission. Time was therefore not enlarged and permission was refused.

• Court of Appeal (Civil Division): refused an extension of time to renew the application for permission to appeal and refused permission to appeal.
• Immigration Appeal Tribunal: allowed the Secretary of State’s appeal, held that the adjudicator had erred in law, and made its own adverse determination on the applicant’s case.
• Adjudicator: allowed the applicant’s asylum appeal after relying principally on photographs of his scars and treating his earlier lack of ill-treatment as irrelevant.