Sarkisian v Secretary of State for the Home Department

Whether treatment is degrading under Article 3 or sufficiently severe to constitute persecution is a question of degree. Reasonable decision-makers may reach different conclusions on that question. An appellate court should not interfere with an Immigration Appeal Tribunal’s assessment unless it discloses an error of law. The relevant standard is unreasonableness in the Wednesbury sense. A tribunal may prefer one background report over another where it has considered the material and explained its findings. Fresh evidence will not justify permission to appeal unless it establishes an arguable error of law or materially changes the evidential picture.

The appellant, an Azerbaijani national of Armenian ethnicity, claimed asylum on the basis that he feared persecution and treatment contrary to Article 3 if returned to Azerbaijan. The adjudicator allowed his appeal, but the Immigration Appeal Tribunal allowed the Secretary of State’s appeal and concluded that the evidence did not establish a present risk of persecution or degrading treatment.

The appellant sought permission to appeal, arguing that the Tribunal had failed to consider or explain its treatment of the background evidence and had failed to address the Article 3 and persecution thresholds. He also relied on fresh material concerning religious difficulties in Azerbaijan.

1. Application refused. The Tribunal had considered the background material and was entitled to regard the Danish immigration mission report as the most informative document. The differences between that report and the United States State Department report did not undermine the Tribunal’s assessment.
2. The Tribunal was entitled to find that discrimination against Armenians in Azerbaijan was not generally sufficiently severe, frequent or pervasive to cross the threshold for persecution or degrading treatment. The assessment was one of fact and degree. Different decision-makers might reasonably reach different conclusions.
3. The Court of Appeal would interfere only for an error of law. In this context, the decision had to be unreasonable in the Wednesbury sense. The Tribunal’s decision came nowhere near satisfying that stringent test.
4. The fresh documents concerning difficulties faced by Christian churches did not establish wholesale closure of churches or materially alter the evidential picture. They did not provide an arguable basis for concluding that the Tribunal’s decision was wrong in law.
5. The Tribunal’s conclusion remained that ethnicity alone did not establish a well-founded fear of persecution, while each case had to be assessed on its own facts. The appellant had identified no specific circumstances distinguishing him from other ethnic Armenians or demonstrating an exceptional personal risk.

• Immigration Appeal Tribunal: allowed the Secretary of State’s appeal against the adjudicator’s decision.
• Court of Appeal (Civil Division): refused the appellant’s application for permission to appeal against the Tribunal’s decision.