Lakew v Secretary Of State For The Home Department

Permission to appeal may be granted where an arguable material point has not been addressed by an appellate tribunal. This is particularly so where a later statement materially clarifies the factual chronology and may alter the significance of the evidence. In asylum appeals, procedural confusion caused by lengthy submissions should not deprive an appellant of consideration of a properly arguable point. The evidence and dates should be presented in a focused way, with unnecessary material and authorities avoided.

This was a renewed application by Tsehay Kassa Lakew for permission to appeal an Immigration Appeal Tribunal decision dismissing her appeal in an asylum claim. The application followed refusal of permission on paper. The applicant relied on a second statement clarifying that official visits after her husband's detention had ceased, and that later visits occurred after she joined the AAPO. She argued that the later visits might therefore have resulted from her political activity and indicated a risk of detention or persecution on return to Ethiopia. The central issue was whether the Tribunal had failed to address the significance of that clarified factual case.

Permission to appeal was granted. The Court did not determine the merits of the asylum claim. It held that the applicant should have the opportunity to argue that the Immigration Appeal Tribunal's reasoning was flawed.

1. The second statement materially changed the factual basis understood by the Home Office and the Special Adjudicator. The applicant's case was not that visits following her husband's detention had continued uninterrupted. There had been an early period of visits, followed by a gap, and then different visits in 1997 after she joined the AAPO.
2. That gap could be significant. It was arguable that the later visits were connected with active political involvement rather than with the earlier detention of the applicant's husband. The visits might therefore bear on whether the authorities regarded the applicant as an AAPO activist, and on the risk of investigation, detention or persecution if she were returned to Ethiopia.
3. The Tribunal referred to the gap in the context of a missing-page issue. However, in the reasoning by which it dismissed the appeal, from paragraph 13 onwards, it did not address the point or its asserted significance. That omission gave rise to an arguable challenge warranting permission.
4. Lord Justice Carnwath added that an asylum appellant should not be disadvantaged by the failure of lengthy submissions and grounds to highlight the central issue clearly. Those advancing such cases should identify the relevant evidence and chronology concisely and avoid unnecessary authorities.

• Court of Appeal (Civil Division): On the renewed application, permission to appeal was granted. [2002] EWCA Civ 1439
• Immigration Appeal Tribunal: Dismissed the applicant's appeal. No citation was stated in the judgment.
• Special Adjudicator: Considered the applicant's asylum claim on the factual basis described in the judgment. No separate citation was stated.