Anufrijeva & Anor v Immigration Appeal Tribunal & Anor

Judicial review of an immigration adjudicator’s decision is not an appeal on the facts. A point not raised before the tribunal can be relied on only where it is obvious and has a strong prospect of success. It is insufficient that the point is merely arguable.

Persecution by police officers does not, without more, establish persecution by the State or persecution for a Convention reason. A claimant’s determination to resist police misconduct or obtain justice does not, without considerably more, amount to an actual or imputed political opinion. Persecution on return as a failed asylum seeker is not, by itself, persecution for a Convention reason.

Mr Anufrijeva sought asylum in the United Kingdom after leaving Lithuania. A special adjudicator accepted much of his account of harassment, assaults and difficulties with the police, but concluded that the conduct was caused by personal animosity, corruption and criminality rather than persecution for a Convention reason. He also rejected the claim that failed asylum seekers were persecuted on return.

The Immigration Appeal Tribunal refused permission to appeal. Mr Justice Keith refused judicial review. The appeal concerned whether the adjudicator had erred in law by failing to treat the police conduct as persecution for an imputed political opinion, whether the later conduct was connected with an earlier political dispute, and whether return to Lithuania created a Convention-based risk.

The appeal was dismissed. The Court of Appeal held that the proceedings were judicial review of the Immigration Appeal Tribunal’s refusal of permission to appeal, although the arguments effectively challenged the special adjudicator’s determination.

1. A point not raised before the tribunal could be considered only if it was obvious and had a strong prospect of success. The point advanced on imputed political opinion did not meet that threshold. This followed the approach in R v Home Secretary ex parte Robinson [1998] QB 929.
2. The adjudicator was entitled to find that the later harassment resulted from antagonism between the appellant and a corrupt local police force, rather than from the earlier political dispute or an opinion imputed to the appellant. The adjudicator’s findings, read as a whole, did not require a conclusion that the conduct was politically motivated.
3. A claimant’s wish to secure justice or resist abuse by the police is not, without considerably more, the expression of a political opinion. Nor does police misconduct alone establish persecution by the State for Convention purposes. The court applied the reasoning in Storozhenko v Secretary of State [2002] IAC 329 and treated the present facts as falling within its essential rationale.
4. The approach to political opinion relied on from Gomez v Secretary of State [2001] 1 WLR 549 did not assist the appellant. The suggested imputed opinion was directed to protection of personal rights, not to a challenge to governmental authority or a matter concerning the State or its policy.
5. Persecution on return is not, by itself, persecution for a Convention reason. The possible perception that the appellant lacked respect for Lithuania did not establish a likelihood of political persecution. The court agreed with Mbanza v Secretary of State [1996] IAR 136.

The adjudicator’s factual conclusions were plainly open to him and disclosed no public-law error. Permission to appeal was refused. There was no order for costs.

• Court of Appeal (Civil Division): dismissed the appeal from Mr Justice Keith’s refusal of judicial review. Permission to appeal was refused and there was no order for costs.
• High Court, Queen’s Bench Division: Mr Justice Keith refused judicial review of the Immigration Appeal Tribunal’s refusal to grant permission to appeal.
• Immigration Appeal Tribunal: refused permission to appeal against the special adjudicator’s determination.
• Special adjudicator: rejected the asylum claim, finding no persecution for a Convention reason and no sufficient basis for a claim based on return as a failed asylum seeker.