Wodajo v Secretary Of State For Home Department

An appellate court considering an asylum appeal must not conduct a third investigation of facts merely because the claimant advances a reformulated case. Medical evidence and depression do not, without more, establish entitlement to asylum or show that removal would necessarily breach Article 3. A proposed risk on return requires an evidential foundation. Where the claimant’s case rests on a possibility of renewed spousal abuse, the court cannot infer that risk from past abuse alone.

The appellant, an Ethiopian citizen, applied for asylum shortly after arriving in the United Kingdom. Her asylum claim and human-rights appeal under Articles 3 and 8 were rejected by an adjudicator on 3 April 2002. The Immigration Appeal Tribunal dismissed her further appeal on 2 August 2002 and refused permission to appeal on 5 September 2002.

The appellant renewed her application for permission before the Court of Appeal. Her original case relied on alleged persecution connected with the Oromo Liberation Front. Her reformulated case relied on evidence of serious spousal abuse, depression, and the asserted risk that returning to Ethiopia to recover her children would expose her to further abuse.

1. Application refused. Lord Justice Simon Brown and Lord Justice Clarke agreed that the proposed appeal disclosed no properly arguable point of law. The original grounds sought to reargue factual findings after two detailed adverse decisions by specialist fact-finding tribunals.
2. The medical evidence, including extensive scarring and severe depression, was not uniquely consistent with the asylum account. The adjudicator was entitled to accept that the injuries were more probably attributable to spousal abuse, while also finding that the appellant had lied about her activities with the Oromo Liberation Front and would not be of interest to the Ethiopian authorities.
3. The reformulated Article 3 case could not succeed merely because the appellant might return to Ethiopia in order to reunite with her children and might thereby encounter her husband. There was no evidence of the husband’s or children’s circumstances during the intervening period, nor evidence that the appellant would face a real risk of renewed abuse on return. It was therefore impermissible to conclude that removal would necessarily involve a breach of Article 3.
4. The court distinguished Ivanauskiene v A Special Adjudicator [2001] EWCA Civ 1271, because that case concerned a claim expressly based on regular assaults by a former husband. The present case lacked evidence establishing a comparable risk.
5. Lord Justice Clarke added that there was no factual basis for assuming that the appellant would continue to deny the abuse or that she would consequently face further spousal violence. The application was refused.

• Immigration Appeal Tribunal: dismissed the appellant’s appeal on 2 August 2002 and refused permission to appeal on 5 September 2002.
• Court of Appeal (Civil Division): refused the renewed application for permission to appeal on 22 November 2002.