Wodajo v Secretary Of State For Home Department

On a renewed application for permission to appeal in an asylum and human-rights case, the Court of Appeal will not permit a further factual investigation where two specialist tribunals have carefully determined the facts and no properly arguable point of law arises.

Medical evidence of past ill-treatment and depression does not, without more, establish that removal would necessarily breach Article 3. A newly formulated case based on a materially different factual premise may fail where it is unsupported by evidence, particularly when it contradicts the case previously advanced.

The applicant, an Ethiopian citizen, appealed against refusal of asylum and associated appeals under Articles 3 and 8 of the Convention. An adjudicator dismissed the appeals after making adverse credibility findings and concluding that the applicant’s injuries were more likely to have resulted from spousal abuse than persecution.

The Immigration Appeal Tribunal dismissed a further appeal on 2 August 2002 and refused permission on the basis that there was no arguable point of law. The Court of Appeal first refused permission on the papers. The renewed application concerned both the original grounds and a recast argument that return would expose the applicant to renewed spousal abuse when she sought to recover her children.

The renewed application for permission to appeal was refused. Lord Justice Simon Brown gave the principal reasons, with which Lord Justice Clarke agreed.

1. The original grounds raised no question of law. They sought to reargue factual matters already examined in detail by the adjudicator and the Immigration Appeal Tribunal. The Court of Appeal was neither required nor entitled to undertake what would essentially be a third investigation of the facts.
2. The medical evidence established extensive scarring and severe depression, but those matters were not necessarily inconsistent with the adjudicator’s adverse credibility findings. It was open to the adjudicator to conclude that the applicant’s ill-treatment resulted from spousal abuse and that her claimed activities with the Oromo Liberation Front were untrue.
3. The recast Article 3 argument was materially different from the case previously presented, because the applicant had consistently denied mistreatment by her husband. The suggested chain of events on return was speculative. There was no evidence concerning the husband’s and children’s circumstances during the intervening period, or showing that the applicant would face a risk of renewed abuse.
4. Ivanauskiene v A Special Adjudicator [2001] EWCA Civ 1271 was distinguishable. In that case, the Article 3 claim was based on regular assaults by the former husband. The present case lacked that factual foundation.
5. Lord Justice Clarke added that, even assuming the factual basis of the recast argument, there was no evidence supporting a conclusion that the applicant would or might suffer further spousal abuse. The application was therefore refused.

• Court of Appeal (Civil Division): renewed application for permission to appeal refused on 22 November 2002.
• Immigration Appeal Tribunal: appeal dismissed on 2 August 2002; permission to appeal refused on 5 September 2002.
• Adjudicator: asylum and associated human-rights appeals dismissed on 3 April 2002.