Makombo v Immigration Appeal Tribunal & Anor

On judicial review of a refusal by the Immigration Appeal Tribunal of permission to appeal, the decisive question is whether any reasonable tribunal could have refused permission. The court may examine the adjudicator’s determination to assist an asylum applicant and to ensure anxious scrutiny. That examination must not convert judicial review into a further merits appeal.

Where the adjudicator’s factual findings, including findings bearing on credibility and future risk, were open on the evidence and disclose no arguable perversity or error of law, the challenge cannot succeed. The need for High Court review in asylum cases does not justify repeated and unmeritorious applications for further review.

The applicant, a citizen of the Democratic Republic of Congo, sought asylum on the basis that he risked ill-treatment on return because of his connection with his brother, who had served in successive Congolese governments and was allegedly sought in connection with the assassination of President Kabila.

The Secretary of State refused asylum. An adjudicator dismissed the appeal, finding that the applicant had done nothing personally to interest the authorities and that there was no real reason to think he would be detained on return. The Immigration Appeal Tribunal refused permission to appeal.

Crane J refused permission to apply for judicial review of that refusal on 22 August 2002. The applicant renewed his application for permission to appeal to the Court of Appeal. The central issue was whether the adjudicator’s findings disclosed an arguable error of law or perversity such that the Tribunal could not reasonably have refused permission to appeal.

1. The renewed application for permission to appeal was dismissed. Buxton LJ held that the adjudicator’s findings were plainly open on the evidence. The adjudicator had considered the country material and was entitled to attach importance to the finding that the applicant had given an untruthful account of his release from prison.

2. The applicant had not claimed personal involvement in the matters said to interest the Congolese authorities. The adjudicator was entitled to conclude that, despite possible interrogation on return and past ill-treatment, there was no real reason to think that he would be detained or persecuted in the future. The findings were not arguably perverse or wrong in law.

3. Buxton LJ explained that judicial review remained, in form and substance, a challenge to the Immigration Appeal Tribunal’s refusal of permission to appeal. The court may inspect the adjudicator’s decision in asylum cases as an aid to anxious scrutiny, but the ultimate question is whether any reasonable Tribunal could have refused permission. A judicial review application must not become an impermissible merits appeal from the adjudicator.

4. Buxton LJ additionally endorsed the need for High Court review of refusals of permission in asylum cases, given the possible engagement of fundamental rights. That justification concerned review by one High Court judge and did not support successive, unmeritorious applications that prolonged an unsuccessful applicant’s stay. Ward LJ agreed that the application was hopeless and would dismiss it.

• Court of Appeal (Civil Division): the renewed application for permission to appeal was dismissed: [2002] EWCA Civ 1806.

• High Court, Queen’s Bench Division, Administrative Court: Crane J refused permission to apply for judicial review on 22 August 2002.

• Immigration Appeal Tribunal: refused permission to appeal against the adjudicator’s dismissal of the asylum appeal.

• Adjudicator: dismissed the applicant’s appeal against the Secretary of State’s refusal of asylum.