Sivakumar v Immigration Appeal Tribunal & Anor

Permission to appeal in an asylum case should be granted where the proposed challenge raises a properly arguable error of law in findings that may be critical to the outcome. The fact that a complaint concerns fact-finding does not prevent consideration where the alleged error may have affected the determination. An independent risk assessment may also be arguable where it materially mischaracterises the evidence, including the duration of prior detention. The court need not conclude that the appeal is likely to succeed; it is enough that there is sufficient for the full court to examine.

A Sri Lankan citizen entered the United Kingdom in March 2001 and sought asylum. After his application was refused, an adjudicator dismissed his appeal, relying partly on credibility and finding it implausible that he had travelled through checkpoints and boarded an aeroplane using a false passport without an identity card after approximately 13 months’ detention. The Immigration Appeal Tribunal rejected his challenge.

On an application for permission to appeal, the applicant argued that the findings were critical errors of fact amounting to errors of law. He also argued that the Tribunal had materially misunderstood the detention history when independently assessing the risk on return. The central issue was whether these points were sufficiently arguable to require consideration by the full court.

1. Disposition. The application for permission to appeal was allowed. Lady Justice Arden agreed with the judgment of Lord Justice Kay.
2. Arguable errors of law. Although the challenge concerned findings of fact, the applicant was entitled to argue that findings critical to the determination could disclose an error of law. The point was properly arguable where the evidence did not obviously support the conclusion that a passport bearing the applicant’s true photograph but a false name would be less likely to pass a checkpoint than a valid passport, or that an identity card was necessarily required at the airport.
3. Risk on return. The adjudicator had considered detention lasting approximately 13 months. The Tribunal nevertheless referred to the applicant as having been detained briefly on one occasion. Since the Tribunal’s assessment had to be independent, there was at least an arguable case that this material mischaracterisation affected its assessment of the risk on return in paragraph 59 of the determination.
4. Permission threshold. The court expressed no view that the appeal was likely to succeed. It was sufficient that the proposed grounds disclosed matters requiring examination by the full court and that the Tribunal’s assessment in paragraph 59 might not be determinative in the way previously anticipated.

• Court of Appeal (Civil Division): On 15 November 2002, granted permission to appeal from the Immigration Appeal Tribunal. [2002] EWCA Civ 1891.
• Immigration Appeal Tribunal: Rejected the applicant’s challenge to the adjudicator’s factual findings. No citation was stated in the judgment.
• Adjudicator: Refused the asylum appeal in a reasoned determination, finding that the basis of the application was not made out.