Oleed v Secretary of State for the Home Department

An Immigration Appeal Tribunal may review an adjudicator’s factual conclusions, but should interfere sparingly with findings based on oral evidence. It may set them aside only where they are plainly wrong or unsustainable.

An adjudicator may reject parts of an asylum-seeker’s account while accepting other evidence sufficient to establish a well-founded fear of persecution. Where the adjudicator’s assessment falls within the reasonable range of conclusions, the Tribunal cannot substitute its own view of evidential weight. A document’s authenticity and its evidential weight are distinct questions, but an unchallenged document cannot properly be rejected as inauthentic without adequate warning.

The appellant sought asylum after arriving from Sri Lanka. The Secretary of State refused his claim. An adjudicator allowed his appeal after accepting that he had been severely beaten by the army and that an apparently authentic warrant would expose him to arrest and ill-treatment on return.

The Immigration Appeal Tribunal allowed the Secretary of State’s appeal. It held that the adjudicator had acted perversely by placing substantial weight on the warrant despite inconsistencies in the appellant’s evidence.

The appellant appealed on a question of law. The central issues were whether the Tribunal had been entitled to overturn the adjudicator’s factual assessment and, if not, whether the adjudicator’s determination should be restored or the case remitted.

1. Appeal allowed by a majority. Schiemann LJ, with whom Aikens J agreed, held that the Immigration Appeal Tribunal was not entitled to overturn the adjudicator’s determination. The Tribunal’s determination was set aside, the Secretary of State’s appeal from the adjudicator was dismissed, and the adjudicator’s decision allowing the asylum appeal was restored.

2. The Tribunal possessed jurisdiction to review an adjudicator’s factual conclusions under paragraphs 22 and 23 of Schedule 4 to the Immigration and Asylum Act 1999. That power should be exercised sparingly where the adjudicator had assessed oral evidence. It was common ground that such a determination should be displaced only where it was plainly wrong or unsustainable.

3. The adjudicator had been entitled to accept some parts of the appellant’s account while rejecting others. He accepted that the appellant had been badly beaten by the army, that an unchallenged warrant existed, and that the warrant would lead to arrest and a real risk of Convention persecution. Those conclusions were neither perverse nor illogical.

4. The Tribunal’s reasoning about the warrant was materially flawed. The warrant’s absence at the initial interview was explained by its later receipt from the appellant’s sister. Nor was there a necessary inconsistency between the appellant’s evidence that he had experienced no earlier trouble and the warrant’s allegation concerning an earlier terrorist incident. The allegation might itself have arisen from false information. The Tribunal also adopted a precise date for the army incident without explaining why it displaced the adjudicator’s more cautious finding.

5. Because the warrant’s authenticity had not been challenged, rejecting it as inauthentic without adequate warning would have denied the appellant an opportunity to obtain supporting evidence. If authenticity was accepted, the adjudicator’s assessment of its weight remained within the reasonable range of conclusions. The Tribunal could not replace that assessment with its own.

6. Under Part 52.10 of the Civil Procedure Rules, the Court could exercise the lower tribunal’s powers. Restoration, rather than remittal for reconsideration against later country conditions, was appropriate because the adjudicator’s determination disclosed no error. A party should not use an otherwise unfounded appeal to obtain reconsideration on later facts.

7. Arden LJ agreed that the Tribunal’s decision should be set aside but disagreed with the majority’s restoration of the adjudicator’s determination. She considered that the adjudicator had failed adequately to test the warrant’s evidential value against the totality of the oral evidence and would have remitted the matter for further findings.

1. Court of Appeal (Civil Division): The appeal was allowed by a majority. The Immigration Appeal Tribunal’s determination was set aside, the Secretary of State’s appeal from the adjudicator was dismissed, and the adjudicator’s determination was restored.

2. Immigration Appeal Tribunal: The Tribunal allowed the Secretary of State’s appeal. It characterised the adjudicator’s reliance on the warrant as unreasonable and perverse and restored the Secretary of State’s refusal of asylum.

3. Adjudicator: The adjudicator allowed the asylum appeal, finding a reasonable degree of likelihood that the appellant would be persecuted for a Convention reason if returned to Sri Lanka.

4. Secretary of State: The asylum claim was refused on 17 February 2000.