Dedei, R (on the application of) v Immigration Appeal Tribunal & Anor

Judicial review of an Immigration Appeal Tribunal’s refusal of permission to appeal does not involve retrying the asylum claim or reviewing factual findings as if on appeal. Under R v Secretary of State for the Home Department, ex p Robinson [1997] 4 All ER 210, an unraised point must be considered only where it is an obvious point of Convention law with a strong prospect of success. A possible risk during a single journey to an otherwise safe area did not meet that threshold on the evidence. Nor could judicial review be used to reopen the adjudicator’s factual assessment of the proposed safe haven.

The applicant, a Roma from Kosovo, challenged the Immigration Appeal Tribunal’s refusal of permission to appeal against an adjudicator’s dismissal of his asylum and human-rights claims. Burton J refused permission to seek judicial review in the Administrative Court on grounds including the safety of the journey from Pristina, the adequacy of the proposed safe area, risks from different ethnic groups, discrimination and credibility.

Before the Court of Appeal, the applicant relied on updated UNHCR/OSCE material and a Tribunal decision concerning relocation to Montenegro. The central issues were whether the journey-risk point was an obvious point requiring consideration despite not having been raised, and whether the evidence showed that confinement to the proposed safe area itself created a well-founded fear of persecution.

1. Application refused. The court refused permission to appeal and ordered detailed assessment of the applicant’s Community Legal Services Funding certificate.

2. The principle in R v Secretary of State for the Home Department, ex p Robinson [1997] 4 All ER 210 requires an appellate tribunal to take an obvious point of Convention law even if the appellant has not raised it. An obvious point means one with a strong prospect of success. The Administrative Court’s role is to decide whether the Tribunal was arguably in breach of that duty.

3. The evidence of attacks on transport, including the UNHCR/OSCE material, did not establish a sufficiently strong case that this applicant faced persecution during the single journey from Pristina to Mitrovica. The additional material did not materially strengthen that argument.

4. The challenge concerning conditions within the safe area depended on the adjudicator’s factual findings, which were based substantially on the applicant’s own evidence. Judicial review is not a re-hearing of the asylum claim and the court was not entitled to review those findings as though exercising an appellate jurisdiction.

5. The decision in Hazrizaj 01 THO 1382 concerned whether relocation to Montenegro would be unduly harsh. It did not govern a case concerned only with the practical journey home.

• Court of Appeal (Civil Division): Permission to appeal refused. [2002] EWCA Civ 922.
• Administrative Court, Queen’s Bench Division: Burton J refused permission to make a claim for judicial review on 18 January 2002.
• Immigration Appeal Tribunal: Permission to appeal against the adjudicator’s dismissal of the asylum appeal was refused on 15 June 2001.
• Adjudicator: The asylum and human-rights appeals were dismissed; the determination was promulgated on 10 May 2001.