Indrakumar v Secretary of State for the Home Department

An appellate immigration tribunal may interfere with an adjudicator’s factual decision only where the decision is wrong on analysis. It cannot do so merely because it would have reached a different conclusion.

The same standard applies to all alleged factual errors, but its application depends on the evidence. Great restraint is required for findings based on oral credibility. The tribunal is generally as well placed to assess objective country material and may, after identifying an error, draw its own inference from the accepted facts and that material. Descriptions such as plainly or clearly wrong add no useful separate test.

The appellant, a Sri Lankan Tamil and former supporter of the LTTE, claimed asylum after alleging arrest, detention and torture by the Sri Lankan authorities. An adjudicator accepted his account and found that his recorded history created a real risk of renewed arrest and persecution on return.

The Immigration Appeal Tribunal allowed the Secretary of State’s appeal. It considered the wider country evidence and concluded that the appellant was not an exceptional case and faced no reasonable likelihood of persecution. The appeal to the Court of Appeal raised whether the Tribunal had merely substituted a permissible different view, or had first identified an error in the adjudicator’s approach which entitled it to reconsider the inference from the evidence.

1. Appeal dismissed unanimously. Lady Justice Hale, with whom Lord Justice Carnwath agreed, held that the Tribunal had made no error of law in overturning the adjudicator’s decision.

2. The Tribunal’s appellate jurisdiction was not confined to law, but it could interfere with an adjudicator’s factual decision only if that decision was wrong. A different conclusion, without an identified error, was insufficient. This was consistent with Borissov v Secretary of State for the Home Department [1996] Imm AR 524, R v Immigration Appeal Tribunal ex-parte Balendran [1998] Imm AR 162 and Sarker v Secretary of State for the Home Department.

3. The degree of appellate restraint depends on the evidence. Findings based on oral credibility will rarely be displaced. The Tribunal is, however, at least as well placed as an adjudicator to assess objective evidence about country conditions. Once it identifies an error, it may draw its own inference when applying those conditions to accepted individual facts.

4. The adjudicator had considered only part of the country guidance. He had not addressed the guidance that only exceptional cases were then unable to return safely to Sri Lanka. That omission was an error. The Tribunal was therefore entitled to reconsider the matter in the round and infer that the appellant’s prior detention and discontinued reporting condition would not prompt renewed adverse interest or persecution.

5. The Court rejected a separate requirement that a finding be described as plainly or clearly wrong. The correct question was simply whether the adjudicator’s decision was wrong. Permission to appeal to the House of Lords was refused, with detailed assessment of the appellant’s publicly funded costs.

• Court of Appeal (Civil Division): By [2003] EWCA Civ 1677, dismissed the appellant’s appeal and upheld the Immigration Appeal Tribunal’s intervention.
• Immigration Appeal Tribunal: On 20 February 2003, allowed the Secretary of State’s appeal and set aside the adjudicator’s finding that return to Sri Lanka would expose the appellant to a well-founded fear of persecution.
• Adjudicator: On 18 June 2002, allowed the appellant’s asylum appeal.