Nine Nepalese Asylum Seekers, R (On the Application Of) v Immigration Appeal Tribunal

Judicial review corrects errors of law. It does not provide a further appeal on credibility where the original fact-finding tribunal has rejected an asylum seeker’s account. A notice seeking to appeal must identify an error by the lower court or a serious procedural irregularity. General complaints about country conditions, documents, or evidence already disbelieved do not suffice.

Proceedings brought merely to obtain a fourth factual review are an abuse of process. In clear cases that are totally devoid of merit, the court may strike out proceedings of its own initiative under the Civil Procedure Rules. Re-listing an application dismissed after non-attendance remains discretionary and depends, among other matters, on the underlying merits.

Nine Nepalese asylum seekers, including one Bhutanese citizen long resident in Nepal, challenged the refusal of asylum claims. In every case the adjudicator made material adverse credibility findings.

In seven cases the Immigration Appeal Tribunal refused permission to appeal. In the remaining two, no timely tribunal appeal was pursued and judicial review was sought substantially later. The Administrative Court refused each judicial review application on the papers and again at a renewed oral hearing.

Each claimant then sought permission to appeal to the Court of Appeal. Their substantially identical grounds made general complaints about documentary material, humanitarian or human-rights considerations, country information and the standard of proof, without addressing the adverse credibility findings. The central issue was whether those complaints disclosed any viable judicial-review or appellate ground.

1. Applications for permission to appeal dismissed. Brooke LJ held that none of the nine applications had ever possessed merit. The applications sought to prolong residence after asylum claims had been rejected on adverse credibility findings, rather than to identify an error of law.
2. Judicial review is confined to recognised legal grounds. It is not a mechanism for re-arguing whether an adjudicator, as the tribunal of fact, should have accepted evidence which that adjudicator disbelieved. A specialist appellate tribunal’s refusal of permission should almost invariably end the matter. Exceptionally, intervention may be appropriate where there is a clear procedural failure, such as an interpreter problem or a failure to understand critical evidence.
3. Under the appeal requirements reflected in CPR 52.11(3)(a) and (b), a viable ground had to show either that the Administrative Court judge was wrong or that there had been a serious procedural or other irregularity. Generalised assertions about Nepal, country material, or disbelieved evidence did neither. The applications were therefore an abuse of the court’s process, which does not exist as a fourth-tier appellate tribunal of fact.
4. Brooke LJ refused the requested adjournment in the individual case where it was sought because of recent childbirth. The claimant had notice, could have arranged representation, and the underlying application was totally devoid of merit.
5. As procedural guidance, the court stated that judges should in clear cases use the power in CPR 3.3(4) to strike out totally meritless matters of their own initiative, allowing ten days for an application for a hearing. Following R(Idubo) v Home Secretary [2003] EWCA Civ 1203, re-listing after non-attendance is discretionary, not automatic; the merits remain material.

• Court of Appeal (Civil Division) Dismissed all nine applications for permission to appeal from the Administrative Court.
• Administrative Court Refused each judicial-review application on the papers and dismissed each renewed application at an oral hearing.
• Immigration Appellate Authority The adjudicators dismissed all asylum appeals. In seven cases the Immigration Appeal Tribunal refused permission to appeal; in two cases no timely tribunal appeal was pursued before a later judicial-review application was made.