Ashraff v Immigration Appeal Tribunal

In an asylum appeal, an appellate tribunal’s failure to address a particular argument will not invalidate its determination where the omitted reasoning rested on an unsupported or speculative premise and the remaining evidence did not establish a real risk on return. Risk must be assessed against the claimant’s personal circumstances and the objective evidence, rather than conjecture. Evidence concerning airport questioning, detention and torture did not firmly establish a real possibility of harm for this claimant. The court also accepted that the tribunal’s reasoning on imputed political opinion was unsatisfactory, but that issue was immaterial once the factual basis for the risk finding failed.

The appellant, a Tamil Muslim from Jaffna, claimed asylum after being compelled by LTTE gunmen to make uniforms. Sri Lankan Army personnel later confiscated uniforms being delivered by his employees and shot them. The appellant went into hiding and left Sri Lanka using a forged or another person’s travel document.

An adjudicator accepted his account and allowed his appeal, finding a risk of airport detention, intensive interrogation and torture engaging refugee protection and Article 3 of the Human Rights Convention. On 20 June 2002, the Immigration Appeal Tribunal allowed the Secretary of State’s appeal, finding the risk assessment speculative and inadequately reasoned. The appeal concerned whether the Tribunal had failed to engage with the adjudicator’s reasoning and whether the evidence established a real risk on return, including under the Immigrants and Emigrants Act 1998.

Appeal dismissed. Lord Justice Laws gave the leading judgment. Lord Justice Brooke agreed with his reasons and with the order.

1. The adjudicator’s critical finding depended on the proposition that many Hindu Tamils adopted the guise of Muslims to travel. The appellant accepted that this proposition had no evidential support. Once that premise was removed, the reasoning supporting the finding of airport risk became insubstantial.
2. The background material did not firmly establish a real possibility that this appellant, in his particular circumstances, would be stopped, questioned and tortured on return. The assessment had to consider his personal circumstances against the evidence of treatment on return. The adjudicator’s separate finding that he was unlikely to be detained after passing through the airport, unless he encountered a checkpoint while undocumented, remained intact.
3. Pathmanathan v Secretary of State for the Home Department, although not a starred decision, provided powerful material supporting the Tribunal’s position. Its treatment of the evidence concerning returned asylum seekers and the Immigrants and Emigrants Act 1998 supported the conclusion that the adjudicator’s reasoning did not establish a real risk. The Tribunal’s failure to address those points expressly therefore did not undermine its determination.
4. The court accepted that the Tribunal’s reasoning concerning imputed political opinion was unsatisfactory, having regard to Sivakumar [2000] INLR 310. That issue was unnecessary to the result. It could not assist the appellant once the factual basis for the adjudicator’s risk assessment had failed.

The principal ground of appeal was unsustainable. The order was that the appeal be dismissed, with a Legal Services Commission assessment.

1. Court of Appeal (Civil Division) — On 10 February 2003, the appeal against the Immigration Appeal Tribunal’s decision was dismissed: [2003] EWCA Civ 212.
2. Immigration Appeal Tribunal — On 20 June 2002, the Tribunal allowed the Secretary of State’s appeal against the adjudicator’s determination.
3. Adjudicator — On 10 December 2001, the adjudicator allowed the appellant’s appeal against refusal of leave to enter as a refugee and as a potential victim of violations of the Human Rights Convention.