Krayem v Secretary of State for the Home Department

An Immigration Appeal Tribunal must give adequate reasons in its substantive determination. It must identify the issue decided, the evidential basis for its conclusion, and why important evidence does not establish persecution. Where discrimination is accepted but persecution is rejected, the tribunal must explain whether the treatment is legally incapable of amounting to persecution or is insufficiently serious. Reasons given on an application for permission to appeal cannot ordinarily supplement the substantive reasons. The appeal was therefore allowed because the tribunal had not adequately engaged with significant evidence concerning discrimination against Palestinian refugees in UNRWA camps.

The appellant, a Palestinian born in Kuwait without Kuwaiti nationality, had lived in an UNRWA refugee camp in Lebanon. His asylum claim was refused. An adjudicator dismissed his appeal, and the Immigration Appeal Tribunal dismissed a further appeal in a determination notified on 3 October 2002. The appellant did not pursue challenges concerning Article 1D or alleged persecution by an armed group. The appeal concerned whether the tribunal had adequately explained its treatment of evidence concerning discrimination and ill-treatment of Palestinian refugees, and why the accepted discrimination did not amount to persecution.

Appeal allowed unanimously. Mr Justice Richards gave the judgment, with Lord Justice Kay and Lord Justice Clarke agreeing. The Immigration Appeal Tribunal’s decision was quashed and the appeal was remitted to a differently constituted tribunal.

1. The tribunal was required to give reasons for its substantive decision. Applying the basic requirement stated in R v Immigration Appeal Tribunal ex p Khan [1983] 2 WLR 759, the determination had to make clear the issue being decided, the evidential basis for the conclusion, and the true basis for rejecting important evidence or treating it as insufficient.
2. Reasons given when granting or refusing permission to appeal under Rule 27 of the Immigration and Asylum Appeals (Procedure) Rules 2000 address whether an appeal is appropriate. They are not intended to supplement the reasons for the substantive decision. The court left open whether the approach suggested in English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409 could apply in this statutory context.
3. The tribunal had accepted that the appellant would face discrimination, but did not identify its nature or degree, or explain whether it considered such treatment incapable in law of amounting to persecution or merely insufficiently serious. It also failed to explain how far it rejected the objective evidence, including Mr Joffé’s report, concerning Palestinian refugees generally.
4. The wider implications of the evidence made fuller reasoning particularly important. The court did not decide whether differential treatment of nationals and non-nationals, or of stateless persons, in access to economic, social and cultural benefits could amount to persecution, nor the degree of personal impact required. Those questions were left for the differently constituted tribunal.

Costs were subject to detailed assessment if not agreed.

1. Court of Appeal (Civil Division) — In [2003] EWCA Civ 649, the appeal was allowed. The Immigration Appeal Tribunal’s decision was quashed and the matter was remitted to a differently constituted tribunal.
2. Immigration Appeal Tribunal — Dismissed the appellant’s appeal in a decision notified on 3 October 2002.
3. Adjudicator — Dismissed the appellant’s appeal against the Secretary of State’s refusal of his asylum claim.