SK & Ors v Secretary of State for the Home Department

An appellate tribunal may establish country-wide background conditions as a factual precedent for later asylum appeals, while retaining a duty to consider individual circumstances. Where appeals are argued on a generic basis, it may assess whether a claimant has special circumstances outside the general conclusion. Expert evidence has an important role in country-condition cases, but the tribunal determines the weight of each report and need not accept it. Review is limited to misunderstanding, legal misdirection or irrational assessment. Article 14 is not freestanding. It may operate where discriminatory conduct falls within the ambit of another Convention right, even without breach of that right. Treatment below the absolute Article 3 threshold is not within Article 3’s scope. No discrete Article 8 complaint arose in the circumstances.

Five asylum and human rights appeals arose from the Immigration Appeal Tribunal’s hearing on 16 and 17 October 2002. SK was treated as the lead case. The hearing followed the remittal of the earlier test case S and Others [2002] Immigration and Nationality Law Reports 416, and the five cases were substituted to establish the general position concerning the safety of ethnic Serbs returning to Croatia.

The tribunal concluded that there was no general real risk of persecution or Convention breach, and that none of the individual claimants showed special circumstances. In SK, it allowed the Secretary of State’s appeal from the adjudicator’s contrary conclusion. The applications sought permission to appeal on country-wide factual findings, expert evidence, Article 14 read with Article 3, and Article 8. The central question was whether the tribunal had lawfully determined the generic country position while dealing with the individual appeals.

Applications refused. Lord Justice Laws refused permission to appeal in all five applications.

1. Country conditions. The court accepted the approach stated in S and Others [2002] Immigration and Nationality Law Reports 416, that an Immigration Appeal Tribunal may determine the political and factual backdrop for a particular country so that later appeals can be decided consistently. The tribunal must still examine individual cases in their fullness. Here, however, the appeals had been presented and argued on a generic basis, concentrating on conditions generally affecting returning Croatian Serbs. It was therefore permissible for the tribunal to make a general finding and then ask whether any claimant had special or exceptional circumstances taking the case outside it.
2. Expert evidence. Expert evidence has an important role in assessing risk in a complex or unstable political situation. That does not require the tribunal to accept any particular report. The tribunal remains responsible for assessing the weight of the evidence. The earlier guidance in S and Others did not distinguish between routine country reports and individual expert opinions, although the tribunal was not necessarily precluded from considering that distinction. The tribunal had conscientiously examined a substantial body of material, and no reasonable prospect of a conventional Wednesbury challenge was shown.
3. Article 14 and Article 3. Article 14 is not freestanding, but may apply where discriminatory conduct falls within the ambit of another Convention right even without a breach of that right. Article 3 has an absolute quality. Treatment falling below its threshold, however discriminatory, is not within Article 3’s scope for an Article 14 claim. The Article 14 ground was therefore insubstantial where no standalone Article 3 breach was established.
4. Article 8. Ullah [2002] EWCA Civ 1856 precluded a complaint that United Kingdom authorities would violate Article 8 by removing a person to a country where Article 8 would be breached. Even if that approach were later rejected, the tribunal had applied the alternative Article 8 learning, leaving no room for a discrete complaint in these cases.

Counsel for the claimants was entitled to detailed assessment of leading counsel’s costs of preparing the grounds and skeleton argument.

1. Court of Appeal (Civil Division): On 20 May 2003, Lord Justice Laws refused permission to appeal in five applications arising from the tribunal’s determinations.
2. Immigration Appeal Tribunal: Following a hearing on 16 and 17 October 2002, the tribunal treated the appeals on a generic country-conditions basis, concluded that returning Croatian Serbs faced no general real risk of persecution or Convention breach, and found no special circumstances in the individual cases. In SK, it allowed the Secretary of State’s appeal from the adjudicator’s decision.