Shamri v Secretary of State for the Home Department

In an asylum or human-rights appeal, an appellate tribunal must identify why the individual claimant, rather than a disadvantaged group generally, faces persecution for a Convention reason or treatment contrary to Article 3. It must apply the reasonable-degree-of-likelihood test to the evidence and make findings on the nature and severity of the anticipated treatment. A tribunal cannot base its decision on an assumption unsupported by evidence, such as inevitable disclosure of an asylum claim during return negotiations, without giving the parties an opportunity to address it. Adequate reasons are required for findings that discrimination crosses the persecution or Article 3 threshold.

A Kuwaiti Bidoon claimed asylum in the United Kingdom after arriving on a borrowed Saudi passport. The Secretary of State rejected the claim, and an adjudicator dismissed his appeal, finding that the alleged ill-treatment did not reach the persecution threshold and that return would not breach Articles 3 or 8 of the European Convention on Human Rights and Fundamental Freedoms.

The Immigration Appeal Tribunal allowed the appeal on asylum and human-rights grounds. It relied on the claimant’s general position as a Bidoon, his past imprisonment and the asserted risk on return, and concluded that return negotiations would inevitably disclose his failed asylum claim. The Secretary of State appealed on the Tribunal’s evidential, procedural and legal errors.

1. Appeal allowed. The Immigration Appeal Tribunal’s decision was quashed and the case was remitted to a differently constituted Tribunal for fresh reconsideration. There was no order as to costs, save for detailed assessment of the respondent’s publicly funded costs.
2. The Tribunal failed to identify why this claimant, as distinct from Bidoon generally, qualified for protection. General disadvantage and denial of rights were not enough. The Tribunal had to identify facts showing a specific risk of persecution for a Convention reason or a breach of Article 3. The comparison with Alenezi showed the need to identify circumstances taking an individual claimant out of the general category.
3. The Tribunal applied the wrong approach to proof by saying that it was left in doubt whether the claimant had been or would be persecuted. Applying Sivakumaran, the question was whether the evidence demonstrated a reasonable degree of likelihood of persecution on return. The Tribunal also needed a proper analysis of the facts said to create that risk.
4. The Tribunal made no adequate finding on the severity of the treatment anticipated on return. The treatment described appeared, on its face, to amount to discrimination, but the Tribunal did not explain why it crossed the persecution or Article 3 threshold. Its determination was materially deficient in reasons.
5. The finding that return negotiations would inevitably disclose the asylum claim was unsupported by evidence. The Secretary of State had not been given an opportunity to address the point, contrary to the procedural requirement identified under rule 22(4) of the Rules. The Tribunal was also not entitled to rely on the alleged breach of the interview confidentiality assurance. The assurance permitted specified disclosures and, in any event, the fact that the claimant was an asylum seeker pre-dated the interview.

• Immigration Appeal Tribunal: On 13 August 2002, allowed the claimant’s appeal on limited grounds concerning returnability and human rights, while the Refugee Convention ground had not been granted permission.
• Court of Appeal (Civil Division): Allowed the Secretary of State’s appeal, quashed the Tribunal’s decision and remitted the case to a differently constituted Immigration Appeal Tribunal for fresh reconsideration.