Kirupakaran, R (on the application of) v Immigration Appellate Authority

On judicial review of a refusal of leave to appeal in an asylum case, an applicant is entitled to proper consideration and a reasoned decision unless the proposed appeal is plainly hopeless. The assessment must distinguish between the durability of changed country conditions and their actual effect on the individual’s risk on return. A cease-fire may reduce the risk of detention, but it does not by itself determine the separate risk of detention or ill-treatment if detention occurs. Where the evidence does not make the appeal clearly doomed to fail, the specialist tribunal should undertake the assessment. The court should not substitute its own view on the merits for that of the tribunal.

The claimant, a Tamil from Sri Lanka, sought judicial review of the Immigration Appeal Tribunal’s refusal of leave to appeal against an adjudicator’s dismissal of his asylum claim. The adjudicator had accepted his account of past detention, persecution and torture by the Sri Lankan army and PLOTE, but concluded that the cease-fire and changed conditions meant that he would no longer face a real risk on return.

The Secretary of State conceded that the Tribunal’s reasons were inadequate, but argued that remittal would serve no purpose because the appeal had no reasonable prospect of success. The central issue was whether the court could itself conclude that the proposed appeal was hopeless.

1. Relief. The Immigration Appeal Tribunal’s refusal of leave to appeal was quashed. The application for leave was remitted, if necessary, for reconsideration. The court deliberately left the ultimate question whether leave should be granted to the Tribunal.
2. The claimant was entitled to proper consideration of his application and a reasoned decision unless it was shown that the application was hopeless and that remittal would serve no purpose.
3. The adjudicator had wrongly coalesced two distinct questions: first, whether the cease-fire and other changed circumstances were sufficiently durable to affect risk on return; and secondly, what effect those circumstances had on the claimant’s individual risk, including the risk of identification, detention and ill-treatment. A reduction in risk caused by a cease-fire did not itself resolve the separate question of the consequences if the claimant were detained.
4. The country material showed substantial improvement, including reduced arrests and human-rights abuses, but it also indicated continuing risks of torture in custody. It was therefore insufficient for the court to conclude that the proposed appeal was doomed to failure.
5. Because the Immigration Appeal Tribunal was a specialist tribunal with greater familiarity with the objective country material, the assessment should ordinarily be made by it unless the case was open and shut. The Tribunal was to consider, in particular, the risk of detention on return and the risk of significant detention or ill-treatment if detention occurred.

• Adjudicator: Accepted the claimant’s account but dismissed his asylum appeal, concluding that changed conditions following the cease-fire removed the relevant real risk on return.
• Immigration Appeal Tribunal: Refused leave to appeal. The refusal was inadequately reasoned.
• High Court (Administrative Court): Quashed the Tribunal’s decision and required reconsideration of the application for leave to appeal, without determining whether leave should ultimately be granted.