Dagdelen, R (on the application of) v Secretary of State for the Home Department

Where an asylum appeal ground was not raised before the Immigration Appeal Tribunal, the tribunal is required to act of its own motion only where the omitted point is an obvious point of Convention law with a strong prospect of success. Mere arguability is insufficient. The same approach applies to an alleged obvious error of fact. The test is an essential part of an appellate system handling a large volume of asylum appeals, rather than a technical obstacle. A tribunal does not err by refusing leave where it properly considers the grounds presented, the adjudicator addressed the allegedly overlooked issue, and the omitted point is neither obvious nor likely to succeed.

The claimant, a Turkish national and Alevi Muslim, sought asylum on the basis of alleged PKK involvement, religious identity and the persecution of relatives. An adjudicator rejected the principal factual account and concluded that the claimant would not face a serious risk on return. The Immigration Appeal Tribunal refused leave to appeal, finding that the adjudicator’s decision was well reasoned and disclosed no error of law.

Permission for judicial review was granted on the issue whether the Tribunal should have identified, of its own motion, an alleged failure by the adjudicator to take account of the claimant’s family connections with the PKK. The claimant also alleged errors concerning the assessment of his own arrests, but that ground was outside the permission granted.

1. Claim dismissed. The only live issue was whether the Immigration Appeal Tribunal erred in refusing leave to appeal because the notice of appeal had not raised the claimant’s family-related point.
2. The court assumed, in the claimant’s favour, that the Tribunal had jurisdiction under the Immigration and Asylum Appeals (Procedure) Rules 2000 to consider an unpleaded ground. The governing approach was that stated in R v Secretary of State for the Home Department Ex Parte Robinson [1998] QB 929: appellate authorities should focus primarily on the arguments advanced, but should identify an omitted point where it is obvious and has a strong prospect of success. Mere arguability is insufficient.
3. The same approach applies to an alleged obvious error of fact, following Kolcak v Immigration Appellate Authority [2001] EWHC Admin 532. The Robinson test is an integral feature of the asylum appeal system and is not a technical stumbling block.
4. The adjudicator had taken account of the family’s alleged PKK involvement. The family evidence was subsidiary to the claimant’s principal case, was dealt with in the adjudicator’s findings, and did not require greater detail than the evidence supplied. The adjudicator also recognised that refugee protection could, in principle, arise from relatives’ activities, before assessing whether that principle applied on the facts.
5. The authorities relied on by the claimant did not assist. Elidemir [2002] UKIAT 00300 concerned a point specifically raised in the grounds of appeal. Ozcan v Immigration Appeal Tribunal [2002] EWCA Civ 1133 likewise involved a point canvassed in the notice of appeal. R v Immigration Appeal Tribunal Ex Parte Shen [2000] INLR 389 merely applied Robinson on materially different facts.
6. The Tribunal had properly considered the grounds presented and was not required to identify and pursue the omitted family-related point. The claim for judicial review was dismissed. The claimant’s publicly funded costs were directed to taxation.

• Adjudicator: dismissed the claimant’s asylum and human-rights appeals after finding that he would not face a serious risk on return.
• Immigration Appeal Tribunal: refused leave to appeal on 18 October 2002, concluding that the adjudicator’s findings were reasoned and disclosed no error of law.
• High Court (Administrative Court): granted permission for judicial review on the family-related issue but dismissed the claim.