Mansani v Immigration Appeal Tribunal & Anor

In assessing asylum and human-rights claims, courts must distinguish between refugee status and the separate right to remain under the European Convention on Human Rights. The internal-relocation inquiry for refugee status is directed to whether relocation would be unduly harsh for a Refugee Convention reason. Hardship arising from the absence of wider civil, political or socio-economic rights does not normally determine refugee status. A failure to apply that inquiry does not establish an error where the claim is being considered under Article 3 or Article 8 instead. A judicial-review claimant must generally pursue the case advanced before the tribunal below, and permission-stage review is subject to the Robinson threshold. Certification under section 96(2) of the Nationality, Immigration and Asylum Act 2002 may exclude an appeal where the relevant ground was previously raised, or should have been raised, in an earlier appeal.

The claimant, a Sudanese national, claimed asylum after entering the United Kingdom. The Secretary of State refused the claim, and an Adjudicator dismissed her appeal on asylum and human-rights grounds. The Immigration Appeal Tribunal refused permission to appeal.

During the ensuing judicial-review proceedings, the claimant formed a relationship, had a child and married. The Secretary of State refused to treat her further representations as a fresh claim and certified the claim under section 96(2) of the Nationality, Immigration and Asylum Act 2002. The claimant challenged the Tribunal’s refusal of permission, the Adjudicator’s conclusions, the Secretary of State’s later decision and the certificate. The central issues concerned internal relocation, Articles 3 and 8, a claimed social group, and whether the statutory certification conditions were met.

1. The judicial-review challenge was dismissed. The claimant could not recast her case by relying on internal relocation and membership of a social group when those matters had not been raised before the Adjudicator or the Immigration Appeal Tribunal. The proposed grounds also failed the two-limb Robinson threshold: there was neither a strong prospect of success nor a point readily discernible on the existing material (para [17]).
2. The internal-flight argument did not disclose an arguable error in any event. Following AE and FE, the assessment of refugee status must be kept distinct from consideration of Convention human-rights claims. The “unduly harsh” approach concerns whether relocation is unreasonable for a Refugee Convention reason. The Adjudicator was not arguably wrong for failing to apply that approach to the Article 3 issue, which he separately considered (paras [19]-[20]).
3. The Adjudicator’s findings that return would involve poverty, hardship and the absence of a support system did not establish treatment contrary to Article 3. The Article 8 challenge added nothing in the circumstances. On the approach in Ullah, removal did not engage Article 8 where the anticipated treatment fell short of Article 3 (para [21]).
4. The Secretary of State was entitled to conclude that the objective evidence did not establish a real risk based on religion, ethnicity or membership of the proposed social group. The further representations therefore had no realistic prospect of success. The Article 3 claim stood or fell with the asylum claim, while the Article 8 claim failed either because of the principle in Ullah or because removal was proportionate under the approach in Mahmood (paras [39]-[40]).
5. The certificate was lawful. The claims based on Christianity and vulnerability as a woman fell within section 96(2)(a). The family-life case should have been raised in the earlier appeal and therefore fell within section 96(2)(b). The Secretary of State was entitled to take account of the adverse decision in the husband’s appeal. The application was dismissed (paras [41]-[45]).

1. Adjudicator: dismissed the claimant’s asylum and human-rights appeal on 25 March 2002.
2. Immigration Appeal Tribunal: refused permission to appeal on 3 May 2002.
3. High Court (Administrative Court): dismissed the judicial-review claim against the Tribunal’s decision, the Secretary of State’s later decision and the certificate. Permission to appeal was refused.