Traore, R (on the application of) v Immigration Appeal Tribunal

On an application for judicial review of a refusal of leave to appeal, the court must assess the tribunal’s decision in the context of the grounds actually advanced. The tribunal need not consider grounds not included in the application. Leave is justified only where the appeal has a real prospect of success or there is another compelling reason for it to be heard. Intervention may nevertheless be required where the papers disclose a readily discernible and obvious point in the claimant’s favour that was not expressly raised. A carefully reasoned tribunal decision, based on material it has read and considered, will not be irrational or legally erroneous merely because a further, persuasive argument can later be developed.

The claimant, a Guinean national, sought judicial review of the Immigration Appeal Tribunal’s refusal of leave to appeal dated 10 February 2003. The Tribunal had refused leave from an adjudicator’s dismissal of his appeal against the Secretary of State’s refusal of asylum and removal directions.

The adjudicator accepted the claimant’s account of arrest, detention, torture and escape, but concluded that the evidence did not establish a continuing risk of persecution or a breach of the Refugee Convention or the European Convention on Human Rights. The claimant argued that the adjudicator’s reasoning was inadequate and that the Tribunal should have identified an obvious legal error.

1. The claim was dismissed. The Tribunal’s refusal of leave did not disclose irrationality or an error of law.

2. Under Rule 18 of the Immigration and Asylum Appeals Procedure Rules 2000, the Tribunal was not required to consider grounds outside the application. Leave could be granted only where the proposed appeal had a real prospect of success or there was some other compelling reason for it to be heard.

3. The relevant judicial-review question was whether the materials before the Tribunal disclosed a discernible or obvious point in the claimant’s favour which had not been expressed in the grounds, but which was sufficiently clear to require consideration. The principle stated in R v Secretary of State ex parte Robinson [1998] QB 929 was applied in that context.

4. The claimant’s further analysis was persuasive and showed how the case might have been advanced differently. It did not, however, identify an obvious point requiring the Tribunal to reach another conclusion. The Tribunal had considered the adjudicator’s determination, the country material and the grounds of appeal. Its conclusion was open to it and did not warrant supervisory intervention.

5. A public funding assessment was ordered.

• High Court (Administrative Court): the claim for judicial review of the Immigration Appeal Tribunal’s refusal of leave to appeal was dismissed.
• Immigration Appeal Tribunal: leave to appeal from the adjudicator’s determination was refused on 10 February 2003.
• Adjudicator: the claimant’s appeal against the Secretary of State’s refusal of asylum and removal directions was dismissed.