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

A human-rights challenge to an asylum decision requires facts capable of establishing a real risk of torture or inhuman or degrading treatment. Bare or limited findings concerning a private dispute, without a genuine fear of persecution, will not ordinarily support such a case. A judicial-review claimant cannot rely on a distinct argument that was never advanced before the specialist decision-maker. Delay between hearing and promulgation does not itself establish unfairness where the decision-maker made basic factual findings and no material prejudice is shown.

The claimant, an Iraqi Kurdish citizen, sought asylum in the United Kingdom after residing in the Kurdish autonomous area. The Special Adjudicator rejected his asylum claim, including claims based on social-group membership, political opinion and a family feud. The claimant also relied on Article 3 of the European Convention on Human Rights, advancing substantially the same case.

The Adjudicator dismissed the Article 3 claim by reference to the findings made on asylum. The claimant sought judicial review, challenging that conclusion and the delay between the hearing and promulgation of the determination. The central issues were whether there was an arguable Article 3 case and whether the delay or the Vice-President’s treatment of it created unfairness.

1. The claim was dismissed. The claimant’s concession meant that the true basis of the asylum decision could not be challenged. The proposed Article 3 challenge therefore had to be considered on the limited factual findings actually made.
2. The findings concerning the family feud were bare and thin. The claimant had not established a genuine fear for his life, and the accepted facts were insufficient to support an arguable risk that return would expose him to torture or inhuman or degrading treatment or punishment under the European Convention on Human Rights, Article 3.
3. The Article 3 argument had also not been presented discretely to the Special Adjudicator. It had been advanced in parallel with the asylum claim and could not provide a substantial basis for judicial review once the asylum reasoning was accepted.
4. The delay between the hearing and promulgation did not establish unfairness. The Vice-President’s observation that promulgation should not be delayed where credibility issues had been decided against a claimant was correct so far as it went. It did not mean that the principle had no application where some basic findings of fact had been made in the claimant’s favour.
5. No material consequence arose from any suggested inconsistency in the treatment of the delay, and no residual unfairness was shown. The application was accordingly dismissed, with the legally aided claimant permitted to seek an assessment of costs.

• Special Adjudicator: rejected the asylum and Article 3 claims.
• Immigration Appeal Tribunal: considered the complaint concerning delay between the hearing and promulgation.
• High Court (Administrative Court): dismissed the application for judicial review.