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

Judicial review does not permit the court to reweigh evidence or substitute its own view for that of an adjudicator. A challenge to an asylum determination must identify an established public-law error. Related asylum appeals should ordinarily be heard together where they raise common questions or concern members of the same family, but a breach of that procedural opportunity does not make one appeal succeed automatically. The Immigration Appeal Tribunal may consider a new human-rights ground raised on appeal. It may also take the unexplained failure to raise it earlier into account when assessing its weight and prospects of success. Family life under Article 8 is not generally assumed between an adult child and parent. Further dependency beyond normal emotional ties is required.

The claimant, a Kosovo Albanian, sought judicial review of the Immigration Appeal Tribunal’s refusal of leave to appeal against an adjudicator’s dismissal of his asylum and Article 8 claim. He argued that the adjudicator had given inappropriate weight to particular evidence, failed to consider relevant UNHCR material, and should have taken account of his mother’s successful asylum appeal. He also raised, for the first time before the Tribunal, a claim based on family life with his mother. The issues were whether the adjudicator or Tribunal had committed an error of law, whether the separate family appeals should have been considered together, and whether the new Article 8 ground had realistic prospects of success.

1. Application dismissed. The grounds concerning the weight and adequacy of the evidence were not suitable grounds for judicial review. The adjudicator’s findings were supported by the evidence, and the Tribunal was entitled to agree with them. The court was not concerned to make its own findings of fact.
2. Rule 30 (2) of the Immigration and Asylum Appeals (Procedure) Rules 2000 stated the overriding objective of securing the just, timely and effective disposal of appeals. Rule 42 (a) and (b) permitted related appeals to be heard together where a common question of law or fact arose or the appellants were members of the same family. The case illustrated the wisdom of that course. However, the claimant had not disclosed his mother’s appeal, and the two adjudications involved different evidence and materially different factual circumstances.
3. It was speculative to predict what effect the mother’s determination would have had on the claimant’s appeal. The mother’s evidence concerned an incident which she treated as influential, whereas the claimant’s evidence described second-hand information. The claimant’s evidence also included a 1996 family visit to Kosovo which was absent from the mother’s case. The Tribunal was therefore entitled to reject the argument that the mother’s successful appeal should have altered the result.
4. The Tribunal had jurisdiction to entertain a new human-rights ground. It was also entitled to consider the unexplained failure to raise it before when assessing the claim’s weight and prospects of success. The claimant’s original Article 8 case concerned his wife and child; the proposed new case concerned his relationship with his mother.
5. Applying the principle stated in Ahmut v Netherlands, and approved in R v Duka and the Secretary of State for the Home Department, family life between a parent and adult child was not to be assumed. It required evidence of further dependency going beyond normal emotional ties. No such evidence had been advanced. In the circumstances, the Tribunal’s description of the new claim as plainly unarguable was acceptable.
6. The Tribunal’s decision disclosed no established ground entitling the claimant to judicial-review relief. The application was dismissed. Detailed taxation of the publicly funded claimant’s costs was permitted, subject to filing within seven days.

High Court (Administrative Court): Mr Justice Gage granted permission to apply for judicial review on 25 October 2002. Mr Justice Mackay dismissed the application challenging the Immigration Appeal Tribunal’s refusal of leave to appeal.