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

Where an immigration claimant relies solely on the treatment likely to be received in the receiving state, and that treatment does not reach the threshold of Article 3 of the European Convention on Human Rights, the court is not required to recognise that another Convention article is engaged. This includes Article 8 where no independent Article 8 case has been advanced. Any humanitarian decision outside the Convention remains subject to ordinary judicial review principles. An adjudicator and the Immigration Appeal Tribunal are also confined to the grounds properly raised in the relevant appeal or application. A judicial review challenge will fail where the Article 8 ground was not independently raised and there was no supporting evidence before the lower decision-maker.

The claimant, an Iranian national and practising homosexual, challenged the Immigration Appeal Tribunal’s refusal of permission to appeal against an adjudicator’s determination. The adjudicator had rejected his asylum and human-rights claims, finding no real risk of treatment contrary to Article 3 on return to Iran. Article 8 was mentioned in the claimant’s written material and in the grounds of appeal, but it had not been advanced independently before the adjudicator or tribunal.

The judicial review application was limited to Article 8. The court considered whether the tribunal had erred in refusing permission and whether the application should be adjourned pending a possible appeal in the linked Court of Appeal cases of Ahsan Ullah v the Special Adjudicator and Thi Lien Do v Secretary of State for the Home Department.

1. Application refused. The tribunal was entitled to refuse permission to appeal. The claimant’s Article 8 ground had not been independently raised before the adjudicator or in the application for permission to appeal.

2. Rule 18 paragraph 6 provided that the tribunal was not required to consider grounds other than those included in the application. The claimant’s references to Articles 2, 3 and 8 were made collectively and did not present a distinct Article 8 case.

3. The court was bound by the Court of Appeal’s decision in the joint cases of Ahsan Ullah v the Special Adjudicator and Thi Lien Do v Secretary of State for the Home Department. Where Convention reliance rests solely on treatment anticipated in the receiving state, and that treatment is insufficiently severe to engage Article 3, the English court is not required to recognise that another Convention article is engaged. Exceptional leave to remain on humanitarian grounds may nevertheless be available, subject to ordinary judicial review principles rather than Convention constraints.

4. The adjudicator had found no real risk of treatment contrary to Article 3. Consequently, there could be no relevant Article 8 risk on the basis advanced. In any event, there was no evidence capable of supporting an independent Article 8 claim below. The court therefore refused to adjourn pending any appeal in the Court of Appeal cases, since a different legal conclusion would not affect this claimant’s case.

• Adjudicator: dismissed the claimant’s asylum and human-rights appeal, finding no real risk of treatment contrary to Article 3 on return to Iran.
• Immigration Appeal Tribunal: refused permission to appeal, concluding that the proposed grounds had no reasonable prospect of success.
• High Court (Administrative Court): refused judicial review. The application proceeded only on the Article 8 ground.