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

Where an adjudicator accepts that an asylum claimant was detained but rejects the conclusion that the treatment amounted to torture, that does not necessarily reject the evidence of the treatment itself. The evidence may remain relevant to past persecution and future risk.

If the adjudicator substantially rejects accepted evidence, the rejection must be made clear and adequately explained. An Immigration Appeal Tribunal considering an application for leave to appeal must address the grounds advanced. Failure to engage with a central challenge to the adjudicator’s reasoning may vitiate the refusal of leave.

The claimant, a Yemeni citizen, sought judicial review of the Immigration Appeal Tribunal’s refusal of leave to appeal. An Adjudicator had dismissed his asylum and human rights appeals, accepting that he had been detained on several occasions but finding that the detentions did not establish persecution or a real risk of future persecution.

The claimant contended that the Adjudicator had also accepted his account of repeated ill-treatment in detention. The Immigration Appeal Tribunal treated the appeal grounds as challenging findings that the claimant had not been tortured. The central issue was whether the Adjudicator had rejected the evidence of ill-treatment, and whether the Tribunal had properly addressed that issue when refusing leave.

1. Judicial review allowed. The refusal of leave to appeal by the Immigration Appeal Tribunal was quashed. The claimant was awarded his costs.
2. The Adjudicator had clearly accepted the claimant’s periods of detention. The determination did not expressly reject his evidence of repeated punching, kicking, deprivation and other ill-treatment during those detentions. Nor did rejection of the proposition that the treatment amounted to torture necessarily imply rejection of the underlying evidence.
3. If the Adjudicator intended to reject, or substantially reject, the evidence of ill-treatment, it was necessary to say so clearly and explain why. The repetitive pattern of detention, release without charge and release following payment of bribes was considered in assessing the authorities’ level of interest, but was not identified as a reason for rejecting the evidence of what had occurred. The brother’s similar evidence had likewise not been rejected and was consistent with some objective material.
4. The Tribunal’s refusal of leave did not properly meet grounds which proceeded on the basis that the evidence of ill-treatment had been accepted. That failure left unaddressed a central flaw in the Adjudicator’s reasoning. It vitiated the approach to past persecution and consequently the assessment of future risk.
5. The court declined to interfere with the Adjudicator’s rejection of the first car incident and his findings concerning the second. Those were factual and credibility findings, and the court had neither a record of the evidence nor the opportunity to assess the claimant. They were not shown to be perverse. Other matters, including the claimant’s travel on his own passport and visa, could properly be considered but did not cure the fundamental defect.

1. Immigration Appeal Tribunal: refused leave to appeal on 26 July 2002.
2. High Court (Administrative Court): quashed the refusal of leave to appeal on judicial review and awarded the claimant his costs.