Vijayanth v Secretary of State for the Home Department

An appellate immigration tribunal must make findings on the material facts on which risk on return depends. Where a claimant’s release from detention is ambiguous, the tribunal must determine whether the releasing organisation acted with or against the authorities and whether the claimant remains wanted. It cannot decide the issue through an unexplained assumption. Where country conditions remove an appreciable general risk, the individual risk of detention and consequent torture or ill-treatment may remain decisive. The appellate standard reaffirmed in [2004] EWCA Civ 56 requires intervention only where a different view is required.

The appellant, a Sri Lankan Tamil, succeeded before an adjudicator on both asylum and human-rights grounds on 15 May 2003. The adjudicator accepted that he had twice been detained and ill-treated by the Sri Lankan authorities, and that his releases had been arranged through the EPDP.

The Immigration Appeal Tribunal allowed the Secretary of State’s appeal on 29 December 2003. It concluded that the appellant was no longer of interest to the authorities and refused permission to appeal. Lord Justice Maurice Kay granted permission. The central issue before the Court of Appeal was whether the Tribunal had failed to determine how the circumstances of the releases affected whether the appellant remained wanted, and therefore whether he faced a risk of detention and torture or inhuman treatment on return.

1. Appeal allowed and remitted. The appeal was allowed and the matter was remitted to a differently constituted Immigration Appeal Tribunal. Costs were ordered subject to detailed assessment if not agreed.
2. Material factual ambiguity. The critical issue was whether the EPDP had acted with the army, enabling an official release in return for a bribe, or had acted against the army by smuggling the appellant out of custody. The consequences for whether he remained on a wanted list were materially different. Neither the adjudicator nor the Tribunal made an explicit finding on this issue. Each decision therefore rested on an unexplained assumption, one favourable to the appellant and the other adverse to him.
3. Risk on return. The developing peace process meant that there was no appreciable general risk of detention for returned Tamils. The decisive individual question was whether this appellant remained wanted. If he did, the objective material indicated a real risk of consequential torture or ill-treatment. The reason for the original detention, including whether it arose from targeted action or a general roundup, raised no separate issue in light of the findings about the country situation.
4. Appellate standard. Applying the standard reaffirmed in Subesh [2004] EWCA Civ 56, the Immigration Appeal Tribunal should not interfere with an adjudicator’s decision unless it is required to adopt a different view. That standard could not properly be applied without findings on the critical factual question. The remitted Tribunal was to affirm or rebut the adjudicator’s implicit assumption on the evidence available, with further objective evidence admissible only in accordance with the applicable rules.

• Court of Appeal (Civil Division): allowed the appeal and remitted the matter to a differently constituted Immigration Appeal Tribunal in [2004] EWCA Civ 1161.
• Immigration Appeal Tribunal: on 29 December 2003 allowed the Secretary of State’s appeal against the adjudicator’s decision and refused permission to appeal.
• Adjudicator: on 15 May 2003 allowed the appellant’s asylum and human-rights appeals.