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

On judicial review of a refusal of permission to appeal, the court must consider both whether the refusal was legally flawed and whether the proposed appeal had a real prospect of success. A flaw does not automatically reopen every issue. Risk on return must be assessed cumulatively by reference to the individual claimant’s history and evidence. Release from detention after payment of a bribe does not by itself establish that there was no adverse record or continuing official interest. Short tribunal reasons may be lawful when read in context and alongside the detailed decision below. Objective country material must be applied to the particular facts and claimant.

The appellant, a Tamil from Sri Lanka, claimed asylum on the basis of an Article 3 risk on return. The Secretary of State rejected the claim on credibility grounds. An adjudicator accepted the appellant’s account of LTTE involvement, detention, torture and release after payment of a bribe, but dismissed the appeal on 11 October 2002, finding insufficient likelihood of future persecution.

The Immigration Appeal Tribunal, through its Vice-President, refused permission to appeal on 30 November 2002. Judicial review permission was refused by the Administrative Court, including by Owen J after an oral hearing. Sedley LJ granted permission to appeal and directed a substantive judicial review hearing. The central issues were whether the Tribunal’s reasoning contained a non sequitur concerning the bribery-related release and whether the proposed appeal had a real prospect of success.

Appeal dismissed; no order for costs.

1. Lord Justice Gage held that, even assuming the Immigration Appeal Tribunal’s refusal of permission was flawed, the reviewing court was entitled to consider whether the proposed grounds had a real prospect of success. A finding of error did not require the court to reopen every issue or consider grounds not advanced before the Tribunal.
2. The adjudicator had understood the appellant’s history, including his detention and torture. The evidence did not establish the alleged connection between the torture and the detention of his brother-in-law as strongly as was later suggested. The adjudicator was entitled to accept the concession recorded in his decision and to find that the family association did not place the appellant in a special category likely to attract continuing official interest.
3. The adjudicator correctly understood and applied the guidance in Tharmakulaseelan [2002] UKIAT 03444. A bribery-related release, particularly from army custody, would not ordinarily be treated as an escape or lead to inclusion on a wanted list absent a special and credible reason. That guidance did not mean that detention could never be recorded. The adjudicator assessed the cumulative likelihood of an adverse record and continuing interest in this appellant, and his conclusion was open to him.
4. Mr Justice Holman agreed that the apparently illogical use of therefore in the Tribunal’s short reasons was resolved by reading them in context. The phrase adverse record referred to the adjudicator’s cumulative reasoning. The court was entitled to assume that the specialist Tribunal had considered the grounds of appeal and had concluded that they disclosed no material arguable error.
5. The adjudicator had considered the objective material, including the UNHCR letter. Applying that material to the particular facts and appellant disclosed no error of law. The appeal therefore had no real prospect of success.

• Court of Appeal (Civil Division) — On appeal from the Queen’s Bench Division Administrative Court, the court heard the matter as a substantive judicial review and dismissed the appeal under [2004] EWCA Civ 1489.
• Administrative Court — Permission for judicial review was refused on paper and again by Owen J after an oral hearing on 26 November 2003.
• Immigration Appeal Tribunal — The Vice-President refused permission to appeal on 30 November 2002.
• Adjudicator — The appellant’s asylum appeal was dismissed on 11 October 2002 after the Secretary of State rejected the claim.