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

An appellate immigration tribunal may interfere with an adjudicator’s determination only where a proper legal or reasoning basis exists. A party that declined to appear at the original hearing will not normally obtain a remittal merely to raise factual matters that could have been addressed then. An adjudicator must confront material tensions between expert evidence and objective country material and explain the conclusion reached. A failure to do so can justify appellate intervention. Internal relocation need not be considered where the relevant risk is arrest and torture on arrival. The ordinary principle of finality applies equally in immigration appeals.

The applicant, a Kurdish Alevi citizen of Turkey, challenged an Immigration Appeal Tribunal determination allowing the Secretary of State’s appeal against an adjudicator’s decision allowing his asylum appeal. The Secretary of State had not been represented before the adjudicator. The Tribunal considered that the adjudicator had been disadvantaged by the absence of cross-examination and relevant country material, and remitted the case to a different adjudicator.

A Deputy High Court Judge refused permission to seek judicial review. Sedley LJ subsequently ordered that the matter proceed. The central issue was whether the Tribunal had a proper basis to interfere with the adjudicator’s determination and remit the case.

Laws LJ gave the first judgment. Judge LJ and Charles J agreed. The application for judicial review was dismissed, with no order for costs.

1. Proper basis for appellate intervention. The governing question was whether the Immigration Appeal Tribunal had a proper basis for interfering with the adjudicator’s determination. Only if that question was answered affirmatively would the Tribunal have a discretion whether to remit the case or decide it itself. The relevant jurisdiction flowed from the Immigration and Asylum Act 1999.
2. Absence of representation. A party that chose not to appear before the adjudicator could not normally obtain a remittal merely to ventilate factual matters that could have been raised at the original hearing. The principle applied equally to the Secretary of State and an immigrant. The Tribunal’s reasoning could not properly treat the Secretary of State’s absence, or the resulting lack of cross-examination, as an independent basis for allowing the appeal.
3. Failure to address material evidence. The adjudicator had set out expert evidence and a CIPU country report which potentially pointed in different directions. The adjudicator needed to explain why the applicant remained at risk on return in light of the report’s possible application to persons who had previously deserted the village guard scheme. The failure to address that tension constituted a defect in reasoning sufficient to justify the Tribunal’s intervention.
4. Internal relocation and wider observations. The court was not impressed by the internal-relocation complaint. If the applicant was at risk of being stopped at the airport and then detained and tortured, internal relocation did not arise. The Tribunal’s reasoning in paragraphs 19 to 24 was nevertheless unsatisfactory and unclear. The court also expressed concern about the absence of Home Office presenting officers and invited consideration of whether more substantial assistance should be provided, while expressly making no criticism of the Secretary of State.

• Court of Appeal (Civil Division): dismissed the application for judicial review; no order for costs.
• Immigration Appeal Tribunal: allowed the Secretary of State’s appeal against the adjudicator’s decision and remitted the matter for rehearing before a different adjudicator.
• High Court: a Deputy High Court Judge refused permission to seek judicial review on 12 August 2003. Sedley LJ ordered that the matter proceed on 17 October 2003.