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

An adjudicator’s determination need not address every item of evidence expressly. The court must read it as a whole and may infer findings. Judicial review is unwarranted where the same result would inevitably have been reached by another lawful route.

For internal relocation under the Refugee Convention, discriminatory denial of fundamental rights is relevant but is not automatically decisive. Where a claimant can worship privately and is not religiously obliged to preach or convert others, inability to proselytise does not make relocation unduly harsh. Under the Civil Procedure Rules 1998, the seven-day limit for this type of appeal is normally final, subject to exceptional circumstances.

The appellant, an Ahmadi from Pakistan, claimed asylum after alleging police interest, criminal complaints, death threats and anti-Ahmadi violence. A special adjudicator dismissed his asylum and human rights appeal on 10 July 2001. The Immigration Appeal Tribunal refused leave to appeal on 7 August 2001.

Sullivan J refused permission to apply for judicial review on paper on 25 January 2002. On renewal, Forbes J refused permission on 25 April 2002. The appellant sought permission to appeal to the Court of Appeal out of time. The central issues were whether the Tribunal had overlooked material evidence, misunderstood the First Information Reports, failed to address a charge under section 298(c) of the Pakistan Penal Code, or wrongly upheld internal relocation. The court also considered whether time should be extended.

The court unanimously refused permission to appeal and refused the extension of time.

1. Review of the adjudicator’s reasoning. Arden LJ held that an adjudicator need not deal expressly with every item of evidence. The determination must be read as a whole, including findings made by implication. Read in context, paragraph 5.16 dealt with the appellant’s status as a wanted person. Although the death threat was not addressed expressly, the internal-relocation conclusion could only have been reached on the basis that the threat did not affect the appellant in Karachi.
2. Inevitable outcome. Even if an omission or error were established, judicial review would not follow where the adjudicator would inevitably have reached the same result by another route. The court applied the principle in Manzeke v Secretary of State for the Home Department [1997] Imm AR 524 and R v Immigration Appeal Tribunal ex parte Judes [2001] EWCA Civ 825. The Tribunal’s description of the First Information Reports as suspect was supplementary and did not affect the adjudicator’s operative reasoning.
3. Section 298(c) and religious practice. The failure to address the more serious charge under section 298(c) of the Pakistan Penal Code did not justify review because the internal-flight finding was independently decisive. The appellant could practise privately in Karachi and was not under a religious obligation, while proceedings remained outstanding, to preach or convert others.
4. Internal relocation. Applying the approach in AE & FE v Secretary of State for the Home Department [2003] Imm AR 609 and R v Secretary of State for the Home Department ex parte Robinson [1998] QB 929, discriminatory denial of human rights may be relevant but is not necessarily sufficient to make relocation unavailable. On the facts, relocation within Pakistan was neither unreasonable nor unduly harsh. The court did not decide the Human Rights Act claim and noted the separate European Convention approach in R (Ullah) v Special Adjudicator [2003] 1 WLR 770.
5. Extension of time. Brooke LJ held that the seven-day period under rule 52.15(2) of the Civil Procedure Rules 1998 should normally bring this type of challenge to an end after refusals by the Tribunal and two High Court judges. Applying Sayers v Clarke Walker [2002] EWCA Civ 645, the CPR 3.9 factors favoured refusal. The application was 29 days late, was not made promptly, and the administrative error and the appellant’s conduct supplied no good reason. Exceptional circumstances were absent. Gage J agreed with both judgments, and Arden LJ agreed with Brooke LJ.

• Court of Appeal (Civil Division): permission to appeal against Forbes J’s order was refused, and the application for an extension of time was refused on 15 June 2004.
• High Court, Administrative Court: Forbes J refused permission to bring judicial review proceedings on 25 April 2002. Sullivan J had refused permission on paper on 25 January 2002.
• Immigration Appeal Tribunal: leave to appeal was refused on 7 August 2001.
• Special adjudicator: the appellant’s asylum and human rights appeal was dismissed on 10 July 2001.