Santukabare v Secretary of State for the Home Department

On an immigration appeal, a finding that return would not create a real risk of persecution is not perverse merely because some evidence points the other way. The question is whether the conclusion was one which no reasonable adjudicator could properly reach. Country information may be assessed alongside the claimant’s individual history and circumstances in the proposed place of return.

The Immigration Appeal Tribunal must first identify an error of law. If none exists, the appeal should stop. A broader reconsideration is permitted only after an error of law has been found.

The appellant, a citizen of the Democratic Republic of Congo, appealed against an Immigration Appeal Tribunal decision promulgated on 28 February 2005. The Tribunal had dismissed his appeal from an adjudicator’s decision promulgated on 25 November 2003, which rejected his asylum and human rights appeals.

The adjudicator accepted the appellant’s credibility and medical evidence but concluded that he could safely return to Kinshasa. The appellant argued that the country evidence made that conclusion perverse and that the Tribunal had exceeded its jurisdiction by considering later information without identifying an error of law. The Court also had to determine whether it had jurisdiction after the Tribunal refused to entertain the permission application as out of time.

Lord Justice Pill gave the judgment. Lord Justice Keene agreed, and Lord Justice Lloyd agreed with both judgments.

1. Jurisdiction. The Court had jurisdiction to hear the appeal. Following Ozdemir v Secretary of State for the Home Department [2003] EWCA Civ 167, a refusal by the Tribunal to entertain an application for permission to appeal counted as a refusal of permission within Schedule 4, paragraph 23(2).
2. Tribunal’s appellate function. At the relevant time the Immigration Appeal Tribunal had jurisdiction only to correct errors of law. Applying the decision in CA of July 2004, its first task was to decide whether the adjudicator had made such an error. If there was no error, the appeal should stop there. A broader consideration was permitted only after an error of law had been identified.
3. Perversity. The adjudicator had asked the correct question concerning real risk on return. His conclusion was not one which no reasonable adjudicator could properly have reached. The evidence pointed in different directions, but the conclusion was consistent with the CIPU report and open on the evidence as a whole. The adjudicator was entitled to assess Dr Kennes’s report in that context and to give weight to the appellant’s long residence, education and employment in Kinshasa. His reasons were sufficient and disclosed no error of law.
4. Later information. The Tribunal had not departed from its proper function. Its consideration of information arising after the adjudicator’s decision was directed to whether later developments warranted reconsideration or a recommendation to the Secretary of State. It did not cure or replace an identified error of law, and the Tribunal expressly considered that the later information did not materially alter the position.
5. The appeal was dismissed. There was no order for costs, save for detailed assessment of the appellant’s public funding certificate.

• Court of Appeal (Civil Division) — dismissed the appeal: [2005] EWCA Civ 1741.
• Immigration Appeal Tribunal — on 28 February 2005 dismissed the appeal from the adjudicator’s decision of 25 November 2003.
• Adjudicator — dismissed the appellant’s asylum and human rights appeals.