Khan v Secretary of State for the Home Department

Permission to appeal should be granted where the proposed challenge is properly arguable and fit for full consideration. In an immigration appeal, it is important to identify clearly whether the alleged defect in an adjudicator’s determination is an error of law engaging the appellate tribunal’s jurisdiction, rather than disagreement with a sustainable factual assessment. A tribunal’s treatment of an earlier decision on sufficiency of protection may itself be arguable where the distinction was rejected without adequate analysis.

The appellant, a Pakistani national, claimed asylum based on political activity, threats and an armed attack. The Secretary of State refused the claim, but an adjudicator allowed the appeal. The IAT allowed the Secretary of State’s appeal, found material errors of law and remitted the matter. A different immigration judge then dismissed the appellant’s appeal.

The AIT and Richards LJ refused permission to appeal. On renewal, the appellant challenged the IAT’s jurisdiction, particularly its finding that the adjudicator had erred in law when assessing sufficiency of protection and distinguishing Hussein. The issue was whether those grounds were properly arguable.

1. Application allowed. Laws LJ granted permission to appeal.
2. The renewed grounds raised an arguable challenge to the IAT’s finding that the adjudicator had made an error of law. The adjudicator had made factual findings, accepted the appellant as substantially credible and relied on that account in concluding that there would not be a sufficiency of protection. It was arguable that this was a sustainable evidential assessment rather than an error of law.
3. The IAT had held that the adjudicator was not entitled to distinguish Hussein without more. That conclusion was also arguable. The proposed appeal therefore raised a properly arguable question about the boundary of the IAT’s law-only jurisdiction.
4. No final view was expressed on the merits. The appellant might face an uphill struggle at the substantive hearing, but the issue was fit for full argument. The appeal was to proceed, with the constitution potentially including a High Court judge.

• Secretary of State: Asylum claim refused on 5 May 2004.
• Adjudicator: Appeal allowed on 6 October 2004.
• IAT: Secretary of State’s appeal allowed on 14 April 2005 and matter remitted for rehearing.
• Immigration judge: Appeal dismissed after remittal.
• AIT: Permission refused on 26 September 2005.
• Court of Appeal: Richards LJ refused permission on the papers on 31 January 2006. On renewal, Laws LJ allowed the application.