RA (Lebanon) v Secretary of State for the Home Department

Article 3 claims require separate consideration of whether there is a real risk of treatment and whether it reaches the required severity threshold. These questions must be distinguished from the standard of proof applied to primary factual findings and from the Refugee Convention persecution inquiry. An adjudicator’s determination may be unsafe in law where, read as a whole, it does not show that the correct Article 3 approach was applied. An appellate immigration tribunal is entitled to identify that error. The challenge to that conclusion had no real prospect of success, so permission to appeal on that ground was refused.

The appellant, a stateless Palestinian, claimed asylum and protection under the Refugee Convention and the European Convention on Human Rights. An adjudicator accepted much of his account but rejected the asylum claim, while finding under Article 3 that return to Lebanon created a real risk of ill-treatment by the authorities or rival factions.

The Immigration Appeal Tribunal held that the adjudicator had not applied the correct Article 3 test and treated the determination as unsafe. It declined to remit the case. The appellant later obtained permission to appeal on a separate ground concerning protection by Fatah, while seeking permission on the Article 3 ground. A proposed consent order would have remitted the case, but no order had been made. The central issue was whether permission should be granted on the Article 3 ground.

1. Application refused on ground 1. The proposed challenge to the finding that the adjudicator had erred in law on Article 3 was devoid of merit and permission to appeal on that ground was refused.
2. The Article 3 inquiry requires examination of whether there is a sufficient risk of treatment and whether the apprehended treatment is sufficiently severe to engage Article 3. That legal test must be considered separately from the standard of proof applied to primary factual findings.
3. Reading the adjudicator’s determination as a whole, and particularly paragraph 19 together with the earlier reasoning, it was difficult to conclude that the correct Article 3 approach had been applied. The Immigration Appeal Tribunal was therefore entitled to find an error of law rendering the determination unsafe.
4. The court had regard to AH (Sudan) v SSHD [2007] 3 WLR 832, including Baroness Hale’s observation that ordinary courts should approach appeals from specialised tribunals with an appropriate degree of caution. The court applied that observation to the Tribunal’s assessment in this case.
5. Ground 2 was allowed. The formal order records that the application was refused on ground 1 and allowed on ground 2. The jurisdictional issue arising from the proposed consent order was consequently of no real consequence.

• Court of Appeal (Civil Division): Permission to appeal on ground 1 was refused. The formal order recorded that ground 2 was allowed.
• Asylum and Immigration Tribunal: On 5 May 2005, permission to appeal was granted on ground 2 but refused on ground 1. The Tribunal considered that the earlier Immigration Appeal Tribunal determination might contain insufficient reasoning and an error of law.
• Immigration Appeal Tribunal: The Tribunal held that the adjudicator had not applied the correct Article 3 test, treated the determination as unsafe, and declined to remit the matter.