AS (Bangladesh), R (On the Application Of) v The Secretary of State for the Home Department

On an application for permission to appeal from an Upper Tribunal decision concerning judicial review, the Court of Appeal considers only whether the Upper Tribunal arguably erred in law. The application cannot be used to reargue the merits of the underlying immigration claim. Points not raised in the grounds of judicial review cannot establish an error of law. Material unavailable to the Secretary of State when the decision was made cannot demonstrate that the decision was Wednesbury unreasonable. New evidence or arguments may instead be advanced through properly made further submissions under paragraph 353 of the Immigration Rules.

The applicant, a Bangladeshi citizen, claimed that removal would breach Articles 2 and 3 of the European Convention on Human Rights because of his conversion to Christianity and the risk posed by Islamic extremists. The First-tier Tribunal rejected his account and found, alternatively, that sufficient protection and internal relocation were available in Bangladesh. Permission to appeal was refused.

The Secretary of State later refused to treat further submissions, including evidence of baptism and additional material concerning Bangladesh, as a fresh claim under paragraph 353 of the Immigration Rules. The Upper Tribunal refused permission to apply for judicial review, both on the papers and on renewal. The central issue was whether the renewed decision disclosed an arguable error of law.

1. Application refused. Lord Justice Flaux held that there was no arguable basis for saying that Upper Tribunal Judge Allen’s decision disclosed an error of law.
2. The grounds of appeal ranged over the credibility findings and merits of the original protection claim. Those matters could not found an appeal against the Upper Tribunal’s refusal of permission to apply for judicial review. The relevant question was whether that decision itself arguably contained an error of law.
3. A point not raised in the grounds of judicial review cannot be used before the Court of Appeal to establish that the Upper Tribunal erred in law. The applicant’s argument concerning the Bangladeshi authorities’ alleged pursuit of blasphemy offences had not been raised below and therefore could not be relied upon.
4. New material which was not before the Secretary of State when the decision was made could not establish that the decision was Wednesbury unreasonable. It could still less establish an error of law by the Upper Tribunal in concluding that the Secretary of State’s decision was rational and lawful. The newspaper articles concerning attacks on the applicant’s brother therefore could not assist the appeal.
5. The Court distinguished the factual error made by Upper Tribunal Judge Coker on the papers from the decision under challenge. Judge Allen had not made the same error and had correctly considered the relevant material.
6. Flaux LJ observed that the new material and the blasphemy point could form the basis of properly focused further submissions to the Secretary of State under paragraph 353 of the Immigration Rules. That observation did not affect the limited question before the Court.

Order: application refused.

1. Court of Appeal (Civil Division): Refused the application for permission to appeal against the Upper Tribunal’s renewed refusal of permission to apply for judicial review.
2. Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge Allen refused the renewed application at an oral hearing on 14 December 2018.
3. Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge Coker had earlier refused the application on the papers on 4 October 2018.
4. First-tier Tribunal: The applicant’s protection appeal was dismissed on 25 August 2017. Permission to appeal was refused by the First-tier Tribunal and subsequently by the Upper Tribunal.