COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ADMINISTRATIVE COURT
(MR JUSTICE MACKAY)
Thursday, 3rd May 2001
B e f o r e :
(LORD JUSTICE SIMON BROWN)
LORD JUSTICE MUMMERY
LORD JUSTICE LONGMORE
|TEWEDROS TADESSE HAILE|
|- v -|
|IMMIGRATION APPEAL TRIBUNAL|
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Telephone No: 0171-421 4040 Fax No: 0171-831 8838
(Official Shorthand Writers to the Court)
MR ANGUS MCCULLOUGH (instructed by Treasury Solicitor, London) appeared on behalf of the Respondent
Crown Copyright ©
The background facts
The Third Special Adjudicator's Determination
"In cross-examination, having accepted that COEDF is a coalition of political parties, asked to identify his party the appellant identified this to be the civic forum and asked to identify the Captain's party he identified if I may significantly (sic) this to be the EPRF. It is in the public domain EPRF to be (sic) the Ethiopian Peoples Revolutionary Front. I find it significant because EPRF is unlikely to be associated with COEDF as EPRF is a popular Marxist group known to support the independence movement in Ethiopia. If this had been the Captain's party, I find it unlikely that the Captain would have associated himself with CODEF (sic) which advocates the unity of Ethiopia as their objectives. While I accept the appellant may well have been known to the Captain, I give no credence to the Captain's letter which describes the appellant to have exhilarated (sic) the parties underground movement by recruiting trusted individuals and to have organised secret meetings."
The IAT's Refusal of Leave to Appeal
"The determination is muddled in some parts and clearly was not read carefully before signature, there being some sentences which are incomprehensible. However it is quite clear, that the adjudicator did not accept the Applicant's claims and rejected the assertion that he had been influential politically. In these circumstances he was entitled to conclude that the Applicant would not be of any interest to the authorities on return."
The Judgment below
"He [Mr McCullough] acknowledged frankly the imperfections or the warts, as he called them, on the face of this decision but said that at the end of it, it was a coherent and concise decision, as the rules required, and the shortcomings lay not at the heart of its central reasoning but as to the form in which it was expressed."
The Fresh Evidence
"Because the rules place an onus on the asylum-seeker to state his grounds of appeal, we consider that it would be wrong to say that mere arguability should be the criterion to be applied for the grant of leave in such circumstances. A higher hurdle is required. The appellate authorities should of course focus primarily on the arguments adduced before them, whether these are to be found in the oral argument before the special adjudicator or, so far as the tribunal is concerned, in the written grounds of appeal on which leave to appeal is sought. They are not required to engage in a search for new points. If there is readily discernible an obvious point of Convention law which favours the applicant although he has not taken it, then the special adjudicator should apply it in his favour, but he should feel under no obligation to prolong the hearing by asking the parties for submissions on points which they have not taken but which could be properly categorised as merely 'arguable' as opposed to 'obvious'. Similarly, if when the tribunal reads the special adjudicator's decision there is an obvious point of Convention law favourable to the asylum-seeker which does not appear in the decision, it should grant leave to appeal. If it does not do so, there will be a danger that this country will be in breach of its obligations under the Convention. When we refer to an obvious point we mean a point which has a strong prospect of success if it is argued. Nothing less will do. It follows that leave to appeal for judicial review of a refusal by the tribunal to grant leave to appeal should be granted if the judge is of the opinion that it is properly arguable that a point not raised in the grounds of appeal to the tribunal had a strong prospect of success if leave to appeal were to be granted."
"... the decision in Ladd v Marshall  1 WLR 1489 has as such no place in that context,"
although he then added:
"However, I think that the principles which underlie issue estoppel and the decision in Ladd v Marshall, namely that there must be finality in litigation, are applicable subject always to the discretion of the Court to depart from them if the wider interests of justice so require."