England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL

		Royal Courts of Justice Strand London, WC2 Friday, 15th November 2002

1. LORD JUSTICE KAY: This is an application for permission to appeal against the decision of the Immigration Appeal Tribunal. The applicant is a Sri Lankan citizen who came to this country in March 2001. He sought asylum. His application for asylum was refused. He then appealed to an adjudicator. The adjudicator considered the matter, and in a reasoned determination concluded that the basis of the application was not made out. In part, that conclusion was based upon his finding as to credibility. One of the areas in which the adjudicator expressed doubt related to the fact that, having been detained for some 13 months, the applicant was able to cross the country, go to Colombo and get on a aeroplane by using a false passport but with no ID card, his card having been taken from him during the course of his detention. The adjudicator concluded that he would not have been able to do that.
2. Mr Lewis on behalf of the applicant attacks those findings of fact, as he did before the Tribunal, contending that they were not justified on the evidence. The Tribunal rejected that contention. The appeal is based upon that matter.
3. The first problem that faces the applicant in relation to it is that these are findings of fact, but Mr Lewis argues that they are critical findings of fact, critical to the conclusions reached by the adjudicator and, as such, take on a significance that is greater than mere findings of fact. He argues that the very basis of the decision was founded on these conclusions. He submits in those circumstances that the defect of the adjudicator, repeated by the Tribunal, was such as to amount to an error of law and therefore ought to be considered by this court.
4. The matter came on the papers before Buxton LJ, who said about the case that:

"The issues are now said to be two factual errors made by the adjudicator, and the failure of the Immigration Appeal Tribunal to identify such errors. To categorise those as errors of law would require something considerably more extreme than is demonstrated here."

Mr Lewis argues that that is not right, and I have reached the conclusion that his argument is at least one that can properly be advanced and ought to be considered by the court. Buxton LJ went on to say:

"In relation to the checkpoints on the journey, what he was unable to accept was that an ID card would have been validly substituted by a passport bearing another name. It was in the latter context that he expressed expectation that an ID card would have been required at the airport, which was in any event an assumption open to him on the evidence."

With every respect to Buxton LJ, I am not entirely sure what he meant by that passage in those brief reasons. I do not see how a passport, which carried a true photograph but had a false name, was, on the evidence, any less likely to persuade those at a checkpoint to let him through than a valid passport, provided the forgery was of a sufficient quality. As we understand the adjudicator, he was concluding that a passport would not in itself have been sufficient and that an ID card would have been required whether or not a passport was presented. We think therefore that the point remains arguable.

5. Buxton LJ went on:

"It was in the latter context that he expressed expectation that an ID card would have been required at the airport, which was in any event an assumption open to him on the evidence."

I think that there is an argument that that conclusion is not justified by the evidence and that it ought to be considered by the full court.

6. The matter that has troubled me most is the final paragraph of Buxton LJ's reasons. He said this:

"Further, the adjudicator goes on in para 59, which is part of his adjudication specifically upheld by the IAT, to explain why he holds that in current circumstances the applicant would not be at risk on return. Those conclusions are specifically stated not to be dependent on findings in relation to the claims of past ill-treatment, and are not challenged in this application. Even if permission were to be granted on the grounds relied on, I do not see that that could affect the outcome of the determination."

That view of Buxton LJ coincided with my view on reading these papers, and it seemed to me that there was an insurmountable hurdle that ought to prevent the court from giving permission. However, Mr Lewis has helpfully drawn our attention to a passage in the Immigration Appeal Tribunal's determination and reasons. In the course of that passage, the Tribunal referred to the fact that the applicant had been briefly detained once. It seems to me that in making their assessment, which had to be an independent assessment, the matters contained in paragraph 59, there is at least an argument that their assessing the situation was flawed by their conclusion that the only detention was for a brief period. It is right that the adjudicator expressed some doubts about the applicant's version of the facts and his general credibility, but nowhere did he come to any conclusion, as I see it, that would have justified the Immigration Appeal Tribunal in describing the detention, which was for 13-months, as being a brief detention.

7. In those circumstances, it may be that, if the applicant can persuade the court of the matters upon which he relies, paragraph 59 will not present the insurmountable hurdle that Buxton LJ anticipated, and which I anticipated before hearing Mr Lewis. In those circumstances, without holding out any great hope that this appeal will succeed, I think that there is sufficient for the court to look at, and accordingly I would grant permission.
8. LADY JUSTICE ARDEN: I agree.
Order: Application for permission to appeal allowed.