COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE CLARKE
LORD JUSTICE RIX
| 'P' and 'M'
|- and -
|THE SECRETARY OF STATE FOR THE
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr. Rick Scannell (instructed by Paragon Law) for the appellant 'M'
Mr. Steven Kovats (instructed by the Treasury Solicitor) for the Respondent
Crown Copyright ©
Lord Chief Justice:
This is the judgment of the Court:
(a) she was entitled to asylum in this country because she had a well-founded fear of persecution if she were to be returned to Kenya because of the violence that both she and her children had suffered over the years at the hands of her husband; and
(b) for her to be returned to Kenya would contravene section 6 of the Human Rights Act 1998 ("HRA") because her return would contravene Articles 3 and 8 of the ECHR.
The Statutory Rights to Appeal
"(1) … any party to an appeal … to an adjudicator may, if dissatisfied with his determination, appeal to the Immigration Appeal Tribunal.
(2) The Tribunal may affirm the determination or make any other determination which the adjudicator could have made."
It is to be noted that the 1999 Act does not expressly state whether an appeal from an Adjudicator may lie on points of fact. The language of paragraph 22 is in general terms. However, the Immigration and Asylum Appeals (Procedure) Rules 2000 (now superseded by the Immigration and Asylum Appeals Procedure Rules 2003) deal with appeals to Adjudicators and to the IAT. Rule 18(4) provides:
"An application for leave to appeal shall be made by serving upon the Tribunal the appropriate prescribed form, which shall –
(c) identify the alleged errors of fact or law in the adjudicator's determination which would have made a material difference to the outcome, together with all the grounds relied on for the appeal"
And it is common ground that the appeal can be on the facts.
"If the Immigration Appeal Tribunal has made a final determination of an appeal … any party to the appeal may bring a further appeal to the (Court of Appeal) on a question of law material to that determination"
The Subesh Case
a) "The first instance decision is taken to be correct until the contrary is shown" (paragraph 44);
b) The appellant before the IAT, if he is to succeed, "must persuade the appeal court or tribunal not merely that a different view of the facts from that taken below is reasonable and possible, but that there are objective grounds upon which the court ought to conclude that a different view is the right one. … The true distinction is between the case where the appeal court might prefer a different view (perhaps on marginal grounds) and one where it concludes that the process of reasoning and the application of the relevant law, require it to adopt a different view. The burden which an appellant assumes is to show that the case falls within this latter category" (paragraph 44, see also paragraphs 46 and 53);
c) This approach is not a function of jurisdiction but of the principle of finality of litigation (paragraphs 25, 26, 40 and 48);
d) This approach "is not confined to appeals on disputed issues of fact which the judge below has resolved by reference to oral testimony" (paragraph 42);
e) It is a separate point to note that, pragmatically, the IAT (like any appeal court) will give due weight to the advantage that the Court below can be presumed to have obtained from relevant oral testimony (paragraph 41) (see also paragraphs 37 and 46); and
f) The judgment in Subesh should not be read like a statute (paragraph 49).
Hearing and Evidence before the Adjudicator
Reasoning and Decision of the Adjudicator
(a) that the background evidence "shows that the police would not have helped" (paragraph 41);
(b) that P has suffered as "she is a member of a particular social group, women, who are disadvantaged in Kenyan society because of their position in society" (paragraph 42);
(c) "the central core of the Appellant's account, I consider that she has suffered ill-treatment to amount to torture through the constant violence shown to her by her husband, including the threats made to her and her children in the gun incident and I consider there is real likelihood she would suffer such ill-treatment were she to be returned to Kenya" (paragraph 43); and
(d) "that there is a real likelihood or a real risk that the Appellant would suffer ill-treatment which would amount to more than a minimal level of severity were she to be returned to Kenya" (paragraph 46).
Hearing and Evidence before the IAT
Reasoning and Decision of the IAT
i) "In summary, the treatment does not cross the threshold to engage Article 3; even if it did, the respondent has not established that she would be unable to obtain protection from the Kenyan authorities and, finally, the respondent has not established that it would be unduly harsh to expect her to relocate elsewhere in Kenya.
ii) As to Article 8 of the ECHR, it is now well established as a result of Ullah  EWCA Civ 1856 and, more recently, Razgar  EWCA Civ 840, that Article 8 does not have extra territorial effect when looking at risks in the receiving country in relation to a person who has been removed from the United Kingdom."
Task and Role of the IAT
Decision of the Adjudicator
Decision of the IAT
Submissions on behalf of the Secretary of State
Our Decision on Remittal