COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
IMMIGRATION JUDGE COKER
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE CARNWATH
LORD JUSTICE LLOYD
| AA (Uganda)
|- and -
|The Secretary of State for the Home Deparment
Miss Claire Weir (instructed by The Solicitor to Her Majesty's Treasury) for the Respondent
Hearing dates : 10 April 2008
Crown Copyright ©
Lord Justice Buxton :
i) AA was born in 1986 in Northern Uganda. Her father, who had been in the Ugandan Army, was beaten to death in about 1990, and her mother was killed some two years later, at the hands of the rebel Lord's Resistance Army.
ii) She was then lived with, successively, two aunts and an uncle, all of whom treated her brutally and abusively. The uncle forced her do housework instead of going to school, and intercepted money sent for her support by an aunt Helen who lived in the United Kingdom.
iii) Travelling on a lawfully issued visa AA was brought to the United Kingdom by Helen on 23 December 2003. She told Helen about the abuse that she had suffered, and Helen stopped sending money to the uncle: who reacted by threatening to kill AA.
iv) While living with Helen in the United Kingdom AA was raped by Helen's husband, and as a result had an abortion in February 2005. She told Helen of the rape in November 2005, but Helen ridiculed her. AA then attempted suicide.
v) The police interviewed Helen and her husband in relation to the rape, AA being the complainant, but did not pursue charges. It should however be emphasised that it was accepted throughout the present procedure that the rape had indeed taken place.
vi) The police arranged for the removal of AA from the household, and she was taken into the residential care of a project for vulnerable young people, where she still lives.
The course of these proceedings
• A COI report on Uganda
• A country expert report on Uganda by a Dr Jennings
• A psychiatric report by Dr Frances Marks FRCPsych written early in 2006
• A psychotherapy report by Miss Julia Britton
• A letter from the pastor of a church in London attended by AA.
The decision-maker, taking account of all relevant circumstances pertaining to the claimant and his country of origin, must decide whether it is reasonable to expect the claimant to relocate or whether it would be unduly harsh to expect him to do so.
Lord Bingham continued:
It is, or should be, evident that the enquiry must be directed to the situation of the particular applicant, whose age, gender, experience, health, skills and family ties may all be very relevant. There is no warrant for excluding, or giving priority to, consideration of the applicant's way of life in the place of persecution. There is no warrant for excluding, or giving priority to, consideration of conditions generally prevailing in the home country.
And Lord Brown of Eaton-under-Haywood with great respect valuably explained some further aspects of the jurisprudence of undue harshness when he said, at §42,
If a significant minority [of persons in the home country] suffer equivalent hardship to that likely to be suffered by a claimant on relocation and if the claimant is as well able to bear it as most, it may well be appropriate to refuse him international protection…..For these respondents, persecution is no longer a risk. Given that they can now safely be returned home, only proof that their lives on return would be quite simply intolerable compared even to the problems and deprivations of so many of their fellow countrymen would entitled them to refugee status. Compassion alone cannot justify the grant of asylum.
Basing itself on those principles, the House held that it had been open to the Asylum and Immigration Tribunal in AH(Sudan) to conclude that it would not be unduly harsh for former subsistence farmers in Darfur to be expelled to Sudan, not back to Darfur but to slum conditions in refugee camps in Khartoum, granted that many other persons had to endure those conditions; and that this court had not been justified in interfering with that decision.
The words "unduly harsh" set the standard that must be met for [relocation] to be regarded as unreasonable. If the claimant can live a relatively normal life there judged by the standards that prevail in the country of his nationality generally, and if he can reach the less hostile part without undue hardship or undue difficulty, it will not be unreasonable to expect him to move there.
The position of unaccompanied women in Kampala
[AA] has almost no chance of getting a formal sector job. First, she has no qualifications or formal training and her chances of improving her educational status in Kampala are nil….Secondly, in East Africa contacts and information are critical in finding jobs….contacts and assistance from relatives and friends can be critical in even getting to the interview stage of a job application. Her only hope will be some sort of self employment in the informal economy. Here she will also be at a disadvantage because she has no informal home training in any sort of activity which might generate an income in the informal sector (trading, cooking food, sewing, embroidery). The only jobs she could hope to obtain would be that of house servant or bargirl or sex worker (and bargirls are just sex workers by another name). Her chances of finding a job as a house servant will be limited. Almost inevitably these are found through contacts via friends and relatives since people are reluctant to bring a total stranger into their domestic circumstances…Sadly there is an unending demand for bar girls/sex workers (the two occupations are usually linked). That would be her best, perhaps her only chance of employment….In this context of high HIV/AIDS infection rates, [AA] will be condemned to dangerous jobs which will put her at risk of abuse, injury and most significantly of all in danger of contracting HIV/AIDS….Suffering from anxiety and depression, [AA] will be plunged into a very difficult, dangerous and unknown environment. In such an African slum many young people who have grown up there are vulnerable to unwanted pregnancies, early marriages, prostitution, drug abuse, crime, and AIDS….How much more daunting and difficult will it prove to this traumatised young woman?
And Dr Nelson said in a "Conclusion" paragraph:
As a young woman with no family or husband to call back on [AA] will be especially vulnerable, a fact confirmed time and again by anthropologists and sociologists working in African cities. With little education, no training and no job experience she will be reduced to working in the informal sector in the slums. The most likely employment option she will be reduced to will be that of sex worker. This will put her at great health risk of contracting HIV/AIDs. She will be unable to find secure and decent housing. She will find it difficult to obtain counselling or medication for her psychological conditions.
I accept Dr Nelson's opinion that individuals in Kampala without access to social or familial networks have great difficulty finding employment and that [AA] would have difficulty finding accommodation without employment and her opportunities for furthering her education would, in the light of that lack of employment be very limited. There are however many young women in that situation.
Miss Weir sought to persuade us that in §38 Immigration Judge Coker was not accepting the most striking of Dr Nelson's conclusions, that effectively what awaited AA in Kampala was a life of prostitution. I cannot agree. If the judge wished to insert that qualification into her general acceptance of Dr Nelson's evidence she undoubtedly would have said so.
Assistance from the church
I note that since 4 December 2005 the appellant has been attending the [name provided] Church as evidence[d] from a letter written by the pastor dated 22 March 2006. I note she has settled into the church very well and has a good network of support. I see no reason why she could not also turn to the church in Uganda for similar support if the need arises.
That was said before us to be one of the findings of fact by Immigration Judge Denson that fell within the agreement as to the conduct of the appeal before Immigration Judge Coker: see §4 above. Immigration Judge Coker picked up the point in §§ 42-44 of her own determination, where she said:
The appellant has been involved in church here in the United Kingdom. The evidence before me indicated that the church in Uganda is active. Although in submissions it was said that the church could not provide the contacts and support that the appellant required there was no evidence that the church was not active in any of the slum or poorer areas of Kampala. Although the appellant's life in Kampala would be difficult and certainly harsher than here in the United Kingdom, I am not satisfied, given her church activity and her belief that she would not be able to find and establish contacts in Kampala that would be of assistance to her…..In Kampala she will have no kinship support but there was no evidence before me that she would not be able to obtain church support.
Undue harshness in the context of conditions in Kampala
The Secretary of State will not make:
(a) a grant of asylum if in part of the country of origin a person would not have a well founded fear of being persecuted, and the person can reasonably be expected to stay in that part of the country; or
(b) a grant of humanitarian protection if in part of the country of return a person would not face a real risk of suffering serious harm, and the person can reasonably be expected to stay in that part of the country.
Both of these statements are entirely general, in that, as is a matter of commonsense, any persecution or serious harm in the place of relocation, even if of a quite different category from that on which the original claim was based, would prevent relocation. In the present case the fate awaiting AA certainly raises the issue of whether she is going to suffer degrading treatment. The AIT, at its §48, rejected a claim under that rubric as it is found in article 3. However, it is not possible to know how far that conclusion, which simply relies, without further explanation, on the facts previously found, depends on assumptions as to church assistance that were not open to Immigration Judge Coker. If I had not decided the appeal on other grounds, I would remit that issue for further consideration.
The particular vulnerability of AA
[AA] has taken GCSEs and is awaiting her results. She will have some, albeit limited, qualifications.
We were told by Mr Morris that in June 2007 Immigration Judge Coker understood that AA was taking two GCSEs, in English and Maths. She failed the first of those, and could not afford the examination fee for the second. Immigration Judge Coker could not of course know of the future failure, but it is very unfortunate that she was not told about the problem with fees. Nevertheless, I have to say that the Immigration Judge Coker was overoptimistic in her approach. It does not follow from the fact that someone is taking an examination that they are going to pass it; and a more circumstantial enquiry was required into the relevance of two GCSEs to any sort of job search in Kampala. And no weight was given to Dr Nelson's view that not just qualifications but also connexions were required to obtain any sort of formal employment.
Because she has had such a deprived life with little effective parenting she is an extremely vulnerable woman who suffers from severe and chronic psychiatric symptoms… She has symptoms of post traumatic stress disorder and probably had an acute stress reaction when she was sexually assaulted…The severity, chronicity and multiplicity of her problems are such that she will not make a spontaneous recovery in spite of the fact that she is a very determined girl and one who shows considerable resilience. She requires a specialist treatment regime from a team experienced in the treatment of adults with post traumatic stress disorder and chronic depression.
Dr Marks then set out the treatment, in terms of medication and counselling, that she thought AA to require, and referred at §92 of her report to WHO reports that indicated that there were unlikely to be any facilities for such treatment in Uganda.
By October there was a sense of [AA] having achieved a functional equilibrium. Whilst she continued to have symptoms consistent with PTSD it felt she was more stable. To go on working with the underlying issues demanded a more secure external world. [AA] and I therefore agreed that she would have less frequent contact with me during this period of uncertainty. I have seen her twice since December and again have been struck by her remarkable resourcefulness and resilience. However, I am in no doubt that she remains extremely vulnerable and will need to return to regular psychological treatment once the issues surrounding her immigration status are resolved. I remain as concerned as before about the risk of psychological deterioration and risk of self-harm should she be returned to Uganda. I believe [AA] to be a young woman with potential for development should she be allowed access to on-going support and psychological treatment within a stable and safe environment.
33. I acknowledge and accept that Ms Britton is an experienced psychotherapist but note that there is no medical evidence other than the psychiatric report prepared by Dr Marks on behalf of the Medical Foundation in early 2006. That report specifically assessed her psychological symptoms. There has been no updated report of similar detail provided since the intense psychotherapy sessions. I would have expected such a report to be produced given Dr Marks analysis of the appellant's psychiatric profile and recommendation of counselling. Although there is reference by Ms Britton (in the new part of her recent report) to the appellant still showing symptoms of PTSD there is no evidence before me that Ms Britton is qualified to diagnose PTSD or on what basis she has reached that conclusion-in marked contrast to the analysis of Dr Marks in the early part of 2006. There is no credible evidence before me that the appellant is at risk of self harm if returned to Uganda; her one previous attempt at self harm in November 2006 arose following the rape here in the United Kingdom; she does not appear to have been receiving any on-going psychiatric treatment and her psychotherapy sessions have reduced significantly to the extent that she has had only two since October 2006.
34. The case of N requires that for there to be a breach of Article 3 there must be 'truly exceptional circumstances' in the appellant's present medical condition. Although Dr Marks made reference to the appellant being a suicide risk in February 2006 the current report by Ms Britton does not refer to a current suicide risk and gives no analysis of her current psychological condition other than in general terms. Bearing in mind the burden and standard of proof, I am not satisfied that the appellant is at current suicide risk whether here in the United Kingdom, en route to Uganda or on arrival in Uganda.
The role of this court
15. As already stated an appeal lies only on a point of law. It is common ground that SIAC is a specialist tribunal. The approach to an appeal from such a body on a point of law has recently been summarised by Baroness Hale in AH (Sudan) v SSHD at :
"30. … This is an expert tribunal charged with administering a complex area of law in challenging circumstances. To paraphrase a view I have expressed about such expert tribunals in another context, the ordinary courts should approach appeals from them with an appropriate degree of caution; it is probable that in understanding and applying the law in their specialised field the tribunal will have got it right: see Cooke v Secretary of State for Social Security  EWCA Civ 734,  3 All ER 279, para 16. They and they alone are the judges of the facts. It is not enough that their decision on those facts may seem harsh to people who have not heard and read the evidence and arguments which they have heard and read. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. Appellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently. I cannot believe that this eminent Tribunal had indeed confused the three tests or neglected to apply the correct relocation test. The structure of their determination can be explained by the fact that this was a "country guidance" case: but that makes it all the more important that the proper approach to the internal relocation alternative, as explained by the House in this case, is followed in future."
It will be noted, relevantly to the task of this court of considering only points of law, that Baroness Hale's guidance as to the limited role of this court extends to decisions by a specialist tribunal on points of law as well as to the lower court's assessment of the facts.
16. All counsel accepted that that passage set out the principle relevant to an appeal to this court from SIAC. This is perhaps not surprising in a case where this appeal has been heard with that in Othman v SSHD and counsel for the respondents in this case are counsel for the appellants in Othman and counsel for the SSHD in both cases are the same, whereas the SSHD is the appellant here but the respondent in Othman. However that may be, counsel were correct to treat  in AH (Sudan) as authoritative guidance in appeals from SIAC, although it was itself an appeal from the AIT. Although counsel suggested various glosses on Baroness Hale's statement, we think, with respect, that the passage is clear and well able to stand for itself.
The present appeal
The Cooke formula
"Each of these grounds for detecting an error of law contain the word 'material' (or 'immaterial'). Errors of law of which it can be said that they would have made no difference to the outcome do not matter…."
Later in the same judgment (paras 92-93), in considering the scope of onward appeals to the Court of Appeal, he referred to the "appropriately modest view of its supervisory role" taken by the court (as illustrated by cases such as Cooke v Secretary of State).
"… the House of Lords in AH (Sudan)  UKHL 49 has stressed that appellate courts should not pick over AIT decisions in a microscopic search for error, and should be prepared to give immigration judges credit for knowing their job even if their written determinations are imperfectly expressed. This is no more than a paraphrase of a decision which, I respectfully think, is intended to lay down no new principle of law (cf, for example, Retarded Children's Aid Society v Day  IRLR 128, §19, per Lord Russell) but to ensure that appellate practice is realistic and not zealous to find fault. Their Lordships do not say, and cannot be taken as meaning, that the standards of decision-making or the principles of judicial scrutiny which govern immigration and asylum adjudication differ from those governing other judicial tribunals, especially when for some asylum-seekers adjudication may literally be a matter of life and death. There is no principle that the worse the apparent error is, the less ready an appellate court should be to find that it has occurred."
"As I see it, the reason why the courts do not interfere with the Commissioners' findings or determinations when they really do involve nothing but questions of fact is not any supposed advantage in the Commissioners of greater experience in the matters of business or any other matters. The reason is simply that by the system that has been set up the Commissioners are the first tribunal to try an appeal, and in the interest of the efficient administration of justice their decisions can only be upset on appeal if they have been positively wrong in law. The Court is not a second opinion where there is a reasonable ground for the first. But there is no reason to make a mystery about the subjects that Commissioners deal with or to invite the courts to impose any exceptional restraint on themselves because they are dealing with cases that arise out of facts found by the Commissioners. Their duty is no more than to examine those facts with a decent respect for the tribunal appealed from and if they think that the only reasonable conclusion on the facts found is inconsistent with the determination come to, to say so without more ado." (pp 38-9, emphasis added)
Lord Justice Lloyd: