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
		20th March 2000

1. SIR CHRISTOPHER STAUGHTON: Jean-Luc Konan comes from the the Ivory Coast; or rather he came from the Ivory Coast in December 1995 and has remained here ever since, apart from two short excursions which I shall mention. He will be aged 33 next month. Shortly after his arrival in this country, he claimed asylum as a dependent of his wife. Her claim was rejected by the Secretary of State, and he then made a claim in July 1996 for asylum in his own right. So he was asserting that he had a well-founded fear of persecution if he returned to the Ivory Coast. The present appeal, by leave of the Immigration Appeal Tribunal, is against a decision of that tribunal rejecting an appeal of Mr Konan against a decision of the special adjudicator who, in turn, had dismissed his appeal from a decision of the Secretary of State refusing his claim for asylum.
2. I set out very briefly the procedural history. This passage comes from the Immigration Appeal Tribunal's decision:

"The appellant left the Ivory Coast on about 19th November 1995 arriving in France on the 9th December 1995. On the following day he travelled on to the United Kingdom. The appellant initially sought asylum as the dependent of his wife, Rose Tano, but later claimed asylum in his own right. This application was rejected in October 1996 and an appeal heard jointly with his wife's appeal was dismissed on the 4th April 1997. An application for leave to appeal to the Tribunal was refused on 27th June 1997.

On 12th September 1997 the appellant was removed to Portugal en route to the Ivory Coast. He applied for asylum in Lisbon but was returned to the United Kingdom by the Portuguese authorities. He made a further claim for asylum which was rejected on the 7th November 1997, his appeal against this decision being dismissed in January 1998. On 9th March 1988 the appellant was removed to the Ivory Coast but was refused entry because it appears that the Ivory Coast officials took the view that he was a Nigerian. He was returned to the United Kingdom and applied for asylum yet again. On 28th March 1998 this application was refused and his appeal against this decision was heard by Miss Cheales at Birmingham on 9th March 1999.

His claim is that he was prominent in the active boycott of the elections of 1995 organised by the FPI [in English those initials stand for the Ivorian Popular Front] and was detained and tortured several times before his escape. He asserts that he is of adverse interest to the authorities because of the activities of his wife who was formerly a FESCI coordinator for the eastern zone and because of his attempts to expose the killing of her father in prison by the Ivorian authorities."

3. That was the history of the matter when the case came to the Immigration Appeal Tribunal in July 1999. Three special adjudicators had rejected the claim on separate occasions. On this occasion the Immigration Appeal Tribunal, unlike the previous tribunal, accepted that the appellant had been maltreated by the police for political reasons in 1995 when he first left the Ivory Coast. There was medical evidence of scars which were consistent with torture, and there were other witnesses supporting Mr Konan's evidence. It was on the basis of that further evidence that the Immigration Appeal Tribunal on this occasion found that there was a well-founded fear of persecution for a Convention reason when Mr Konan left the Ivory Coast in 1995. But they went on to find that he did not in 1999 still have a well-founded fear of persecution for a Convention reason, because the situation in the Ivory Coast had changed. The way they put it was as follows:

"In the Tribunal's view this further evidence does affect the assessment of the credibility of the account given by the appellant. It corroborates his account of political involvement with the FPI and a number of the scarrings are consistent with the account he has given of the way he was treated when arrested. In our view the Special Adjudicator has failed to give adequate weight to this additional evidence and looking at the evidence as a whole the Tribunal take the view that there is a reasonable degree of likelihood that the account that the appellant has given is correct.

However, the Tribunal must go on to assess whether in the light of what has happened to the appellant in the past he now has a well founded fear of persecution for a Convention reason were he to return to Ivory Coast."

4. Then, missing out a passage, I continue:

". . . it is clear that a number of people were arrested in connection with the active boycott and the government also established a committee to investigate deaths which had occurred during the disturbances at that time. In the US State Department Report 1998 [this apparently was released by the Bureau of Democracy, Human Rights and Labor in 1999] it is recorded that in December 1998 the Cote d'Ivoire Government granted amnesty for all offences committed by all persons in connection with the active boycott of the 1995 election. 33 people who were serving prison terms were released on 24 December 1998. An estimated 450 people had originally been arrested following these disturbances but none were known to remain in custody at the end of 1998.

This Report records that the Government's human rights record has been characterised by serious problems and abuses in a number of areas but the Government have released all known political prisoners and detainees. There are no reports of politically motivated killings by Government forces although there were reports of security forces resorting to extra judicial killings in the face of a violent crime wave. There are no reports of politically motivated disappearances. As part of the accord in which the amnesty was granted, the President has agreed to renounce some of the powers conferred on him which have been used to maintain PDCI control of the Presidency and National Assembly."

5. So the picture painted is one of a change of heart by the government of the Ivory Coast - no more political prisoners or detainees, no more politically-motivated killings by government forces - and therefore it is said that one should draw the conclusion that, were Mr Konan to return to the Ivory Coast, he would not face persecution in respect of what he had been doing in 1995.
6. Mr Taghavi, who appears today for Mr Konan, attacks that conclusion in effect on three grounds, one of which is in our view a matter of substance, the other two of which can be considered quite briefly. The first ground related to the amnesty granted in December 1998, which the Tribunal evidently relied on. The text of that amnesty, in so far as we have it is taken from this passage in the United States Department of State Country Report on human right practices for 1998 in the Ivory Coast. It says:

"Ten persons arrested in connection with the active boycott of the 1995 presidential campaign were still in prison and awaiting trial, and more than 100 more were on provisional liberty but awaiting trial on charges related to the active boycott, when, in December, the Government enacted a law granting amnesty to all persons convicted or charged in connection with that incident. An estimated 450 such persons originally were arrested. None was known to remain in custody at [the] year's end."

7. It is said that the amnesty related only to persons convicted or persons charged and that, as Mr Konan has not been either convicted or charged, it did not apply to him. It is also said that the amnesty applied only to members of another body and not to the Ivorian Popular Front. So it is said that the Tribunal was wrong in fact to pay regard to the amnesty. For my part I do not find that a convincing argument. If those who were convicted or charged were to be granted an amnesty, it would seem reasonably good sense to conclude that those who had not been convicted or charged, but had been displeasing the government, would have the benefit of the amnesty as well.
8. The second ground is the one of substance. It is said, correctly, that the Secretary of State had disclosed, for the purposes of the hearing before the Immigration Appeal Tribunal, his country report for 1998 but not the country report for March 1999, nor the up-date of the latter in June 1999. So, even though, as Mr Taghavi conceded, there was no flaw in the way the Tribunal acted on the evidence before it, one must consider whether things would or might have been different if the 1999 material - and, particularly, the up-date of June 1999 - had been made available - as, he submits, it should have been.
9. What would that material show, had it been available? The sources attached to the up-date contain, amongst other things, this passage from a newspaper report:
10. "The Student Federation of Cote d'Ivoire, which draws membership from all schools and universities in the country, last week called off a nationwide boycott of classes started 20 April after being promised by the government that all their grievances would be examined and solutions found to them. The federation, in a 12-point list of demands, asked the government to release hundreds of its members arrested during demonstrations in April, build more university hall of residence, ban entry examinations to higher educational institutions and the generalisation of scholarships. But the government went down on its promise last week jailing six of the arrested students for five years each with hard labour. They are denied appeal and ordered to pay a total fine of 15 million francs."
11. That was a newspaper report of 28th May 1999. The Reuter report for the same day refers to student strikes and said that they had degenerated into attacks and looting in late April and early May:

"The government at one stage closed secondary schools but they reopened this week after the government addressed student grievances."

12. The federation referred to in the newspaper report is the student union body abbreviated as FESCI.
13. The up-date of the country report, which summarised that source material, has these passages:

"30th April

The government warned striking students that leaders of a disruptive class boycott could be put on trial. A government statement issued after a cabinet meeting banned university student leaders from organising any protest activities in elementary or secondary schools. Secondary schools resumed classes but the university in Abidjan remained closed due to the teachers' strike. Ble Goude called for FESCI members to resume classes following the 72-hour boycott. A statement issued by the striking teachers urged their members to resume classes from Monday 3rd May.

2nd May

President Henri Konan Bedie told campaigning students that if they break the law they must face the consequences of their acts, with no hope of clemency.

5th May

FESCI today called a strike in defiance of the government ban of its activities in schools. The strike was intended to halt classes in secondary schools and colleges on 6th and 7th May. It said that if the government did not respond it would call a one-week nation-wide strike in schools and universities from 11th May. The government banned the activities of FESCI, which is close to the opposition Ivorian Popular Front, from schools and colleges on 30th April.

6th May

The government ordered the indefinite closure of all public and private pre-school, primary, secondary and vocational schools in the two main cities of Abidjan and Bouake, to stem mounting student unrest and protect younger school children. The FESCI called strike in primary, secondary schools and universities appeared to be heeded in Abidjan."

14. Then it goes on to say:

"13th May

The government told FESCI that it was going beyond the bounds of legitimate union activity and issued a veiled warning that it risked being banned. FESCI called a strike from 12th until 16th . . .

14th May

At its general assembly held at the Cocody university on 11th the FESCI rejected the governments offer to continue the ongoing consultations at the level of school officials and ministers in charge of education. FESCI decided to continue the indefinite strike it had launched. The government once again called on FESCI to reconsider its stand because it might turn them into an outlawed organisation.

26th May

Students reportedly burnt some vehicles at the University of Bouake, in protest against the arrest and detention of some of their leaders for holding meetings. Reports stated that students went further by extending the protest to the town centre where public and private properties were reported to have been pillaged and damaged . . .

27th May

The police, wielding batons and tear gas, dispersed 100 students on their way to a news conference of the FESCI at the Cocody campus. The news conference was scheduled after 5 university students and 1 high school student were sentenced to five years' imprisonment with hard labour and fined . . . about $2,4000 on 21st May for disrupting law and order."

15. So there one has a picture of student unrest leading to active protest, and a very firm reaction by the government with severe sentences passed on six of the students and hundreds detained. This, it is said, casts doubt on the Tribunal's picture of reform and improvement of human rights in the Ivory Coast.
16. The Tribunal knew something of these matters because they were referred to them by counsel for Mr Konan. They said:

"Evidence has been produced of strike action by students and pupils in April and May 1999. These appear to be in protest against the Government's poor education policies and are co-ordinated by FESCI. The Government has ordered the indefinite closure of all schools but it appears that student protest has continued.

The fact remains that the FPI currently holds 13 seats in the National Assembly. FESCI is a legal body. It had been banned in June 1991 but this decree was rescinded in late 1997. The summons [against Mr Konan] produced on behalf of the appellant is dated January 1998. There is no indication of why the police wish to see the appellant. As he left the Ivory Coast in November 1995 it can really only be as a result of his participation and support for the active boycott, but an amnesty has now been issued.

In the Tribunal's view, the appellant's activities on behalf of FPI would not now put him at risk of persecution in the Ivory Coast. His association with his wife who is said to have been active as a member of FESCI would not put him at risk as FESCI's activities are now legal and in any event in the Tribunal's view there is no reason to believe that the appellant would be put at risk because of his wife's activities or perceived activities."

17. It is said that had the Tribunal had the additional evidence in the June up-date of the United Kingdom's country report, it would or might have taken a different view of the improved state of human rights in the Ivory Coast. I can see no ground for supposing that it would have had that effect in relation to matters for which Mr Konan once had a legitimate fear of persecution. There is nothing whatever to show that the Tribunal was wrong in concluding that that fear, in respect of his activities in 1995, was no longer well-founded. What is said is that nevertheless he might be persecuted on the grounds that members of FESCI were now being detained in large numbers. But he himself, as I understand it, was not a member of FESCI. He certainly had not engaged in the activities of students in 1999 in their protests, and I do not see that there is any serious reason for supposing that the Tribunal was wrong to say that he had no well-founded fear of persecution. What the new evidence shows is disruption by students in April and May 1999, which was met very firmly indeed by the government, possibly going beyond the bounds of maintaining law and order.
18. But it is said that the case of ABC and D v Secretary of State for the Home Department, heard on 14th July 1999 and decided at about the time when the Tribunal in this case was deciding Mr Konan's case, shows that the evidence was of vital importance. A, B, C and D were, it seems, prominent leaders of the FESCI movement - we do not know what age they were but no doubt they were no longer students - and the Tribunal in that case allowed the appeal of all of them on the basis that the matters described in the June up-date showed that they had a well-founded fear of persecution. I do not see that what that tribunal decided in relation to those applicants has any relevance to what the present tribunal was required to decide in relation to Mr Konan. He is not a prominent leader of FESCI, nor even a member of it. So I would reject the ground of appeal based on the non-disclosure of the June material. That means that I do not have to say anything about the duty on the Secretary of State to disclose material in an asylum case.
19. The third and last ground of appeal, as I understood it, was based on paragraph 34 of the grounds of appeal to the Court of Appeal, which says:

"Even if (contrary to the Appellant's submissions) the December 1998 amnesty did apply to the Appellant, the Tribunal has nevertheless failed to take into account a relevant consideration, namely, whether the Appellant would, despite the December 1998 amnesty, be persecuted in the future as a result of:

(a)the past interest that the authorities have shown towards him (and his wife), coupled with

(b)his likely future political activities."

20. As to (a), the Tribunal plainly did take into account the question whether he was likely to be persecuted in the future as a result of the past interest which the authorities had shown. As to his likely future political activities, we are told that there was no evidence as to that and, in those circumstances, the Tribunal cannot be reproached for not dealing with that point.
21. In all the circumstances, I would uphold the decision of the Tribunal and dismiss this appeal.
22. LADY JUSTICE HALE: I agree.
23. LORD JUSTICE SIMON BROWN: The principal ground of appeal advanced here is that, although the IAT came to a correct decision on the material before them, they would probably have come to a different conclusion had they known of certain additional material which it is said the Secretary of State could and should have put before them.
24. The additional material on which Mr Taghavi relies is the June 1999 up-date to the Home Office's Ivory Coast country assessment and the reports underlying it; all as described by my Lord. If these documents could indeed have made a sensible difference to the IAT's assessment of the appellant's situation, then I for my part would have been in favour of allowing this appeal. I would have regarded the Secretary of State as having failed in his obligation within Lord Woolf's formulation in R v Special Adjudicator ex parte Kerrouche [1998] INLR 88 at 95, on the footing that the Secretary of State ought to have known that this material substantially detracted from the Home Office's earlier country assessment on which he had relied. Indeed, as Mr Taghavi points out, the Secretary of State's obligation in a full asylum appeal like this may well be higher than in cases like Kerrouche and R v Secretary of State for the Home Department ex parte Abdi and Gawe [1996] 1 WLR 298, cases concerned with safe third country appeals.
25. The argument, however, depends upon the appellant's central contention that this fresh material would have given the lie to some fundamental conclusion reached by the IAT. In common with my Lord, that is not a contention which in the final analysis I find I can accept. Mr Taghavi seeks to rely on the material to show (a) that FESCI supporters are now to be regarded as at risk, and the appellant with them through his wife's association with that body; and, more fundamentally, (b) that the Ivory Coast government are no longer to be regarded as being in a benign phase but rather are shown to have returned to a general mood of political repression such as to put members of any opposition group (including therefore the FPI) at risk.
26. To my mind, however, this material shows no such thing. In reality, it shows no more than a government taking understandably firm action in response to lawless and violent student behaviour which no government could possibly ignore. I too therefore would dismiss this appeal.
ORDER: Appeal dismissed. Legal aid assessment of the applicant's costs.