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Cite as: [2001] EWCA Civ 1365, [2002] Imm AR 240

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JISCBAILII_CASE_IMMIGRATION

		Neutral Citation Number: [2001] EWCA Civ 1365
		C/2001/1250

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 WC2A 2LL
Tuesday 21 August 2001

B e f o r e :

LORD JUSTICE ALDOUS
LORD JUSTICE ROBERT WALKER
LORD JUSTICE SEDLEY
____________________

	FELIPE JIMINEZ RAMIREZ
	Claimant/Applicant
	- v -
	THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
	Defendant/Respondent

____________________

(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 020 7421 4040 Fax: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

MR K OWUSU (Instructed by Messrs Blavo & Co, London, WC1X ONG) appeared on behalf of the Appellant
MISS J RICHARDS (Instructed by The Treasury Solicitor, London, SW1H 9JS) appeared on behalf of the Respondent
____________________

HTML VERSION OF JUDGMENT
____________________

LORD JUSTICE ALDOUS: I will invite Lord Justice Sedley to give the first judgment.

LORD JUSTICE SEDLEY:The applicant, Felipe Ramirez, came to this country from Colombia in January 1991, together with his mother and sisters, when he was not quite 15 years old. His father joined them shortly afterwards. Like many Colombians, they were fleeing in what was probably genuine terror from the lawless violence of both left wing guerillas and right wing death squads.

Their asylum claims, which at that stage included the applicant as a dependant child, were refused. The refusals were upheld on appeal. Although we have not seen the decisions, it is highly probable that the main ground of refusal was that, as in the great majority of Colombian asylum claims, the persecution, albeit justifiably feared, was not on account of any of the reasons specified in the 1951 Convention, that is to say race, religion, nationality, political opinion or membership of a particular social group.

In consequence of these events, in 1997 the applicant's father was removed to Colombia. The family have not heard from him since his return and it is not known whether he is alive or dead. It would appear that the mother and sisters have remained in the United Kingdom without, as far as is known, formal leave but equally without any endeavour on the part of the Home Office to remove them. If that impression is correct, it is entirely understandable in the light of the evidence about the situation that may now await these people if they were returned to Colombia.

Meanwhile the applicant had begun to suffer from mental illness. In 1996, now aged 20, he was arrested for indecent assault on a 6-year old girl. In June 1997 he was sentenced to three years' imprisonment with a recommendation for deportation. The Home Secretary has now acted in accordance with the recommendation by making a deportation order.

Since the completion of his prison term the applicant has been compulsorily detained in Springfield Mental Hospital. He has not been deported because of these proceedings, but it appears that the Home Secretary, subject to what I am about to say, proposes (if not prevented from doing so) to deport him notwithstanding his mental condition and the apparent absence of anyone in Colombia to look after him.

On 21 December 1998, about eight weeks after being served with the notice of deportation, the applicant applied in his own right for asylum. In May 1999 the Home Secretary, treating the application as including an application to revoke the deportation order, refused both. The applicant appealed to a special adjudicator. The initial hearing, fixed for 21 July 1999, was adjourned five times for reasons both of unpreparedness on the part of the applicant's solicitors and of the applicant's own uncertain mental health. Finally, on 17 April 2000, the special adjudicator, Mr Molloy, refused any further adjournment and heard the appeal. The applicant was absent but his counsel, Mr Slevin, was present. The appeal was dismissed and the adjudicator declined to make any recommendation of leniency.

The special adjudicator's written decision has a number of peculiarities. It is discursive, almost, it seems to me, to the point of eccentricity. It poses an entirely inapposite issue:

"The question really is whether the effects of the paramilitaries and what they did in Colombia could be classified as torture. This means treatment having a serious mental or physical effect upon the individual."

A little later he says:

"The issue is whether events in Colombia caused the problems and if so it is then straightforward to say he has a well-founded fear of persecution."

The decision notes, but fails to answer, the fundamental question whether the persecution of which a well-founded fear was asserted was on account of one of the specified Convention reasons. The decision expressly sets on one side the written record of the applicant's asylum interview and his witness statement on the ground of the condition from which he was suffering which, according to the medical evidence, was that his attention span was short and that he suffered intermittent delusions. The decision accepts unequivocally the mother's evidence about the applicant's earlier history and circumstances in Colombia, but concludes that, because of his mental condition, the applicant is incapable of experiencing any consequential fear. The special adjudicator also, and equally dubiously in my view, concludes that the applicant would no longer be of interest to the elements who had been menacing him or his family at an earlier date. I say "dubiously" because it is not clear why that conclusion was reached, legitimate though it might have been on analysis. Not surprisingly, leave to appeal to the IAT was granted by its Vice President.

The appeal was heard by the Deputy President, Mr Ockelton, Judge Harris and Mr Baines, on 15 August 2000. Their decision was issued on 6 October. They held that the special adjudicator had been quite wrong to conclude that the applicant was incapable of feeling the fear necessary to make him a refugee. They pointed out that such a narrowly literal approach to the Convention would rob many children of its protection. However, the IAT considered the error not to have been fatal because the evidence of the applicant's mother, which the special adjudicator had accepted, filled in the relevant background.

After dealing with further reasons for concluding that the error was not fatal (I will turn to the material ones) the IAT said at paragraph 20:

"For the reasons given by the Adjudicator and explored in the preceding paragraphs of this determination, the Appellant has not established that he is a refugee."

I would have thought that the special adjudicator's reasoning deserved rather sharper criticism than this.

The IAT does not address his refusal to consider the applicant's written interview record and witness statement. When one looks at these documents they are coherent and intelligible. They shed light on the case, albeit not necessarily the light that the applicant wished. In the light of the medical evidence about the applicant's bipolar affective disorder, such documents would, of course, have to be read with caution. There will, no doubt, be cases where, with or without medical evidence, the records themselves display forms of incoherence or delusion which make for very little evidential value. This was not such a case and the applicant should not have been disregarded as a witness on his own behalf on grounds as exiguous as those which the special adjudicator had put forward. Like all other testimony in these cases, his statements were evidence for what, on a fair and objective appraisal, they were worth.

In my view, it is also a ground of criticism of the special adjudicator that he had posed for himself an irrelevant question and had failed to address what was, arguably, the most relevant one, namely, the reasons for the feared persecution. When the Immigration Appeal Tribunal itself turned to this question it said in paragraph 18:

"We asked Mr Slevin to address us on the Convention reason for the Appellant's claimed fear. He pointed us to the Appellant's mother's statement. We have to say that in our view there is not, there or in any other part of the evidence, any reason to suppose that, in the general lawlessness of Colombia, the difficulties suffered by the Appellant's family were persecution for a Convention reason. There would, we think, be no evidential base for a conclusion that the Appellant was a refugee in 1991 even if that were relevant."

The reference back to 1991 was in deference to a plainly misconceived argument about the relevant date that had been advanced on the applicant's behalf. The material date was the date of the adjudication.

On all the grounds advanced before it, the IAT dismissed the appellant's appeal. The principal ground had been that the special adjudicator was wrong to hear out the appeal in the applicant's absence. The IAT refused permission to appeal to this court.

On 6 June 2001, many months after the expiry of the time limited for seeking permission to appeal and very generously acting pro bono, the applicant's solicitors and new counsel applied to this court for an enlargement of time and permission to appeal, together with leave to adduce fresh evidence. The latter would be designed to show a Convention reason for the anticipated persecution. Schiemann LJ, having considered the application on the papers, directed that it be adjourned into open court with appeal to follow if permission were granted. He added by way of reasons:

"1. There is a degree of urgency yet the additional evidence and its nature has not yet been identified.

2. The application raises difficult questions relating to (a) the treatment of applications for asylum by persons suffering from mental illness (b) the interelation of claims for refugee status and claims in relation to potential breaches of the Human Rights Act (c) the relevance of procedural time bars to persons having such claims."

Mr Owusu, whose presentation of his case has been the more admirable because of a misunderstanding of the listing position which left him with little time for preparation, has advanced the following five main points. I take them from his skeleton argument, although he has addressed them in a somewhat different order:

(a) The special adjudicator's decision was so flawed that it should have been set aside without more.

(b) The decision was, in any event, vitiated by the failure to let the applicant attend and be heard, or at least to ascertain when he would be available.

(c)There was, or now is, evidence of well-founded fear on the applicant's part of persecution for a Convention reason which, in the nature of things, has not been adequately addressed either by the special adjudicator or the IAT.

(d) Irrespective of the Geneva Convention, to return the applicant to Colombia would violate his right to life under Article 2 of the European Convention on Human Rights and his right not to be subjected to inhuman or degrading treatment under Article 3.

(e) Time should be enlarged and fresh evidence admitted to enable justice to be done.

I will deal those issues in the same order.

(a) While I agree that the special adjudicator's decision was quite seriously flawed in the sense that it does not simply contain errors but betrays a wrong approach to at least two central issues, I do not agree that a new hearing was the IAT's only option. It was only if the ground to which I shall turn next, adjournment, was a sound ground that this might have been the case. Even then there might have been, in this particular case, no point in remission, if there could only be on the evidence a negative answer to the critical question whether a Convention reason for the feared persecution had been established.

Mr Owusu has submitted that the applicant may be able to show that the persecution he justifiably fears is persecution either on account of his membership of a social group, namely his family, or of the political opinions imputed to him by his persecutors. For the first of these propositions he relies on the decision of the House of Lords in Shah v Secretary of State for the Home Department and [1999] 2 AC 629. For the second he relies upon dicta in the case of Emilia Gomez v Secretary of State for the Home Department [2000] INLR 549, an impressively reasoned decision of the Immigration Appeal Tribunal.

While it may well be right that both categories are flexible enough to admit of continuing argument about their limits and perhaps a movement of their boundaries, the evidence before the special adjudicator and the IAT came nowhere near bringing the applicant within even a generous version of either class. Nor, in the absence even today of any tendered fresh evidence, is there material upon which this court could be satisfied that a different conclusion might now be reached.

The family members who, on the mother's evidence, have lost their lives, appear to have been targeted for reasons not obviously connected with their family membership. Even the generous concept of imputed political opinion mentioned by the IAT in Gomez falls short of any legitimate view of the reasons which the terrorist may have had for targeting a boy who, before he was even as old as 15, was helping younger children learn to read - for it is this that is the essential basis of the fear that is now referred to.

In those circumstances, it seems to me that the first ground will not stand up.

(b) The second ground relates to the refusal of an adjournment. As the IAT point out, the procedure rules expressly permit a hearing to proceed in the absence of an appellant who is suffering from mental disorder, although they also treat professional representation as negativing absence, as in this case.

Neither under the rules nor at common law has anyone a right to an adjournment on demand. I readily accept that there will be cases, and several are reported, where justice plainly requires an adjournment and where a refusal to adjourn may well vitiate the outcome. In such cases the test of necessity in the Rules is met because a step without which justice cannot be done is ordinarily a necessary step. I do not accept, and it seems to me unarguable, that justice will demand indefinite adjournments in any case where an applicant wishes, no doubt for good reason, to exercise his right to be present and give evidence but is prevented by mental illness from doing so. The only rule seems to me to be that there is no rule. In each case the nature of the condition, its prognosis, the nature of the applicant's case and the scope of the evidence which both will and will not be available if he is absent, will all be relevant to the conscientious judgment the special adjudicator must make as to whether justice calls for an adjournment. In particular, a relevant question has to be when, if ever, the applicant is likely to be able to attend if an adjournment is granted. This was specifically asked by the special adjudicator and counsel then appearing for the applicant was unable to give him an answer to it. Indeed, we still have no answer to the question.

In these circumstances, like the Immigration Appeal Tribunal, I see no arguable error in the special adjudicator's approach to the question of what would have been a sixth adjournment of the hearing. Even if the issue is regarded not as one primarily for the adjudicator, but as one de novo for the court (and there is authority to support that view) my view would be exactly the same.

The mistake which the special adjudicator made, as I have said, was to proceed from this point to treat everything that the applicant had placed on record on his own behalf as evidentially worthless. I take this into account in what follows. I accept Mr Owusu's submission that a fresh hearing would probably have been the only solution if an adjournment had been improperly refused by the adjudicator. But, in my judgment, it had not been and the contrary is not realistically arguable.

(c) It is conceded by Mr Owusu that if he is to make good the major lacuna in the applicant's case, the Convention reason, he needs not only permission to appeal out of time but permission to adduce further evidence of the situation in Colombia. I do not think he is entitled to this.

The applicant has, in effect, had two successive asylum applications fully entertained. He has had professional representation in both. It was his lawyers' task to bring the whole case forward, including the available documentation about the situation in Colombia. If we were now to look at such material, it could only be with a view to sending the whole case back to a special adjudicator for we could not grant asylum ourselves. None of this material can be shown to have been unavailable at the time of the hearings since even now neither Mr Owusu, nor therefore we, know what it is. It cannot be right to admit such evidence at large.

The question of enforced return raises humanitarian issues which fall outside the Geneva Convention. I have given my reasons for so concluding.

This brings me under head (d) to the main issue in this case. It relates to the deportation of an offender who might otherwise, and notwithstanding the failure of his asylum claim, have been allowed to remain here with his mother and sisters and be treated for his mental disorder rather than be sent back to a strife-torn country where he would apparently be a stranger without means, family or friends.

As to this element of the case, it is sufficient to repeat what Miss Richards, for the Secretary of State, has spelt out in paragraphs 14 to 16 of her skeleton argument:

"14. The Appellant now seeks to raise arguments based upon the contention that the removal to Colombia would breach various Convention rights (Articles, 2, 3, 8 and 14). He cannot, however, raise those arguments within the framework of his existing asylum appeal. S65 of the Immigration and Asylum Act 1999, which creates a statutory right of appeal on human rights grounds to the Immigration Appellate Authority, does not apply in respect of decisions of the Secretary of State taken prior to 2 October 2000; see the Immigration and Asylum Act 1999 (Commencement No 6 Transitional and Consequential Provisions) Order 2000 SI 2000/2444, schedule 2 para 1(7) of the 1999 Act and the decision of the Immigration Appeal Tribunal (chaired by Mr Justice Collins) in Pardeepan v Secretary of State for the Home Department dated 6 October 2000 ('The result of the Commencement Order and the provisions which we have just cited seems to us clear beyond doubt. They prevent the Tribunal from considering human rights issues in any existing appeal, because sub-section 3 of Section 65 cannot be relied on in relation to decisions made before 2 October 2000').

15. However, in Pardeepan the SSHD indicated that those whose appeals were refused on asylum grounds could raise before the SSHD human rights objections to removal. Those objections will fall to be considered by the SSHD and if dissatisfied the individual may then be able to exercise a statutory right of appeal under s65 to the Immigration Appellate Authority.

16. If the Appellant wishes to argue that his removal to Colombia would breach his Convention rights because (for example) he will not be able to get medical treatment for his condition in Colombia or because he may be separated from his family, the correct course is for him to set out those objections in writing to the SSHD. If the SSHD does not accept that removal would breach the Appellant's Convention rights, then the Appellant may be able to appeal to the IAA under s65 of the Act, if he falls within the terms of the Pardeepan assurance, or may be able to challenge the decision of the SSHD by way of judicial review."

The undertaking there referred to, which can be read in full in Pardeepan, has since been modified, but not so as to exclude somebody in the applicant's position. Miss Richards, speaking on instructions, has confirmed to us that that is so, so that the "if" in the final sentence of paragraph 16 of her skeleton argument ceases to represent a condition and becomes a fact.

I do not consider that Mr Owusu can raise a new case by asserting that this court, as a section 6 public authority, is independently obliged to enforce the Convention rights. Section 6 does not go this distance, not least because Parliament has constituted this court with an appellate and not an original jurisdiction. Mr Owusu has not been able to indicate any solid ground on which the IAT's decision in Pardeepan might be overset by this court. It seems to me that Miss Richards' argument on this part of the case is plainly correct.

It follows that the real human rights issues, those under Articles 2 and 3 and possibly others which I have not considered, will not go unaddressed. Now that the Human Rights Act is in force, the Home Secretary's undertaking, though qualified subsequently, is accepted as covering the applicant.

Turning to point (e) it seems to me that it is unnecessary, in the circumstances I have now described, to analyse the explanation given in his statement of truth by the applicant's solicitor, Mr Drayton, for the delay in making this application or, therefore, to evaluate those reasons. Such problems are notoriously difficult in cases which on the one hand may involve serious and sometimes inexcusable delay, but on the other hand may involve the jeopardising of fundamental rights of individuals who have had little practical control of events. In this case, even if there were a good case for enlarging time, for the reasons I have given, enlargement would not enable a viable case to be mounted, and that is the important factor.

I would add that this applicant is in an unusual situation because the Home Secretary has already considered with care whether to deport him as an offender and has decided, notwithstanding representations to the contrary, to do so. That decision, however, was taken at a date when the ink of the Human Rights Act 1998 was still not dry on the statute book and long before its entry into force. While I do not for a moment doubt that the United Kingdom's longstanding treaty obligation to observe the Convention was borne well in mind, it seems to me elementary that if and when, pursuant to the Pardeepan undertaking, consideration is now given to the implementation or non implementation of the deportation order, a genuinely fresh look must be taken at the case.

On the one hand the applicant will still be a schedule 1 offender whom, other things being equal, it is considered right to deport. On the other hand, there is, or may well be, influential evidence about his mental state, his family and the situation in Colombia posing sharply the question where the Home Secretary, who is undoubtedly a public authority within section 6 of the Human Rights Act, can or properly ought to expose the applicant to treatment which may be inhuman and might also be placing his life at risk.

Within these questions others may arise, for example as to the extent to which the applicant's offending is itself the product of his mental state, and the extent to which his mental state is itself the product of his childhood experiences.

In spite of the difficulties of representation which have bedevilled this case up to now, Mr Owusu's candid acknowledgement of the errors made by those instructing him give good reason to hope that by then the Home Secretary will have the material he needs to decide this difficult and anxious application.

In all the circumstances, however, I would neither enlarge time nor, therefore, grant permission to appeal.

LORD JUSTICE ROBERT WALKER: I agree.

LORD JUSTICE ALDOUS: I also agree.

Order: Permission to appeal refused. Detailed assessment of applicant's costs. Transcript of judgment to be made available to applicant's solicitors at public expense.

(Order does not form part of approved judgment)