England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand London WC2 Monday, 2nd April 2001

Monday, 2nd April 2001

1. LORD JUSTICE WARD: This is an appeal by Mr Patrick Assiimwe against the determination of the Immigration Appeal Tribunal which determination, on the face of it, was apparently made on 15th May 2000, but it also appears on the face of the decision, and this is important for the purposes of this case, that the determination was only notified on 20th July 2000.
2. I can take the essential facts very shortly. Mr Assiimwe is a Ugandan citizen who arrived in this country on 18th November 1993. Four days later he made an application for asylum. His application was refused by the Secretary of State and an appeal to the Special Adjudicator was dismissed in October 1998. The appellant appealed and the matter was remitted to be heard afresh before a new adjudicator, Major General Clarke. He determined the matter on 10th September 1999, being satisfied that the appellant appeared to be a credible witness even though there were minor discrepancies in his evidence, to which he made full reference. He therefore accepted the evidence that Mr Assiimwe was a member of the National Army for the Libration of Uganda, a rebel terrorist group, that he was detained on a number of occasions and suffered ill treatment whilst so detained. He had to bride his way out of prison in Uganda and fled shortly thereafter. The Special Adjudicator found that he was likely to face prosecution in Uganda and that there was a serious possibility that during that process he would suffer persecution. Accordingly he was granted the asylum which he sought.
3. The Secretary of State appealed against that determination, and it was that matter which came before the Immigration Appeal Tribunal at first in about April 2000. The Secretary of State did not pursue the original ground that the Special Adjudicator was wrong in his determination. It was expressly conceded before the Immigration Tribunal, and is conceded again today, that this appellant could properly claim that he suffered a well-founded fear of persecution were he to be returned to Uganda. The point which arose before the Immigration Appeal Tribunal was that by virtue of the Ugandan government enacting an Amnesty Act, any fear that he may have entertained could no longer be justified and would no longer be well-founded. The Amnesty Act was passed by the Ugandan Parliament some time towards the end of 1999. From the evidence before the Immigration Appeal Tribunal, which is undisputed, that Act became law on 17th January 2000 when the President notified his assent to the new enactment.
4. The Immigration Appeal Tribunal adjourned the first hearing and gave the parties the opportunity to put in evidence which would deal with the effect of that Act upon the appellant's position. The Secretary of State received the mild, but no doubt deserved, rebuke from the Immigration Appeal Tribunal that he failed to comply with the directions that were given, and in fact put forward no evidence apart from the evidence which established that this was a lawful act of Parliament to which we had to pay due and proper regard.
5. The appellant, Mr Assiimwe, did put some evidence before the Immigration Appeal Tribunal being the opinion of an accepted academic, Mr Furley who, for reasons expressed in that opinion, remained of the view that Mr Assiimwe would face a serious danger of persecution were he to be returned, because in his view the Act in its actual operation by the security forces would not always be honoured and would not be honoured in the case of this particular applicant.
6. The Immigration Appeal Tribunal allowed the Secretary of State's appeal. In the course of their determination the tribunal said in paragraph 11:

"There is no evidence to suggest that the government of Uganda is not honouring the terms of this act which is of course an act of Parliament binding government officials at every level including of course diplomatic representatives of Uganda abroad. "

7. The Tribunal he went on in paragraph 15 to express the view that they had:

"... no reason at all to doubt the good faith of the government of Uganda in the matter nor any reason whatsoever to doubt that the provisions of the Act will be extended to the Respondent."

8. They rejected the opinion of the expert saying in paragraph 16:

"In the absence of any background evidence at all suggesting this this act is not being honoured by the government and having regard to all the evidence before us including the helpful expert report by Mr Furley we are quite satisfied that this Respondent has no well-founded fear either of prosecution or of persecution were he to be returned to Uganda."

9. Accordingly, they allowed the Secretary of State's appeal and, with leave of Keene LJ, the appellant appeals to this Court.
10. The grounds upon which the appeal would have been launched were that the tribunal failed to apply the evidential burden of proof that lay upon the Secretary of State where a change in circumstances had occurred, the basis for that appeal being the decision of this Court in Mohammed Arif v Secretary of State for the Home Department [1999] INLR 327. The Secretary of State would have wished to have contended in particular that where amnesty is offered the asylum-seeker has to take up that offer or to be judged in the event that he does not do so. There are obviously interesting and important questions which might arise for all of those arguments to be fully entertained and, for my part, I can express no view about them at all.
11. The Secretary of State does however accept that this appeal should be allowed and would seek to persuade us to remit it to the Immigration Appeal Tribunal for rehearing to consider the particular circumstances of this case. The Appellant invites me to restore the Adjudicator's decision. It emerges upon a close look at the papers that the Act provides by section 17:

"This Act will remain in force for a period not exceeding six months and on expiry, the Minister may by statutory instrument extend that period."

12. The Act, having come into force on 17th January, would remain in force only until 16th July 2000 unless the minister had, by statutory instrument, extended that period. Whilst, therefore, the Act may have been in operation at the time of the hearing before the Immigration Appeal Tribunal and even at the date of determination they made, 15th May, by the relevant date which it is agreed to be the date that the determination was notified, 20th July 2000, this Act had on the face of it ceased to operate.
13. It follows that at the time when the decision was given, the Act was on the face of it no longer in force. The tribunal had appreciated that provision because in paragraph 9 of their determination they say this:

"The Act also provides for the establishment of a de-mobilisation and re-settlement team and provision is made for extension of the Act beyond the original period of six months."

14. But Homer appears to have nodded and the tribunal appeared to have failed to note that by the time they notified their decision, the very provision upon which they based their determination had ceased to be effective in law on the face of it.
15. Ms Richards for the Secretary of State was careful enough to see in her preparation for this appeal that there was this difficulty. She made enquiries as to what had happened, and has been informed, and so puts the information to us, that the Ugandan government has extended the operation of the Amnesty Act, as they were entitled to do. But the Secretary of State does not in this appeal seek to introduce fresh evidence to that effect. He has taken no steps properly to place before us any evidence to suggest that the Act is in operation. He did no more for the purposes of this appeal than he did for the purposes of the hearing before the Immigration Appeal Tribunal and that was simply to put the Act before the tribunal.
16. It seems to me therefore that the whole basis upon which the Appeal Tribunal proceeded has been undermined by that crucial passage of three days of time and at the time they notified their decision the law was not as they assumed it to be. It is a narrow point upon which to determine this matter, but in my judgment the appeal should not only be allowed but it should be allowed in such a way as to bring this unhappy matter to an end.
17. In my judgment it would not be appropriate to remit the matter to the Immigration Appeal Tribunal for rehearing but to quash their decision, and in the result the decision of the Special Adjudicator that this appellant, Mr Assiimwe, is entitled to claim asylum is the decision which now stands.
18. LORD JUSTICE MAY: I agree that this appeal should be allowed in the terms that my Lord has described. Miss Richards accepts that the appeal has to be allowed. The only question for this Court is whether in those circumstances the matter should be remitted for yet further consideration by the Immigration Appeal Tribunal. Miss Richards accepts that there was no evidence before the tribunal that the Ugandan Amnesty Act 2000 remained in force at the time of the promulgation of the tribunal's decision. There is no evidence on that subject before this Court although Miss Richards has some hastily gathered instructions on the subject. Since the entire basis of the Immigration Appeal Tribunal's decision depended on the Amnesty being in force, the failure to establish that it was is, in my view, a complete reason why this appeal should be allowed.
19. I agree with my Lord, Ward LJ, that we should not remit this particular matter to the Immigration Appeal Tribunal.
20. I would only add that in my view this Court's decision is particular to this case and neither the basis upon which I agree that this Court should allow this appeal nor the fact that I agree that we should decline to remit the case would be of relevance in other cases in which questions relating to amnesty in Uganda might arise.
21. LORD JUSTICE RIX: I agree with both judgments.
(Appeal allowed; decision of Special Adjudicator restored; applicant to have costs; legal aid)