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
(M H F CLARKE, ESQ)

		Royal Courts of Justice Strand London WC2 Wednesday, 9th May 2001

1. LORD JUSTICE SIMON BROWN: The appellant is a 33-year-old Ugandan national who arrived in this country on a false passport on 16th July 1994, and on 3rd August 1994 claimed asylum.
2. The essential basis of his claim was that in 1990 his father had set up a farm in the Gulu district of Northern Nigeria from which food was supplied to many different groups including rebel groups. On 26th June 1994 the appellant was arrested at the farm and held in prison for two weeks during which time he was beaten, tortured and questioned about his role in assisting the rebel movement known as the Lord's Resistance Army ("the LRA").
3. He contended that his father then bribed the military authorities to release him and that he was smuggled out of prison with two other prisoners who were later executed. He was then taken to the Kenyan border where he was met by an agent called Matthews who supplied him with a false Ugandan passport containing a photograph of somebody roughly resembling him and who travelled with him via Saudi Arabia to the United Kingdom.
4. The Secretary of State having rejected the asylum claim on 14th July 1997, the appellant appealed to the Special Adjudicator who, in turn, dismissed his appeal on 18th May 1999. The material passage from the Special Adjudicator's determination is as follows:

"I have considered the appellant's account with great care. I accept that he was arrested on 20 June 1994 and detained because of his dealings with the Lord's Resistance Army. I also accept that during his detention, he was ill-treated; I have regard in this respect to the Medical Foundation Report. However, I do not find the appellant's explanation as to how he came to be removed from prison and subsequently travelled to the United Kingdom to be credible. There is no supporting evidence from the Kenyan described as Matthew nor from the appellant's uncle. By his own admission in evidence, the appellant has provided, albeit at a fairly low level, support for a rebel organisation known as the Lord's Resistance Army whose activities are vividly described in the documentation before me. [At this point the activities include a violent campaign against military and civilian targets as well as aid agencies' food convoys.] I regard the appellant as a fugitive from justice rather than a fugitive of persecution. I do not disregard Paragraphs 56 et seq of the UNHCR Handbook. I have given the most careful consideration to the assertion made on behalf of the appellant that he would be denied a fair trial in Uganda. I do not believe that the treatment accorded to the supporters of the Lord's Resistance Army by the Ugandan authorities amounts to persecution as defined by the 1951 Convention. It is my finding that if the appellant were to be returned to Uganda, and if he were to come to the attention of the authorities as having provided food to the Lord's Resistance Army in the manner he has described before me, it would be open to them to carry out proper investigations and to prosecute him in accordance with the law of Uganda."

5. The Medical Foundation Report there referred to was one dated 4th October 1995 from that excellent body the Medical Foundation for the Care of Victims of Torture, and it recorded a large number of scars of one sort or another on the appellant's body, some apparently caused by broken bottles when he was arrested in the manner he had described, others by the various beatings he had received during his time in prison.
6. The appellant next appealed to the IAT by their leave, but his appeal was dismissed on 31st March 2000 by a tribunal presided over by Mr George Warr. The most material paragraph from that determination is as follows:

"We have carefully considered all the material before us, including Counsel's skeleton argument dated 24 February 2000 and the two bundles relied on.

The appellant was not aware of the assistance being given to the LRA for some period of time. The support was of a fairly low level nature, involving produce from his father's farm. Given the appellant's admitted low level involvment and the notorious activities of the Lord's Resistance Army, it is not surprising that he came under investigation by the authorities. It is important to note that the adjudicator specifically rejects the appellant's claim about how he managed to escape from detention and come to the United Kingdom. The implication is, as Mr Beaney [he was acting on the appeal at this stage] observes, that he was released. The authorities would no doubt have been satisfied that the part he played was peripheral."

7. The IAT refused further leave to appeal to this Court, as did Tuckey LJ, when the application was first considered on the documents. At a short oral hearing on 12th January 2001, however, Schiemann LJ gave permission to appeal and thus the matter now comes before this Court.
8. Mr Serugo-Lugo on behalf of the appellant advances four grounds of appeal which I will take in turn. First, he contends that the beatings and injuries suffered by this appellant in detention back in 1994 went beyond any normal police or military brutality and, coupled with the appellant's evidence as to two fellow detainees being murdered in cold blood on the occasion of the escape, established his case that he had been persecuted and on return would be likely to face similar treatment. The difficulty with this argument it seems to me is two-fold: first, and perhaps less decisively, it runs into the problem presented to this appellant by Jowitt J's decision in R v Immigration Appeal Tribunal ex parte Shokar [1998] Imm Ar 447:

"Police brutality, however reprehensible, is not per se persecution for a Convention reason. There has to be a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. The police brutality, which is directed at a prisoner simply because he is a prisoner, is not per se persecution for a Convention reason."

9. In the same way that it appears that police violence was endemic throughout India, as was the evidence in Shokar, so it may well be the position in prisons in Uganda.
10. The second and more fundamental difficulty with the first ground of appeal, however, is the Special Adjudicator's finding that so far from the appellant having escaped, he was released by the Ugandan authorities because they had assessed him as having played merely a peripheral role in the LRA, a conclusion which means that in reality he would be of no further interest to the authorities on return home. He would not, therefore, be subject to further detentions and beatings of the kind earlier suffered.
11. The appellant's second ground of appeal is that the Special Adjudicator's findings, first, that the appellant was released because he was of no further interest to the authorities, that at least being the implication of his findings, and second that he was a fugitive from justice not from persecution, are inconsistent with each other with the result that the reasoning of the adjudicator's determination is to be regarded as crucially flawed. To my mind, however, there is really nothing in this point. As Mr Pushpinder Saimi points out in his skeleton argument, the two points are not contradictory; rather, they are cumulative. The adjudicator was in effect saying that the appellant will not be apprehended again because the authorities have exhausted their interest in him but, if he is, then they would properly be entitled to pursue him as a fugitive from justice.
12. The third ground of appeal is that even if, as the Special Adjudicator found, the appellant was to be regarded as a fugitive from justice, he would not receive a fair trial and was therefore entitled to protection under the 1951 Convention. The appellant relies in this regard upon his own assertion, unsupported though it was by any evidence, that he would be tried by a military court, upon the evidence that the processes of such a court are deeply unsatisfactory (see US State Department Reports for 1997 and 2000), and upon paragraphs 56 to 60 of the UNHCR Handbook to which the Special Adjudicator himself referred.
13. Again, there seem to me to be two independent answers to this ground of appeal. First, and crucially, it runs into the selfsame difficulty as the first ground, namely the Special Adjudicator's principal finding that the appellant was simply released by the authorities, the implication being that they had by then found his part in the LRA to be merely peripheral so that they were no longer interested in him. Second, however, although we have not found it necessary to explore this, is the finding by both the Special Adjudicator and the IAT that in any event the appellant's case would be covered by the amnesty granted in Uganda for such rebel groups.
14. The appellant's fourth and final ground of appeal is that he is perceived by the Ugandan authorities as being an opponent of the regime and as a matter of law therefor is protected by the Convention - (see the 1990 decision of the IAT in Asante v Secretary of State for the Home Department [1991] Imm AR 78. The argument, however, takes that decision slightly out of context. The principle established there, and it is now well-known in Convention jurisprudence, is that it would be wholly contrary to the spirit of the Convention if it did not encompass those who would suffer persecution because those in power believed that the individual held certain political opinions or was likely to commit acts in support of a political cause. Whilst in that case, however, on the facts found by the adjudicator the appellant would indeed suffer persecution were he to return, here by contrast the Special Adjudicator's and the IAT's central finding, as I have more than once already observed, is that he would simply be of no further interest to the authorities.
15. That really is the answer to all the points raised by Mr Serugo-Lugo on this appeal, nor is it open to him to contend, as he would wish, that the appeal authorities were rightly wrong to have regarded his involvement with the LRA to have been at a low level. It follows that in my judgment the appeal must fail and I would accordingly dismiss it.
16. LORD JUSTICE KEENE: I agree.
17. LORD JUSTICE LONGMORE: I agree also.
(Appeal dismissed; Legal Aid assessment)