England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL

		Royal Courts of Justice Strand London WC2 Wednesday, 24th July 2002

1. LORD JUSTICE SEDLEY: This application, made by Mr Simon Cox, is for two things. One is an extension of time for renewing in open court the application for permission to appeal which was turned down on the papers. The second, which is open if and only if time is enlarged, is permission to appeal by way of renewal.
2. The applicant is a Sri Lankan Tamil, aged 31, who asserts that he helped the Tamil Tigers under duress but who bears scars of gun-shot and/or shrapnel wounds to his left leg sustained, he says, when he was shot at during an arranged escape from custody in October 1996. After this episode he had escaped to Romania but had been returned. He said that he was arrested on return but after 38 days' detention he was released after payment by his uncle of a bribe. He came to the United Kingdom clandestinely in 1999 and claimed asylum, he says promptly but the Secretary of State says in 2000.
3. The Home Secretary refused his claim but the adjudicator allowed it in somewhat dramatic fashion. On seeing photographs of the applicant's scars he indicated to the Home Office presenting officer and to the applicant's counsel, who thereupon elected not to call his client, that this was in his view enough to establish a real risk of ill treatment if the applicant were to be returned to Sri Lanka. In a short judgment he allowed the appeal. In the course of it he held that the fact the scarring had not led to the applicant being tortured or ill treated in detention on his return from Romania in 1998 was irrelevant.
4. The Secretary of State appealed with permission to the Immigration Appeal Tribunal who held first of all that the adjudicator had made an error of law in holding that the particular prior history was irrelevant in assessing future risk once the presence of the wounds was established. In my judgment, the Immigration Appeal Tribunal was plainly right so to hold and the contrary is, in my view, unarguable.
5. Consequently the first proposed ground of appeal falls away at this point. The adjudicator had earlier correctly directed himself:

"The relevant evidence is whatever in the past, present or future has any real bearing ..... "

on well founded fear of persecution for a Convention reason. He failed to follow his own prescription.

6. What gives more pause is what the Immigration Appeal Tribunal then did. They had been asked by the Home Office presenting officer, if they allowed the appeal, to remit it to a different adjudicator for determination. In consequence, counsel for the applicant had not sought to re-argue the merits but had sought only to defend the adjudicator's decision in point of law. The Immigration Appeal Tribunal, noting that the applicant had not been called in either instance, concluded that it was as well placed as an adjudicator to reach a final decision and proceeded to do so in terms wholly adverse to the applicant. They held - and I do not say that for my part I would necessarily have so held - that the applicant's story about how he came to be shot "is ridiculous and beggars belief". For my part, I have sufficient recollection of histories of people allegedly shot while trying to escape to have possibly formed a different view. But it was the Immigration Appeal Tribunal who were, as they always are in a situation like this, the tribunal of fact.
7. The applicant's remaining grounds do not take issue with the jurisdiction of the Immigration Appeal Tribunal to take the course it did. Mr Cox has accepted before me today that in the circumstances presented to them they were entitled to do as they did. What he takes issue with is the way the Immigration Appeal Tribunal went about evaluating the facts. In brief, the second ground asserts that they relied solely on past events to determine future risks. The third ground asserts that they erred in law in how they dealt with the applicant's scarring. The fourth ground asserts that they failed to consider the whole of the applicant's case.
8. It is not appropriate to read out the whole of the Immigration Appeal Tribunal's judgment in order to show that thefirst two of these remaining grounds are simply not well founded. Mr Cox has not really sought to develop them today. Mr Justice Collins, presiding, set out guidelines (paragraphs 8 to 11) for cases such as the applicant's which are balanced and, as Mr Cox accepts, not open to legal challenge. If there is a viable challenge it must be on the final ground that the Immigration Appeal Tribunal failed to apply those principles to the entirety of the facts of the applicant's case.
9. In refusing permission to appeal from the decision of the Immigration Appeal Tribunal, Mr Justice Collins described the notice as a "blatant attempt to dress up facts as law". He described the last of the grounds I have mentioned as particularly odd. In my present view this is not necessarily a fair criticism of it.
10. I have turned to the original skeleton argument before the adjudicator in order to see whether Mr Cox's critique is made out in concrete terms. His written arguments have specified a number of the sub-paragraphs of that skeleton argument which I do not think the Immigration Appeal Tribunal can say were no longer relevant since they had undertaken a reappraisal of the facts. But of them, the one that I select as being the high point is the sub-paragraph which says that among the reasons for a well founded fear of persecution on the part of the applicant is that -

"he will be detained for more than 48 hours because he falls into the higher risk categories namely young Tamil from Jaffna, is suspected of previously helping the LTTE, is wanted by the authorities and he has scars."

11. Put narrowly, the question is: ought the Immigration Appeal Tribunal at the very least to have addressed these facts in the light of their own self-direction about the personal facts-specificity of risk assessment, or is their rounded assessment that there was no real risk a sufficient discharge of their fact-finding obligation? Putting it in the broader way in which Mr Cox has put his case today, the question is whether the Immigration Appeal Tribunal's reasoning is insufficiently attentive to the facts which the Immigration Appeal Tribunal has held, in principle, to be material? Thus it is an error of approach rather than any error of law which Mr Cox wishes to submit vitiates the Immigration Appeal Tribunal's decision.
12. Let me pause - because this is the only point at which the proposed appeal even begins to show a sign of life - so that I can consider the question of time. When this restored application came before Lord Justice Kennedy on 10th July he was forced to adjourn it so that Mr Cox could place a coherent account before the court of the lapse of time in renewing the application. I now have a detailed account from the applicant. Lord Justice Tuckey's refusal of permission to appeal on the papers was given on 24th May and received by the then solicitors to the applicant on 25th May. It follows that any renewal had to be set in train by 31st May. On 27th May the solicitors apparently wrote to tell the applicant of Lord Justice Tuckey's decision and to say that they were taking counsel's advice about renewal. No step was taken even by way of precaution to renew in the meantime. The applicant's account now before me is that he did not receive the solicitor's letter, nor the one which followed on 30th May saying that counsel had now advised against renewal. The applicant further gives evidence to this court in writing that twice - once on 28th May - he telephoned or visited the solicitor's office and was told the application was still pending. He says that the first he knew of any change in his position was when he reported routinely at the police station on 14th June and was arrested. He asserts that even then when he telephoned his solicitor she continued to insist she was still awaiting counsel's opinion and that the case was pending. It was only when he changed solicitors that the situation was appreciated and the application renewed out of time; this was on 28th June when the applicant was about to be removed. Lord Justice Brooke dealt with it on the same day refusing to enlarge time on the basis of emergency grounds then before him on the papers.
13. I am in no position to decide whether not one but two letters, both sent to an address from which Mr Cox assures me today the applicant collected his mail, failed in the event to reach that address or, if they reached it, to reach the applicant. It would be odd if neither had done. But it is also odd that he continued to report to the police as if everything was all right if he knew he had reached the end of the road. I am certainly not going to accept the veiled suggestion that the two copy letters of 22nd and 30th June have been interpolated into the bundle supplied to the new solicitors. What is now clear is that not one but two counsel, one within the seven days and one outside them, advised those first solicitors that there were no sufficient grounds for restoring this application for permission to appeal. I will assume in the applicant's favour that he did not receive the solicitor's two letters in late May. Had he done so and had they also told him what the first letter said when he telephoned on 28th May, as on this assumption they should have done, would the situation have been markedly different from what it is now? We know that in the light of the advice given to the solicitor by counsel there would almost certainly have been no renewal unless the applicant, who was funding his own litigation, had instructed them to renew despite counsel's advice. What he might have done is collect the papers and go to new solicitors and, through them, to new counsel who might have given the more sanguine advice which corresponds with the submissions Mr Cox has made to me today. It is very unlikely indeed, in my judgment, that all this would have been achieved and renewal set in train by 31st May. It might have been done much closer to that date and it may be, as Mr Cox submits, that the excuse for the lapse of time would have been an acceptable one.
14. This means that the applicant is in a situation, upon the assumptions I am prepared to make in his favour, not very different from that of any applicant who has first been advised not to renew his application for permission to appeal because it is hopeless and who has then decided, either a little or considerably out of time, on further advice to attempt such renewal. Any such applicant has to have a good reason for the late renewal. In this case there would be an argument upon the assumptions of fact that I am making in his favour.
15. I say no more than this because I return now to the other limb of the argument, since the application is renewed through lawyers who feel able to take a more sanguine view than the previous lawyers of the prospects of success. My own view of the prospects of a successful appeal, for reasons that I have now indicated, is not nearly so sanguine.
16. The one point on which Mr Cox has finally focused his submissions is not, in my judgment, a strong one. Counsel's initial view that it would not fly is at least as respectable a view. I have not been persuaded even by Mr Cox's, as always, able presentation of the argument today that it can be elevated to a point where it can be said to have a realistic prospect of success. Whether one looks at it in broad terms or in narrow terms it seems to me that the reasoning of the Immigration Appeal Tribunal, somewhat brutal though it may be thought to be in its evaluation of the facts, passes muster as a coherent set of reasons.
17. Seen narrowly in the way I have described, all the relevant facts can be found set out - most of them in the opening sentences - in the decision. Looking at it in the broader perspective that Mr Cox has adopted, I do not think it can be said either that those facts are overlooked or that there is a weakness of approach to the issues that had to be decided by the Immigration Appeal Tribunal. Paragraph 10, upon which Mr Cox's critique has focused, is not of course a comprehensive finding in itself. It is the culmination of the Immigration Appeal Tribunal's consideration of the factors which it has set out earlier in its decision. It proceeds - when one stands back and looks at it - from the factually specific through the legal and general to a conclusion which amounts to a rounded appraisal of the present and prospective situation of the applicant filtered through the law but constituted by the facts as the Immigration Appeal Tribunal for better or worse has found them to be.
18. In these circumstances I do not consider that it is appropriate to enlarge time. I decline to do so partly on the basis that even given my assumptions about the passage of time the grounds are not strong, but also because even if I were to enlarge time I would not have considered this a suitable case for the grant of permission to appeal. On both scores therefore the application is refused.
Order: Application refused