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

		The Royal Courts of Justice Strand London WC2 Tuesday 30th July, 2002

1. LORD JUSTICE LAWS: This is a renewed application for permission to appeal against the decision of the Immigration Appeal Tribunal notified on 24th October 2001 to dismiss the applicant's appeal against the determination of the adjudicator promulgated on 21st May 2001, when he dismissed the applicant's appeal against the Secretary of State's refusal of asylum. Permission to appeal to this court was refused by myself on consideration of the papers on 19th April 2002. The renewed application was listed for hearing before me on 17th May 2002. It was adjourned on that occasion owing to difficulties in relation to the public funding of the case. It has been restored for hearing today and Miss Hooper has represented the applicant.
2. The applicant is a citizen of Nigeria. He arrived in the United Kingdom on 4th January 1995 and applied for asylum two days later. He claimed to have been involved in political activity against the Abacha government in Nigeria in the early 1990s and to have been detained on three occasions. He claimed to have bribed his way out of Nigeria and while in the United Kingdom to have become a member of the Oduduwa Movement (UK). This was allied with the OPC in Nigeria, which in its turn had two factions, one led by Daniel Adams. He had gone underground. The other faction was led by Dr Frederick Faseum, who was not underground but who it was said was harassed by the authorities.
3. The applicant claimed to have continued to be involved in political activity and said that if he were returned to Nigeria he would be arrested as soon as he left the plane.
4. The adjudicator did not believe that the applicant had been detained in Nigeria. He considered it likely that the applicant had engaged in political activities in the UK, as he put it:

"... solely for the purpose of strengthening his claim for asylum ..."

5. What the applicant had said about the OPC was at variance with various aspects of the objective evidence about that organisation. Even if the applicant were to join the OPC on his return to Nigeria it was not likely that he would be persecuted, and so the adjudicator dismissed the applicant's appeal.
6. The IAT gave leave to appeal to itself having regard to two aspects of the adjudicator's reasoning. The applicant gave evidence before the Tribunal. The Tribunal said this:

"12. We must confess that we were as unimpressed as the Adjudicator was by the role which the Appellant alleged to have played in London in relation to the Movement of the OPC. Although the Appellant is clearly part of the movement, we agree with the Adjudicator that he is extremely unlikely to suffer persecution on account of his links with the movement if returned to Nigeria today."

7. The IAT proceeded to note the applicant's counsel's complaint that the adjudicator had made no reference to a raft of written materials which had been put in on the applicant's behalf. These were said to demonstrate that members of the OPC had been killed in large numbers by police. As I shall explain in a moment, all this material is relied on before me. Essentially Miss Hooper's complaint is as to the way in which the Tribunal dealt with it. This what they said:

"14. The materials were before the Adjudicator. True he did not specifically refer to them. But we have examined them and find nothing therein which touches on the general points and conclusions of the Adjudicator that:

(1) The offensive against the OPC by the police and other state agencies is directed against the men of violence and general lawlessness.

(2) There is no evidence to suggest that the appellant is likely to face persecution on account of his links with the Oduduwa Movement or OPC in London; and

(3) He has failed to demonstrate a well-founded fear of persecution if he were to be returned to Nigeria today."

8. That passage follows a short quotation from the grounds of appeal which Miss Hooper had put in before the IAT in which some of the objective materials are briefly summarised.
9. On this application Miss Hooper draws attention to the bundle of objective materials, which I have looked at again before coming into court this morning. It is said that these written materials mount a powerful case to the effect that the OPC is a banned organisation whose members are targeted and many have been detained or killed. Miss Hooper has referred to a Tribunal decision in the case by name Disu, where the decision was promulgated I think on 25th July 2000. In that case the Tribunal had said this:

"The nature of the actions against the OPC in Nigeria in recent months appears to be so widespread that it is difficult to resist the conclusion that they are at risk of persecution by reason of their political opinion and racial origins."

10. I will just give two examples of the kind of material contained in the documents in question. The first is from a newspaper report, as I believe it to be, dated 10th March 2001 under a heading "Soyinka writes Obasanjo, alleges decimation of OPC members" and the author of the piece says this.

"Barely weeks after the United States (U.S) State Department rated low, the human rights records of the new civilian government, Nobel laureate Wole Soyinka has alleged in a strongly-worded letter to President Olusegun Obasanjo, that there is a systematic decimation of members of the Oodua Peoples Congress (OPC) by the Lagos Police command and other agencies.

And according to the playwright, evidence exists that jails are filled with alleged members of the group following the shoot-on-sight order of the president.

The concern of Soyinka is that due process of law is not being followed and that acts which amount to extra-judicial killings are being perpetrated by the police under the guise of curtailing the violence of such groups.

`What has become apparent and undeniable is a systematic project of decimating this organisation through acts of intimidation, brutalisation and extra-judicial killings. The recent incident does not ameliorate the unsavoury Kill-and-Go reputation of the police, neither does it enhance the Human Rights obligations of your office that set these killings in motion,' he said in the letter which was released to The Guardian in the US. The letter has also [been] copied to the Lagos State Governor, Bola Tinubu Inspector-General of Police and Lagos State Police Commissioner, Mike Okiro."

11. The other example from the documents which I will set out is just two sentences from a United States' country report, dated I think February 2001, where this appears:

"Police were instructed by the Federal Government to use deadly force in conflicts in Lagos State with the Oodua Peoples Congress (OPC) vigilante group. By August police in Lagos reported killing 509 armed robbers and injuring 113, during the course of making 3,166 arrests; not all of those killed were OPC members. No action was taken against these security officials by year's end".

12. There are other examples. I will not lengthy this judgment by setting them out.
13. When I refused permission to appeal in April I indicated that I considered this application to be an "impermissible attempt to revisit the factual merits". That may turn out to be entirely correct. I do not give permission on the basis that a rational tribunal must have allowed the applicant's appeal. But I am persuaded that it is arguable that it was incumbent on the Tribunal to offer more by way of reasoning than the bare statement that these written materials contain -- and I have quoted it already -- "nothing which touches on the general points and conclusions of the adjudicator".
14. For that reason only I would grant permission to appeal and I do so.
ORDER: Application for permission to appeal granted. (Order not part of approved judgment)