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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Lakew v Secretary Of State For Home Department [2002] EWCA Civ 1439 (13 September 2002)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1439.html
Cite as: [2002] EWCA Civ 1439
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COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION
Strand London WC2 Friday 13th September 2002 |
||
B e f o r e :
and
LORD JUSTICE CARNWATH
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| TSEHAY KASSA LAKEW | ||
| - v - | ||
| THE SECRETARY OF STATE FOR THE HOME DEPARTMENT |
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Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 020 7421 4040 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
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- LORD JUSTICE WALLER: This is a renewed application for permission to appeal the decision of the Immigration Appeal Tribunal. Permission to appeal was refused on paper by the single Lord Justice and when I first looked at the papers, I was inclined to feel that he was right in the view that he had formed. It may turn out that he was. But it seems to me that this is a case in which permission to appeal should be given.
- There is now one single point taken. It is a point which clearly did not, as I would judge, receive such prominence as it should in the past. That may be due to the fact that very lengthy submissions were made to the Special Adjudicator, and many grounds of appeal were put in before the Appeal Tribunal. A degree of sympathy is due to those persons who have to deal with these cases, if a vast number of points are taken, and key points are thus obviscated. It seems to me that may well have happened in this case.
- But the point now taken starts in fact from a different factual basis, than that assumed by the Home Office and the Adjudicator. It may well be that neither of those appreciated the change in the factual situation which had been brought about by a second statement which had been put in by the applicant. It is in fact important to stress that the applicant's credibility is not in doubt, and thus it is not and never has been suggested that in some way there is some improper motive for putting in a second statement.
- The second statement made clear that, in so far as the applicant had been suggesting that visits had been made to her house following her husband's arrest, and that those visits were continuous that was not in fact the position. What was stressed in the second statement was that the applicant's case was that, after detention of the applicant's husband, there were some visits from the authorities in the early period and in the first year, but that those visits ceased. It was then after that that she says that she joined the AAPO. So far as that organisation was concerned, although there was some evidence that members of that party stood as candidates, there was also evidence that many members of the AAPO had been arrested and detained, at least in the year 2001 and there was evidence that many detainees had been held for some years without trial.
- The point now stressed on behalf of the applicant is that after joining the AAOP and after a gap in any visits, visits were then made to the applicant's home, in 1997, which were of a different character to the previous visits. Her case is and was that those visits frightened the applicant and indeed caused her not to return to her home and caused her ultimately to use an agent to leave Ethiopia and come to this country. Once here, she claimed asylum, not on entry but on the day after she had entered. Her case is that she fears that if she is returned to Ethiopia she may be further investigated by the authorities, that she may be detained and that she has a fear of persecution, due to her political activities with the AAPO.
- The Home Office and the Special Adjudicator understood the applicant's case to be that after her husband was detained, these visits continued over the years without any break. The significance of the break is said to be that it demonstrates that the visits which were, as I said, of a different character, must have been made not because of the applicant's husband's detention but because the applicant was doing something active in the political sphere of which the authorities disapproved. It is said that those visits in 1997, demonstrate the likelihood that she was considered by the authorities as an activist for the AAPO and was the subject of investigation and at risk of detention and that that risk would be there if she was returned to Ethiopia.
- This point now put forward was taken before the Appeal Tribunal. One can see that from ground 3, at page 23, it seems unlikely that it was made the main point before the Appeal Tribunal because, from their reasoning, they appear to have thought that the main point being taken related to a missing page of the interview. It may well also be that the Appeal Tribunal did not appreciate the significance of the point by virtue of all the other points being taken. As I have already indicated, one must have some sympathy for them in the task that they have.
- But in the reasoning of the Appeal Tribunal, although reference is made to the fact that there was this gap in the visits, and indeed to the point which is made in relation to the significance of that gap, there reference is made in the context of the point which the Appeal Tribunal had dealt in the main, that is the missing page point (and this is the paragraph to which the single Lord Justice referred, paragraph 10). When one comes to the reasoning of the Tribunal by reference to which they dismissed the applicant's appeal, which is from paragraph 13 onwards, there does not seem to be any mention of the point, nor any attempt to deal with the significance which the applicant would argue that it had and which it seems to me, in any event that it is arguable that it does have. In my view, the applicant should be given the opportunity of persuading the Court of Appeal that the Immigration Appeal Tribunal's reasoning is flawed and I would grant permission to appeal.
- LORD JUSTICE CARNWARTH: I agree. There is sufficient in this case to justify the grant of permission. I would also add a very strong plea that those advancing cases of this kind do not submerge the relevant tribunals with unnecessary material. The case here was a relatively simple one. But the Adjudicator was faced with a very lengthy submission which he attempted to summarise. The Vice-President of the tribunal, in considering leave, was faced with grounds of appeal which he categorised understandably as of inordinate and unnecessary length. It is not surprising, therefore, that the specific point which is now raised was not clearly highlighted before the Tribunal. But I accept that as we are dealing here with an asylum case, it would be wrong to hold those problems against the appellant. I would also add that although Mr Southey's skeleton before this Court is much more focused the point does not need a lever arch file of some ten authorities. It is the type of issue on which the Court is very familiar.
- LORD JUSTICE WALLER: We ought to - time estimate, it is not going to take very long to hear this appeal.
- MR SOUTHEY: I put the estimate at 2 hours and that would be an overestimate I think, including judgment I would think.
- LORD JUSTICE WALLER: We give an estimate of two hours but that includes judgment.
- MR SOUTHEY: Yes.
- LORD JUSTICE CARNWARTH: I am just saying that the point I made about authorities I hope is taken. What I think is needed here is simply drawing together the threads of the various different bits of evidence and trying to work out how the dates fit together so one can see precisely what the case is at each stage. I did not find it at all easy on the material that I had. - I should have thought this could be heard by two Lord Justices.
- MR SOUTHEY: Again I can see no reason and it should obviously - a skeleton. Do you want to add to your skeleton?
- MR SOUTHEY: (Inaudible).
- LORD JUSTICE CARNWARTH: Or subtract from it?
- MR SOUTHEY: I suspect.
- LORD JUSTICE WALLER: I thought you might like to look at it again and therefore there is a timetable laid down for putting in skeletons so far as you look at the skeleton again and see if you cannot reduce it. Then there will be a limited amount of material, hopefully, before the Court. Thank you very much.