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 IMMIGRATION APPEAL TRIBUNAL

		Royal Courts of Justice Strand London, WC2 Friday, 22 November 2002

1. LORD JUSTICE SIMON BROWN: The applicant is an Ethiopian citizen aged 33 who arrived in this country on 18 July 1999 and three days later applied for asylum. Her application was refused by the Secretary of State. The applicant's appeal against the refusal, and an associated human rights appeal invoking Articles 3 and 8 of the Convention, were dismissed by the adjudicator in a very detailed and careful 14-page reserved determination on 3 April 2002. The applicant's further appeal to the Immigration Appeal Tribunal was dismissed, again in a reserved judgment, on 2 August 2002. On 5 September 2002 the IAT refused permission to appeal, the tribunal chairman observing that "there is no arguable point of law". On 23 October 2002 I myself considered the application for permission to appeal on the documents and refused it in the following terms:

"I agree with the IAT that no arguable point of law arises here. The reality is that there have been 2 adverse decisions here on the facts and the applicant is not entitled to a third. Ingenious though counsel's very full skeleton argument is, I am wholly unpersuaded by it."

2. Nothing daunted, the applicant has renewed the application by way of oral hearing today and, pursuant to my own earlier order, it has come before two members of the court, Lord Justice Clarke as well as myself. The reason I provided for that was because, as it is well-recognised that asylum cases are to be regarded as of particular importance and calling for the most anxious scrutiny, it seemed to me right to ensure that my own view of the lack of merits of this proposed appeal did not stand alone. As I understand it, my Lord now shares my view.
3. I propose to say really very little beyond what I said earlier by way of reasons for refusing, as I believe to be appropriate here, this application. Detailed refutation of the various proposed grounds would inevitably require a lengthy judgment, but that is simply not appropriate on an application for permission such as this.
4. The high points of the applicant's case for asylum were, first, the report from the Medical Foundation for the Care of the Victims of Torture, which catalogued an extensive list of scarring and attested therefore to substantial past ill-treatment; and, secondly, her continuing suffering from severe depression. It is quite impossible to say, however, that these circumstances are consistent only with an acceptance of her asylum claim. On the contrary, given that there was ample material to support the adjudicator's adverse credibility findings, it was clearly open to the adjudicator to conclude that the more likely source of ill-treatment had been spousal abuse. There was certainly more than enough evidence justifying the conclusion that she had lied as to her activities with the Oromo Liberation Front and would be of no possible interest to the Ethiopian authorities.
5. In a skeleton argument received by the court only this morning (lamentably late, as must surely be obvious to all), Mr Eicke now seeks to refocus the applicant's case and to capitalise on the findings of spousal abuse. Essentially his argument is encapsulated in paragraphs 9 and 10 of the further skeleton as follows:

"9. The logical consequence of these findings [the findings that the applicant's husband had seriously abused her and had taken the two children, and that her main present aim is to be reunited with the children, which is obviously best achieved in Ethiopia] (and her adamant denial of any mistreatment at the hands of her husband) is that, if returned, the Appellant would do everything to find and be reunited with her children and, as a result, her husband -- the serious abuser as identified by the IAT.

10. The same objective material that led the IAT to conclude that the Appellant had suffered from spousal abuse also provided evidence that there was little if any protection available for women suffering from spousal abuse in Ethiopia."

For my part, however, I am unimpressed by this revised case; a case, be it noted, which is diametrically opposed to that which she in fact advanced before the independent appellate authorities, namely that she had never suffered harm at her husband's hands.

6. Mr Eicke put before us this court's decision in Ivanauskiene v A Special Adjudicator [2001] EWCA Civ 1271, unreported transcript 31 July. There, however, the whole basis of the claim to protection under Article 3 of the Convention was that the appellant had been regularly assaulted by her former husband, a very different case from the present.
7. Let me just read paragraph 41 of the adjudicator's determination in the present case:

"I accept that she is a deeply traumatised individual who was inconsolable when asked about her children. I do not know whether she is overcome with remorse at having left them in Ethiopia. I do not know whether her distress arises out of any abduction attempt by her husband. But I do know that she is severely traumatised not least because of her separation from the children and her repeated dreams that they are dying of starvation in Ethiopia. I accept from the medical evidence that she is suicidal but it was clear from her evidence before me that what this Appellant desires more than anything else is to be reunited with her children and I do not know if this will ever be possible whilst she remains in the United Kingdom."

Given the applicant's obvious, and wholly understandable, longing to be reunited with her children and in the face of her continuing adamant disavowal of fear of her husband, it really was not for the adjudicator or the IAT, still less is it for this court, to conclude that a return to Ethiopia would necessarily involve this country in a violation of Article 3. There is no evidence whatever available as to how the applicant's husband and children have fared over the past three years and more since she left Ethiopia. Who knows on what basis the applicant might now be able on return there to secure the children's return to her? Who knows indeed what the husband's present position and plans may be?

8. This case has already been twice considered in the greatest detail by fact-finding tribunals. This court in my judgment is not required, nor indeed entitled, to undertake what essentially would constitute a third investigation of the facts. For my part I am satisfied that no properly arguable point of law arises here.
9. I would refuse this renewed application.
10. LORD JUSTICE CLARKE: I agree that the application on the original grounds must fail because the appeal raises no question of law and is simply an attempt to reargue the facts. It is no doubt for that reason that Mr Eicke has entirely recast the application. I agree that the application as recast must fail on this ground too, for the reasons given by Lord Justice Simon Brown.
11. I would only add this. In paragraph 9 of the latest skeleton argument, this point is made:

"The logical consequence of these findings (and her adamant denial of any mistreatment at the hands of her husband) is that, if returned, the Appellant would do everything to find and be reunited with her children and, as a result, her husband -- the serious abuser as identified by the IAT."

As I see it, there is no factual basis for the conclusion that the applicant would continue to deny spousal abuse. If, as the factual basis of this argument assumes, she had in fact been abused, I can see no factual basis upon which the IAT could allow an appeal from the special adjudicator. There is no evidence to support the conclusion that in those circumstances the applicant would or might run the risk of further spousal abuse. There is simply no evidence to that effect.

12. I too would refuse the application.
ORDER: Application refused