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
(MR DRABU, MR P ROGERS AND THE RT HON THE COUNTESS OF MAR)

		Royal Courts of Justice Strand London WC2A 2LL Friday 8 February 2002

1. LORD JUSTICE PILL:This is an application for permission to appeal made on behalf of Sunday Emmanuel Ngene against the decision of the Immigration Appeal Tribunal, the Tribunal itself having refused leave to appeal on 4 December 2001.
2. The IAT allowed an appeal from a determination of an adjudicator promulgated on 14 May 2001. The adjudicator had before her a claim for asylum and also what is known as the human rights claim. The adjudicator dismissed the claim for asylum, finding at paragraph 29:

"Thus I do not find that Mr Ngene has established a sufficient risk of persecution on the grounds of his religious beliefs to engage the responsibility of the United Kingdom to grant him asylum."

3. The adjudicator continued:

"The second limb of Mr Ngene's case, the human rights claim, rests on the effect of decree 33 with regard to a conviction the appellant received in Slovenia for a drugs offence."

4. The adjudicator rejected claims that there were breaches of other articles. Paragraph 38 stated:

"Thus I find that there is a serious likelihood that Mr Ngene would be subjected to inhuman or degrading treatment contrary to Article 3 of the ECHR were he to be returned to Nigeria."

5. Article 3 provides that:

"No-one shall be subject to torture or to inhuman or degrading treatment or punishment."

6. Torture was not alleged.
7. It is not necessary to consider the background facts in great detail. The applicant is a Nigerian national and is now 35 years old. He left Nigeria in 1991 and lived in Italy until 1997. In that year he visited Slovenia on a borrowed British passport belonging to a friend. On his return to Italy he was stopped by customs officers and charged with drugs offences. He was convicted by a Slovenian court of those drugs offences and sentenced to a period of imprisonment. Because in Slovenia he had a false identity and had a British passport rather than his genuine Nigerian passport, he was deported to the United Kingdom whereupon he claimed asylum.
8. Before the adjudicator was a report from Dr Oyetade, a lecturer in the Yoruba language and culture at the School for Oriental and African Studies at the University of London. A point was raised in the skeleton argument to the adjudicator upon Decree 33, the effect of which, it is submitted, is that under Nigerian law a person convicted in other countries of drug offences is liable to further punishment in Nigeria for bringing Nigeria into disrepute.
9. In her skeleton argument to the adjudicator, Miss McCann, who appeared for the applicant then as she does upon this application, referred to Decree 33 and submitted (in paragraph 11) that, by reason of the double jeopardy involved, it constitutes a breach of the applicant's rights under Articles 5 and 6 of the Convention, but not Article 3. The skeleton argument concludes with paragraph 12 where a comprehensive allegation is made about the "harsh and life threatening prison conditions" in Nigeria. It is suggested that detention in Nigeria would constitute a breach of the applicant's rights under Article 3. No particulars are given of the material upon which reliance was placed to support that sweeping assertion, although I accept that the relevant reports were properly placed before the adjudicator and detailed submissions made by counsel on the applicant's behalf. The only particularity in paragraph 12 was in relation to the ill-health of the applicant, and a particular section of a US State Department Report is mentioned where the question of the treatment of sick prisoners is considered.
10. Dr Oyetade did not know whether Decree 33 was in force. The researches of Miss McCann were not able to conclude the matter but, plainly, the adjudicator accepted that probably the decree was in force. The detail given by Dr Oyetade is in relation to an earlier decree, Decree 2, which is not in force. However, in the concluding sentence of his report, and without particulars, Dr Oyetade states that:

"If decree 33 is still in force, it is likely that your client will have to serve his term for this offence once he returns to Nigeria."

11. A good deal of the argument before the adjudicator, and later before the IAT, turned on the question whether Decree 33 was likely to be invoked in the case of a return to Nigeria by the applicant. On that question the adjudicator formed one view and the IAT, upon consideration, has formed a different view.
12. The reasoning of the adjudicator in relation to the breach is contained in paragraph 36. At that point the possibility of ill treatment arises within the meaning of the ECHR:

"Mr Ngene is not a well man. He needs treatment for his stomach ulcers, which he is currently receiving in his detention centre. The US State Department Report and the IND Report detail the appalling and inhuman conditions in Nigerian prisons. In addition the US State Department Report refers to routine denial of bail, denial of access to counsel, lengthy pre-trial detention in inhuman conditions, corruption and bribery at all levels of the trial procedure. I accept Mr Ngene's evidence that he is not a drug user and that he has not been involved in any conspiracy. He has not had a history of conviction for drugs offences. On the contrary, he is a young man who has had more than his share of bad luck. There would be no public interest served in prosecuting him under decree 33."

13. I find the reasoning in that paragraph, which led to the conclusion in the following paragraph already recited unsatisfactory. As Miss McCann has to accept, it is not relevant that the adjudicator believed the applicant to have been wrongly convicted in Slovenia. It is not relevant that he has had more than his share of bad luck; it is not relevant that there would be no public interest served in prosecuting him under Decree 33. I accept Miss McCann's submission that there is some relevance in the reference to the ill-health of the applicant, although, as expressed, it appears to me more by way of a plea for leniency than a statement in support of the very sweeping allegations contained in the following two sentences. The sweeping assertions do contain references to the reports relied on by title, but there is no spelling out of those parts of the report on which reliance is placed, and no attempt to analyse the contents of the reports, especially having regard to the improvement which, it is common ground, has occurred in the administration of justice within Nigeria since 1997.
14. Looking at the adjudicator's reports on its merits, in my judgment there is a very real risk that in her conclusion the adjudicator has had regard to irrelevant considerations. Paragraph 36 reads rather as a plea in mitigation than an analysis of reasoning which could properly lead to a conclusion that the very serious allegation against all prison conditions in Nigeria could be justified.
15. In relation to the likely application of Decree 33, the adjudicator did come to the conclusion that it would be likely to take effect. That is a necessary part of the reasoning to the conclusion because, even if the sweeping assertion in relation to Nigerian prisons is justified, it could only arise in this case if there was a real possibility that, on return, the applicant would go to a Nigerian prison.
16. The IAT took a different view both on the question of causation and upon the conditions in Nigerian prisons. They had the same background documents before them as has been before the adjudicator. They took the view that there was not a serious likelihood that the applicant would be questioned and admit his conviction in Slovenia. They refer to the fact that the applicant had had a false identity in Slovenia so, as they put it:

"The most crucial element of this case is that the Slovenian authorities did not and do not know the true identity of the respondent either at the time of trial or conviction or thereafter. He was tried, convicted, imprisoned and deported in his false identity as a British national and not in his true identity as a Nigerian national."

17. The IAT go on to reason that in the circumstances and in their opinion:

"...he will be treated in the same way as an ordinary Nigerian who was perhaps refused asylum in Britain and was being returned to Nigeria."

18. To show any causative effect of Decree 33, the applicant has to show that the decree is in force. From further information, to which I will refer, there is now evidence that it is in force. He also has to show that, on his entry, there is a real possibility that the Slovenian offence would be discovered, that Decree 33 would then be applied and that imprisonment would result. On that question the IAT took, as they were entitled to take, a different view from that of the adjudicator. They also rejected in summary terms the adjudicator's finding in the two sentences I have quoted in paragraph 36 as to the conditions in prisons in Nigeria.
19. In her detailed and persuasive submissions on behalf of the applicant, Miss McCann submits that the findings of fact of an adjudicator should not routinely be reversed by the IAT. She accepts that they are entitled to reverse them, but she submits that, if they do, they must show why they disagree with the adjudicator. She submits that their judgment in this case does not reveal any proper investigation by them of the material, and that there should at least be a remission of the entire matter to the Tribunal so that proper factual inquiries can be made.
20. Before expressing conclusions on that point, I refer to the further point made by Miss McCann, although she stated that it was not her best point, that there was a procedural defect in proceedings before the IAT in that the grounds of appeal did not specify the point which emerged before the IAT as being the point in issue, and that the Home Office should not have been permitted to produce before the IAT the letter from Nigerian lawyers spelling out the situation in relation to Decree 33. In my judgment, in their discretion, the IAT were entitled to approach the matter as they did, although it would have been helpful had they given a specific ruling on the question rather than, as it appears, to assume it against Miss McCann who had made the appropriate submissions to them.
21. I have referred to the skeleton argument before the adjudicator. That related Decree 33 to Articles 5 and 6, and did not put the Home Office on notice as to what in the event emerged, that the conjunction of Decree 33 and Article 3 would be a matter of importance to the adjudicator. The adjudicator did spell out that no information from the Home Office on Decree 33 had been provided. In my judgment, the IAT could not in the circumstances, when on the Article 5 and 6 points the applicant had failed, necessarily be required to exclude the further material concerning Decree 33. I would add that the effect the fresh material had on the eventual decision was probably very limited.
22. The force of Miss McCann's submission, and at this stage she has only to show an arguable case, is that the adjudicator is the primary fact finding body. However, regard must to be had to the adjudicator's conclusion and the manner in which it was reached. I have made criticisms of the reasoning which led to the conclusion. Not only are irrelevant matters taken into account, but also there is no particularisation of the defects in the Nigerian prison system which had led to the sweeping assertion in paragraph 36. Nigeria is of course a friendly commonwealth country.
23. Miss McCann confronts the point that, if she is right in upholding the decision of the adjudicator, anyone who is liable to be returned to Nigeria, and there is a real possibility that that person will be detained there, can avoid removal by reliance upon Article 3. In my judgment, if the adjudicator reaches such a conclusion, and if the IAT are to be put in a position where they are not entitled readily to reverse it, careful reasoning should be set out.
24. The point is fairly made that the IAT had not reasoned the matter either. That point would have had force if there had been a reasoned decision from the adjudicator. It has far less force in my judgment when the judgment of the adjudicator contains only the assertions in paragraph 36 to which I have referred and a bare reference to the reports upon which reliance is purported to be placed.
25. In my judgment, the conclusions of the IAT on both points were justified, and it is not arguable that they would be reversed in this court. First, they were entitled to reverse the finding as to prison conditions in Nigeria:

"We do not find any evidence to satisfy us that the respondent would be seriously likely to be subjected to inhuman or degrading treatment contrary to Article 3 of the ECHR were he to be returned to Nigeria."

26. Secondly, they were entitled to reach their conclusion on the question of causation. They were entitled to analyse the evidence using their common sense and their knowledge of procedures, and they were entitled to conclude that there was no real risk that in this case Decree 33 would be applied in the circumstances. They commented that the adjudicator felt a lot of sympathy for the respondent and his assertion that he had been unjustly or wrongly convicted in Slovenia. They were entitled to comment, in my judgment, and it was moderately stated, that they were "somewhat concerned about this aspect of the adjudicator's approach to evidence".
27. It is not arguable in my judgment that this court would reverse the decision of the IAT. For the reasons I have given, I would refuse this application.
28. LORD JUSTICE LATHAM: I agree.
Order: Permission to appeal refused.