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 L Waumsley

		Royal Courts of Justice Strand London, WC2
		14 September 2004

1. LORD JUSTICE MAURICE KAY: The appellant is a citizen of Eritrea. He was born on 24 August 1986 and has therefore just passed his 18th birthday. He arrived in the United Kingdom on 14 April 2002 and claimed asylum on the following day. The Secretary of State refused his application on 10 June 2002.
2. The subsequent procedural history is that an appeal to an adjudicator succeeded on 1 November 2002 on both asylum and human rights grounds. However the Secretary of State then appealed to the Immigration Appeal Tribunal which, on 15 October 2003, allowed the Secretary of State's appeal. The Immigration Appeal Tribunal refused permission to appeal to this court, as did Lord Justice Keene upon a consideration of the papers on 18 May 2004. However on 24 June 2004, following a renewed oral application, Lord Justice Laws granted permission to appeal albeit with some hesitation.
3. The appellant's account of his life in Eritrea was accepted by the adjudicator and thereafter by the Immigration Appeal Tribunal. That account was as follows. The appellant's father had been a fighter with the ELF. After the defeat of the ELF the father had surrendered to the Ethiopian authorities and gone to Asmara. He maintained membership of the ELF. It seems that he had a business involving the import and export of textiles. This enabled him to move between provinces and to liaise with other ELF supporters. His shop was used as a base for ELF activities. These continued after the liberation of Eritrea by the EPLF, a rival organisation.
4. The appellant was gradually inculcated into his father's political ideas and activities. These included opposition to the ruling EPLF. In due course the appellant would be entrusted with carrying out various tasks for his father including the delivery of publicity materials which had been produced at their home and the passage of them on to agents. During the war with Ethiopia there were various meetings in the family home. Posters and leaflets were distributed opposing the war. The government began to crack down on opposition activities. The appellant, along with others, continued to distribute materials in public places at night and in the daytime at his school.
5. In February 2002 the family home was raided by the security forces. The appellant's father was shot dead on that occasion. Photocopying equipment was discovered and destroyed. Documents and leaflets evidencing support of the ELF were discovered. The appellant, his mother and his siblings were all arrested but they were then separated. He was detained for about two weeks in the course of which he was interrogated and beaten with batons, rods and rubber whips. One night he was told to board a lorry that was taking prisoners to another location. They heard gunfire and a fight broke out. The prisoners jumped out and ran away. As the appellant ran away he was knocked down. He realised that his captors were part of the group that had attacked the lorry. He told them of his father's activities in the past and about the ELF. They took him with them to Sudan. He told these people that his father had a friend and trading partner in the area. With their assistance he managed to find the friend who told him that it was not safe for him to remain in Sudan. The Eritrean special forces were active in Sudan and were arresting and abducting those sought by the government. The friend therefore made arrangements with an agent for the appellant to leave Sudan.
6. The agent brought him to London. Since his arrival in London the appellant has become and remained a member of the ELF-RC (London Branch). That is the account that was accepted in full by the adjudicator and thereafter by the Immigration Appeal Tribunal.
7. It is apparent from a perusal of his determination that the adjudicator clearly considered the objective material that had been before him when assessing the credibility of the appellant's account. What is less clear is whether he considered it to any great extent when addressing the question whether at the time of the hearing the appellant had a current well founded fear of persecution on return. Of the material that had been placed before him the item which found specific mention in the determination of the adjudicator was the CIPU Report for 2002. It included this paragraph:

"5.68 There were unconfirmed reports that the Government continued to hold numerous members of the armed opposition group ELF. However members of the ELF-RC faction who left at the time of independence have since returned and been appointed as Governors (mayors) as part of the Government's efforts to integrate different sections of Eritrean society into the administration. ELF-RC members have taken up posts in government departments such as the Ministry of Information and the Ministry of Foreign Affairs since their return to Eritrea. Membership of the ELF-RC has not prevented them from returning to the country or playing an active role in government. The organisation is still active in exile, mainly in Sudan and Ethiopia and the government's reaction to returning members of ELF or ELF-RC will depend on the position held in the organisations and the type of activity undertaken. Those who had been responsible for anything that could be interpreted as terrorism or violence may be likely to come to the attention of the authorities."

8. When the Secretary of State obtained permission to appeal to the Immigration Appeal Tribunal two grounds of appeal were there advanced. One is no longer relevant. The second was to the effect that the adjudicator had failed to take proper account of the objective material on the issue of risk on return. As I have related, the determination of the adjudicator was promulgated on 1 November 2002. Accordingly the jurisdiction of the Immigration Appeal Tribunal was not limited to errors of law as it is in relation to determinations of adjudicators promulgated after 9 June 2003. The task of the Immigration Appeal Tribunal was that which has now been formulated by this court in Subesh, Neutral Citation No. [2004] EWCACiv 56, in which Lord Justice Laws, giving the judgment of the court, referred to "the true question" being "whether there are objective grounds which persuade the [Tribunal] that it ought to conclude that a different view from that taken below is the right one" (para 46).
9. In the judgment in Subesh specific approval was also given to the earlier decision of this Court in Indrakumar, [2003] EWCACiv 1677, to the extent that it observed that the Immigration Appeal Tribunal will be less diffident about interfering where the issue is as to the objective evidence as opposed to the assessment of the credibility of the asylum applicant. Before Subesh there was a tendency to formulate the test to be applied by the Immigration Appeal Tribunal as being confined to decisions of adjudicators that were "plainly wrong or unsustainable". As the Immigration Appeal Tribunal determined the appeal in the present case before the decision of this court in Subesh, it is not surprising that when allowing the Secretary of State's appeal it expressed itself in terms that the determination of the adjudicator was "plainly wrong and unsustainable". Clearly if it had applied the less exacting test propounded in Subesh it would have reached the same conclusion.
10. For the appellant to succeed in this court it is necessary for him to establish a material error of law on the part of the Immigration Appeal Tribunal. It is common ground that the appropriate course is for us to consider whether the Immigration Appeal Tribunal was entitled as a matter of law to take a different view of the objective evidence from that taken by the adjudicator and/or whether the Immigration Appeal Tribunal gave adequate reasons for its decision. I have already referred to the passage from the CIPU Report which had been considered relevant by the adjudicator who also noted from that report that the Eritrean Government has a poor human rights record, with some recent improvements but with serious problems remaining.
11. The conclusion of the adjudicator was expressed in these terms:

" ..... I believe the appellant is telling the truth when he describes what happened to him in Eritrea. I find that there is nothing in the objective material to contradict the appellant's story. Placing my finding in the context of the objective material ..... I am sure to the relevant standard that this appellant has a well-founded fear of persecution because of his involvement in the ELF and his past treatment in Eritrea. Further, I find that he is unable or unwilling to avail himself of protection in Eritrea because it is the security forces that detained and ill-treated him. I take into account all the background information and I take the view that there is not a sufficiency of state protection."

12. Having accepted the adjudicator's favourable finding on credibility, the Immigration Appeal Tribunal proceeded to address the objective material before it which was more recent than that which had been placed before the adjudicator. It included the CIPU Report for 2003 and more recent reports from the US Department of State and Human Rights Watch. There was also a report from an academic which had been prepared in connection with another person's appeal which was before the Immigration Appeal Tribunal and which had been before the adjudicator in the same form. It is abundantly clear from the text of the determination of the Immigration Appeal Tribunal that it duly considered all this material. It concluded that the passages relied upon by the present appellant from within the various reports were "all fairly general in nature" apart from one passage in the report of the academic.
13. In the event, the Tribunal placed particular reliance on the CIPU Report for 2003. Its terms differed from the CIPU Report that had been before the adjudicator. The relevant passages read as follows:

"6.93 The organisation is still active in exile, mainly in Sudan and Ethiopia and the government's reaction to returning members of ELF or ELF-RC will depend on the position held in the organisations and the type of activity undertaken. Those who had been responsible for anything that could be interpreted as terrorism or violence may be likely to come to the attention of the authorities.

6.94 ELF members have been encouraged by the government to return to Eritrea and have apparently not faced repercussions for their past activities. All those who have returned are thought to have renounced further opposition activities in favour of unity through the EPLF/PFDJ.

6.95 Although the ELF are quiet and are seen as largely irrelevant in Eritrea, it is believed that there may still be some active members of the ELF factions in Eritrea, especially on the Sudanese border or in the north of the country. They do not openly conduct opposition activities and a view was expressed in Eritrea to the UK fact-finding mission in November 2002 that many Eritreans feel that the various branches around the world exist only to make themselves money."

The Immigration Appeal Tribunal explained its reliance upon and preference for the up-to-date CIPU Report on the basis that the report was well researched and fully sourced throughout. It added:

" ..... it draws for its information on a number of normally reliable sources, and clearly attempts to provide a detailed and balanced assessment of the current situation in Eritrea. We are therefore satisfied that it provides a reliable, reasonably impartial and up-to-date assessment of the current general position there."

14. The question now, in the language of Subesh, is whether there were objective grounds which required the Immigration Appeal Tribunal to conclude that a different view from that taken by the adjudicator was the right one.
15. On behalf of the appellant, Mr Ferguson submits that the Tribunal did not specifically consider three factors: first, that the appellant had been detained after his activist father had been killed by the authorities; secondly, that having been detained and tortured the appellant had escaped from detention; and, thirdly that he had subsequently involved himself in the ELF in this country. These factors, it is suggested, would, if properly considered, lead to the conclusion that the appellant has a well founded fear of persecution.
16. I deal first with the final point concerning the involvement of the appellant in the ELF in this country. I consider it to be without merit. The evidence established no more than membership of the London branch. It did not point to that membership involving any activity which might have brought the appellant to the attention of the authorities in Eritrea. Mr Ferguson submits that it nevertheless has significance because it is evidence of an unwillingness on the part of the appellant to renounce the ELF. As Miss Anderson points out, that is more relevant when the returnee is seeking involvement in public life on return, such as election or appointment as a governor or mayor.
17. Having disposed of that point the question therefore becomes whether the Immigration Appeal Tribunal erred in law in concluding that this particular appellant, in view of his low level activity in Eritrea, would not be at risk of persecution on return to that country notwithstanding his previous detention, ill treatment and escape. Miss Anderson submits that none of the objective evidence pointed to a current risk of persecution as a result of past low level activity of the kind carried out by this appellant or as a result of being of the same family as an ELF activist, let alone one sadly deceased. It is also significant that there is no evidence that other members of the appellant's family, who were detained at the same time as the appellant but who have probably remained in Eritrea, have since been the subject of persecution.
18. It was the appellant's case before the Immigration Appeal Tribunal that the objective material supported the proposition that a person in his circumstances had a well founded fear of persecution. In my judgment, the Immigration Appeal Tribunal was entitled to conclude that it provided no such support, either expressly or by implication.
19. Mr Ferguson points to the time scale and the fact that the Immigration Appeal Tribunal was considering the case only 18 months or so after the terrible events of April 2002 which had precipitated the appellant's departure from Eritrea. He makes the submission on the basis that those facts speak for themselves and speak loudly in relation to future risk. Nevertheless the CIPU Report from 2003 can properly be described as the Immigration Appeal Tribunal described it.
20. In my judgment, it was not an error of law to place upon it the reliance which the Immigration Appeal Tribunal saw fit to place. For my part, I do not find any error of law either in the conclusion that this particular appellant does not have such a well founded fear of persecution or in the reasoning that led to that conclusion. On proper analysis of its determination, the Immigration Appeal Tribunal was not satisfied that the appellant had established his case to the requisite standard. I do not consider the reasons given for that conclusion to be inadequate.
21. I would dismiss this appeal.
22. LORD JUSTICE WALLER: I agree.
23. LORD JUSTICE THORPE: I also agree.

Order: Appeal dismissed