IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
IMMIGRATION APPEAL TRIBUNAL
(HIS HONOUR JUDGE AINLEY)
London, WC2A 2LL
B e f o r e :
LORD JUSTICE BUXTON
LORD JUSTICE SCOTT BAKER
|ANTONIO CABO VERDE||Claimant/Respondent|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||Defendant/Appellant|
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MR M WYNNE JONES AND MR SIMON CANTER (instructed by Messrs Trott & Gentry, 90-92 Islington High Street, London, N1 8EG) appeared on behalf of the Respondent
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"It will be apparent from the passages that I have read out that any person who is in the position of this particular claimant being returned to Angola must be at least at real risk of torture or other inhuman treatment. It is distasteful that the law of this country must sometimes provide protection for persons who otherwise richly deserve long sentences of imprisonment, such sentences as they would have unhesitatingly received in the courts in this country. However, the provisions of article 3 are mandatory. A person cannot be returned to a country where there is a real risk of torture or other inhuman treatment. So this claimant cannot be returned to Angola. We feel we are driven to the conclusion that this appeal must be allowed."
"As to the question of producing evidence that the accused, Cabo-Verde, was in Portugal between January and April 2002, it can be stated that at least the following witnesses can testify to that fact: Jose Oliviera, Eduarno Munez, Louis Vincente, all police officers. However the other co-accused have already been sentenced and, notwithstanding any appeal proceedings, what is certain is that it has been proven both by the statements of some of the co-accused and by police inquiries that the suspect, Antonio Sequel Cabo-Verde, was without a shadow of doubt in Portugal between January and April 2002, as can be confirmed by reading the attached copy of the sentence.
Therefore, in conclusion, it can be stated that in the time period in question the suspect was indeed in Portugal and that in the case under review this fact is corroborated not only by telephone interceptions carried out in Portugal, but also by the evidence supplied by the investigators, which is supported by the statements of the co-accused in the case that has already been heard."
"In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts whee the parties share an interest in co-operating to achieve the correct result. Asylum law is undoubtedly such an area. Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of the CICB case ( 2 AC 330). First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been 'established' in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the Tribunal's reasoning."
"Whatever the precise limits of this Court's power to admit new evidence in such cases as this, I have no doubt that we should do so where there is material which appears to show that the factual basis on which the Tribunal proceeded was, through no fault of its own, simply wrong."
Ward LJ agreed with both judgments.
"The particulars of the fraud must be exactly given and the allegation established by the strict proof such a charge requires."
Mr Wynn Jones says that in this case the particulars of the fraud are not established by strict proof because they still rest upon allegations. But the cases just overturned are exceptional, in the sense that they are not appeals, but original actions seeking to set aside (the only circumstances where that can be done) the decision of a court of collateral authority. That is why in those cases the fraud itself must be proved before the court can proceed.
Order: Application for permission to appeal allowed. The appellant's human rights application will be remitted to the Immigration Appeal Tribunal to be reconsidered de novo in the light of the new evidence. Detailed assessment of respondent's public funding certificate.