C4/04/1626(A) 
Neutral Citation Number: [2004] EWCA Civ 1726
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION) 
ON APPEAL FROM THE HIGH COURT
IMMIGRATION APPEAL TRIBUNAL
(HIS HONOUR JUDGE AINLEY)
Royal Courts of Justice 
Strand 
London, WC2A 2LL 

Monday, 6 December 2004
 
B E F O R E:

LORD JUSTICE POTTER 
 
LORD JUSTICE BUXTON 
 
LORD JUSTICE SCOTT BAKER 
 
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ANTONIO CABO VERDE
Claimant/Respondent
-v-
 
SECRETARY OF STATE FOR THE HOME DEPARTMENT 
Defendant/Appellant 
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MISS LISA GIOVANNETTI (instructed by The Treasury Solicitor, London, SW1H 9JS) appeared on behalf of the Appellant
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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J U D G M E N 

1.	LORD JUSTICE POTTER:    I will ask Lord Justice Buxton to give the first judgment. 
2.	LORD JUSTICE BUXTON:  Almost the only fact that is agreed in this appeal is that Mr Cabo-Verde, the respondent, arrived in this country on or about 16 May 2002 from Belgium and claimed asylum, not against return to that country but against return to Angola of which he is, ostensibly, a citizen.  
3.	His asylum claim was based upon the following allegations.  In about January 1998 the applicant had joined an organisation called FLEC.  This is an armed political wing of a party that seeks the independence of a northern province in Angola from the government of that state.  At the end of February 2001 he had been part of a group of about 20 soldiers who had been instructed to take prisoner a number of Portuguese nationals, which he duly did.  
4.	On 28 November 2001, the camp where he was staying was attacked by government forces.  He was captured and taken to prison, where he was tortured.  Various graphic accounts were given of stabbing, hitting with rifle butts, hitting and kicking.  Towards the end of December 2001 he was transferred from that prison, which had been in the province of Kabinda, to Luanda itself where he was also tortured.  By means of bribery effected by two members of his family he secured his release.  The date which was given on his behalf in extradition proceedings was 15 April 2002.  He went into hiding for a month, flew from Luanda to Belgium using a false passport and, as indicated, came directly from there to this country.  
5.	His application for asylum was rejected by the Secretary of State on grounds that it is not necessary to go into in detail, but which expressed a high degree of scepticism about the truth of Mr Cabo-Verde's account, more particularly in connection with the means by which he had been released from prison.  
6.	In his appeal to an adjudicator the adjudicator found, contrary to the Secretary of State's submissions, that Mr Cabo-Verde was a credible witness and, in substance, that the events that he had described had occurred.  In particular, and importantly, he found that Mr Cabo-Verde had indeed been tortured in the way he had alleged.  Nonetheless, the adjudicator rejected Mr Cabo-Verde's claim under the Refugee Convention on the basis of Article 1(F) of the Convention, in that he had committed serious offences in his country of origin.  He also rejected, in terms that were not wholly clear, an application under Article 3 of the European Convention on Human Rights.  
7.	Mr Cabo-Verde appealed to the Immigration Appeal Tribunal.  He did not pursue the matter of the Refugee Convention, but he did pursue the application under Article 3 of the European Convention on Human Rights, and was successful.  The Immigration Appeal Tribunal started from the base finding of the adjudicator that Mr Cabo Verde had told the truth when before the adjudicator.  That was not challenged on the part of the Secretary of State.  The Immigration Appeal Tribunal, on the basis of that material, was satisfied that a case had been made out under Article 3.  Paragraph 10 of the determination of the Vice President states:
"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."
8.	That was in December 2002.  On 9 October 2003 Her Majesty's Government received an extradition request in the name of Mr Cabo-Verde, not from the authorities in Angola, but from the authorities in Portugal.  It was alleged in that request that Mr Cabo-Verde had committed a number of serious offences, principally concerned with robbery or conspiracy to rob in respect of motor cars, in the months of January and February 2002.  In so far as his immigration status is concerned, the relevance of that is that it was exactly during that period that he had alleged in the immigration proceedings that he was detained and tortured in a prison in Angola.  
9.	The extradition request originally did not set out matters in very great detail, but because of its implications for the immigration question further particulars were requested from the Portuguese authorities. Those were principally contained in a letter from the office of the Attorney General of the Republic of Portugal, which gave some considerable details of three robberies which Mr Cabo-Verde had allegedly committed.  It alleged that documents relevant to those offences, including documents relating to or belonging to the victim of the offences, had been seized from an alleged co-conspirator of Mr Cabo-Verde at premises in Lisbon, said to be the residence of Mr Cabo-Verde.  The statement from the Attorney General's office then said in paragraph 7 and 8:
"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."
10.	The extradition request was received in the appropriate department of the Home Office on the 9 October 2003.  It did not find its way to the Immigration and Nationality Department until January 2004.  No doubt those handling it did not immediately appreciate that it raised serious questions about Mr Cabo-Verde's immigration status.  The Immigration and Nationality Department sought legal advice and then advised the Secretary of State in March 2004 effectively that the Secretary of State should return to this court, as now he does, to appeal against the decision of the Immigration Appeal Tribunal on the basis of the fresh evidence.  The Treasury Solicitor was accordingly instructed to lodge an appeal with this court on 18 March 2004.  It is accepted that that was not the proper procedure, because he should first have applied to the court below, as he was told by the office of this court on 4 April 2004.  That step was then taken.  
11.	On 21 April 2004 the Vice President of the Immigration Appeal Tribunal rejected the application for permission to appeal on the grounds that the tribunal did not have jurisdiction to extend time beyond the time for appeal against its decision: by then, as far as the tribunal was concerned, long since passed.  
12.	What then followed is obscure.  All that we know is that the document from the Immigration Appeal Tribunal did not reach the gentleman in the Home Office who was responsible for dealing with the matter until the end of July 2004.  It only reached him at all because he became concerned at not having heard anything from the tribunal, and made inquiries during the month of July as to the whereabouts of the decision, only to be told that it had been despatched to the Home Office on 21 April 2004.  Miss Giovannetti, for the Home Secretary, accepted that the most likely explanation was that the document had indeed reached the Home Office, as we were told from the bar that it reached Mr Cabo-Verde's advisers, and that it had got lost in those offices.  
13.	Nonetheless, when it came to hand, instructions were given to lodge this appeal on 28 July 2004, an appeal in which the Secretary of State seeks to have remitted to the tribunal its original decision of 2 December 2002.  The first question raised is the question of delay in pursuing the appeal.  Is it, as was suggested, a delay so serious that the appeal should not be heard, it being the case that at least the period of delay between 4 April and 28 July 2004 is not explained,  or that the only explanation given is not one which would assist the appellant. 
14.	We hear this appeal on the basis of a permission to appeal granted by this court on 27 September 2004.  It is clear from what was said by the constitution of this court that dealt with that matter, and from the transcript that we have of the judgment and from what we have been told from the Bar, that the matter of delay was squarely before that constitution.  In my view it is not now open to this court to re-open the question of whether this appeal fails in limine.  If that latter were the case, permission to appeal would not have been granted. 
15.	There sill remains what discretionary view this court should take of the delay.  I would not undervalue or diminish the importance of prompt applications to this court, not least where what is sought is to set aside a decision originally given in favour of the liberty of the subject.  But, in any discretionary determination, the seriousness of the allegations that are made against Mr Cabo-Verde must necessarily be weighed in the balance.  If what is claimed in the Portuguese material is correct, not only is Mr Cabo-Verde not somebody who should benefit from the claims that he made, but also the Immigration Appeal Tribunal in considering his case was seriously misled.  We therefore turn to the question of whether the court should remit this matter for rehearing in the light of the material from Portugal.
16.	Mr Wynn Jones, who has appeared for Mr Cabo Verde, says this is not a question of further evidence.  The material that has come from Portugal, which is all that is currently before the court and which I have sought to summarise, is not evidence.  It has only the status of allegation.  That would be the correct and relevant (and I would so go so far as to say unavoidable) argument if this court's role at present were to rehear the case on its merits.  But that is not the task upon which we are currently embarked.  We have to consider whether this is a case where, on the basis of fresh evidence, the matter should be remitted to the tribunal, which does have the role to determine the merits.  In that connection we were taken to the familiar authority of E and R v Secretary of State for the Home Department [2004] QB 1044.  It is not necessary to set out the background of that well-known case.  I turn to paragraph 66 relied on by Miss Giovannetti where this court said:
"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 ([1999] 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."
17.	Miss Giovannetti says that the mistake of fact in this case is as to the availability and existence of the Portuguese allegations and the events to which they related; events which, as we have seen, were current in the year 2002.
18.	It is the existence of the allegations that was uncontentious.  They were objectively verifiable: as opposed to the truth of the material to which they relate.  That that circumstance falls within the jurisdiction of the court is further reinforced by a passage in paragraph 87 of the judgment in E, referring to the case of Khan v Secretary of State [2003] EWCA Civ 530, where Carnwath LJ, agreeing with the lead judgment of May LJ, said:  
"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.   
19.	I would adopt that observation to this case.  There is in this case material which shows that the factual basis upon which the tribunal proceeded was, through no fault of its own, simply wrong, in that the tribunal were unaware of the involvement of the Portuguese authorities in investigating the affairs of Mr Cabo-Verde.  That being so, fairness (by which I mean fairness to a proper and rational immigration policy) clearly demands that the whole facts of this matter should be before the Immigration Appeal Tribunal.  It is for that tribunal to decide the effect of whatever material it has before it relating to Mr Cabo-Verde's alleged activities in Portugal, and the efforts of the authorities of that country to control them.  
20.	Mr Cabo-Verde, no doubt, will wish to give further evidence on that matter, and it will be for the tribunal to assess that evidence.  This therefore is an appeal based upon the present and fresh evidence.  Although that evidence, if correct, establishes that the Immigration Appeal Tribunal was misled, and that therefore its judgment was obtained by fraud, it is important to emphasise that this is not an application as such to set aside the judgment of the tribunal on the grounds of fraud.  Such an application, or something like it, was before Moses J in the case to which we were taken of Asur Saribal v Secretary of State for the Home Department [2002] EWHC 1542 (Admin).  In that case the Secretary of State sought to issue a notice to remove, contrary to a decision not appealed by him, of, the Immigration Appeal Tribunal, on the basis that that decision had been obtained by fraud.  Because the nature of the proceedings was to override the decision of the IAT, the standard was that provided by courts in cases where applications are made to set aside the judgment of the court.  Examples of that are, in the administrative sphere, R v Ashford, Kent, Justices, Ex parte Richley (No 2) [1956] 1 QB 167, and in the civil sphere Jonesco v Beard [1930] AC 298.  There Lord Buckmaster said:
"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.  
21.	But in our case all that has to be established is that relevant evidence was not before the lower tribunal, as in E and R.  That, in my view, is plainly established.  It would be a sorry day if it were not possible now to revisit the matter in the light of the full facts and allegations as they are now known.  
22.	I would therefore remit this case to the Immigration Appeal Tribunal with a direction to reconsider it in the light of such material as either party now wishes to place before it with reference to events in Portugal.  In the light of a brief discussion in the course of argument, it may or may not be necessary formally to quash the original decision of the Immigration Appeal Tribunal, in order to achieve that outcome.  But, for the avoidance of doubt, the Immigration Appeal Tribunal hears this matter de novo, bearing in mind the evidence that it has already heard but not being constrained by its original decision if, on the totality of the evidence, it properly takes a different view.  
23.	I would also add that, in my view (although this will be a matter for those who have to deal with the proceedings), the existence of further proceedings in the Immigration Appeal Tribunal should not in any way delay the extradition process which is now in hand.  The question in the extradition process is simply whether Mr Cabo-Verde should be extradited to Portugal, which is not the country where he fears persecution.  The country in which he fears persecution and to which he does not wish to go on immigration grounds is Angola.  The extradition proceedings should progress in my view without reference to that fact.  
24.	For those reasons, I would allow this appeal.
25.	LORD JUSTICE SCOTT BAKER:  I agree. 
26.	LORD JUSTICE POTTER:  The appeal will be 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 evidence now available. 
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.