C1/2003/1402 & C1/2003/2451
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION
London, WC2A 2LL
B e f o r e :
LORD JUSTICE LAWS
LORD JUSTICE MAURICE KAY
| Subesh, Suthan, Nagulananthan and Vanniyasingam
|- and -
|The Secretary of State for the Home Department
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Miss Rhiannon Crimmins (instructed by MK Sri & Co) for Vanniyasingam (4th appellant)
Miss J Anderson (instructed by TheTreasury Solicitors) for the Secretary of State for the Home Department
Crown Copyright ©
Lord Justice Judge: Lord Justice Laws will give the judgment of the court.
Lord Justice Laws:
"… [I]n the present situation and having regard to the present trends it is only the exceptional cases [sc. of failed Tamil asylum-seekers from Sri Lanka] that will not be able to return in safety."
This second issue appeared to consist in the question whether (in a Tamil case) an Adjudicator's failure to refer to the Jeyachandran decision, or his failure clearly to follow what has been referred to – with scant regard to the hurt done to the English language – as the "exceptionality" test prescribed in that decision, would amount to an error on the Adjudicator's part so as to justify the IAT's intervention on appeal. It will be necessary to set out fuller citations from the text of Jeyachandran, and we will do so directly. But we should say at this stage that on reflection this putative second issue is not, in our judgment, a separate issue at all. It serves only as a concrete instance by which to illustrate the first or (as we shall now call it) the primary issue.
THE BACKGROUND: JEYACHANDRAN
"… someone who if returned to Sri Lanka, will be likely to be recognised when his identity is examined on return as someone who is wanted by the authorities. Until recently that would have undoubtedly have created a real risk of some lengthy interrogation… and there would have been a real risk that he would be tortured in the course of that investigation.
4. The question for us is whether the recent changes in Sri Lanka have altered that situation… [T]here is ample material which supported the view that the time the Chief Adjudicator reached his conclusion the process of investigation of someone who was suspected of involvement with the LTTE was likely to involve torture. That would be so if there were substantial grounds for believing that such an involvement had taken place, and there were in this case such grounds, whether or not the involvement was willing.
5. The situation has changed in recent months. There was a ceasefire in February of this year and the most recent CIPU report for April 2002 records some of the relaxations that have occurred since that ceasefire. Paragraph 3.67 notes that in April 2002 the LTTE opened a political office in a Government held area in the north of the country and that that had been inaugurated under the ceasefire agreement. There had been permission for LTTE cadres wearing cyanide capsules to move back to an LTTE controlled area and those who were clearly recognised as being LTTE activists were permitted to move around unmolested. On 13 April the LTTE signed a pact with the Sri Lankan Muslim Congress and agreed that nearly 100,000 Muslims expelled from the north by the Tamil Tigers would be allowed to return. All this indicates a change of the situation and gives hope that the situation will stabilise to such an extent that the persecution which has existed in the past and the havoc created by the civil war will cease. The likelihood of any difficulties on return has also been considered by a fact finding mission to Sri Lanka which visited that country at the end of March this year and those involved discussed the situation with among others the Director and the Senior Superintendent in the Criminal Investigations Department. The report records that if a returnee were not wanted he would not be stopped at the airport. We underline 'if a returnee were not wanted' because there is of course a finding in this case that the appellant was wanted. He went on a computer which holds the name, address and age of a wanted man. The police purely go on records, scars would not make a difference and the authorities would not make a decision on that basis."
Having in paragraph 6 concluded that the appellant, being on a wanted list, would if he were returned be stopped and questioned at the airport, Collins J continued:
"7. We note that the UNHCR has indicated that although in general it may be that asylum seekers can properly be returned and that scarring was perhaps not a significant factor, nonetheless it could not be accepted that there was even now no risk to anyone. The situation is still somewhat fluid, although there are reasons to be optimistic. The fact is that this ceasefire has only been in place for a relatively short period and the authorities are still interested so far as we are aware, and it would be surprising if they were not, in those who may have been involved in active assistance of the terrorists in the past. There are signs from reports that there is still a degree of mistrust and suggestions that the Tigers are taking some opportunity to regroup and possible even to re-arm. Whether that in fact will result in as breakdown of the ceasefire in due course we do not know. We hope that it will not but we cannot at this stage be sure about it.
8. The reality is in our judgment that it is as yet premature to accept that everyone who has claimed asylum in this country would be able to return safely. We certainly are of the view that in the present situation and having regard to the present trends it is only the exceptional cases that will not be able to return in safety. The question is whether this appellant is such an exceptional case. In our judgment he is for the reasons that we have indicated, namely that he is someone who is wanted and is someone in our view who must be wanted in a relatively serious fashion… [W]e do not believe that there is indeed a real risk that the scars themselves would have resulted in any danger. However we have to have regard to the scars in conjunction with the fact that he was on a wanted list. They are in that context of perhaps some marginal relevance.
9… It is still too early to be satisfied that the situation has changed to such an extent that there is now no risk to anyone. Equally we take the view that there are few who would now be at risk, but it is necessary always to consider the circumstances of each individual case. That can only be done by considering the facts of that individual case against the information that exists at the precise date on which the Adjudicator or the Tribunal has to reach a decision. If things are seen to be improving the time may well come and may well come soon when it can be said that all can be returned. Equally it may be unfortunately that things do not turn out quite so well…"
And the IAT allowed the appeal on its particular facts.
THE FACTS IN THE INDIVIDUAL CASES
THE PRIMARY ISSUE: WHAT IF ANY ARE THE CONSTRAINTS OR RESTRICTIONS UPON THE POWER OR DUTY OF THE IAT TO OVERTURN CONCLUSIONS OF FACT ARRIVED AT BY THE ADJUDICATOR?
The Statutory Provisions
"1. Any party to an appeal… to an Adjudicator may, if dissatisfied with his determination, appeal to the Immigration Appeal Tribunal.
2. The Tribunal may affirm the determination or make any other determination which the Adjudicator could have made."
It is useful also to notice paragraph 23(1), which confers this court's jurisdiction in these cases:
"If the Immigration Appeal Tribunal has made a final determination of an appeal… any party to the appeal may bring a further appeal to the [Court of Appeal] on a question of law material to that determination."
"An application for leave to appeal shall be made by serving upon the Tribunal the appropriate form, which shall –
(iii) identify the alleged errors of fact or law in the Adjudicator's determination which would have made a material difference to the outcome…"
How the Primary Issue Arises
The Primary Issue Confronted – the Authorities
"… doubtless, where a question of fact has been decided by a tribunal which has seen and heard the witnesses, the greatest weight ought to be attached to the finding of such a tribunal. It has had the opportunity of observing the demeanour of the witnesses and judging of their veracity and accuracy in a way that no appellate tribunal can have. But where no question arises as to truthfulness, and where the question is as to the proper inferences to be drawn from truthful evidence, then the original tribunal is in no better position to decide than the judges of an appellate court."
Lord Halsbury proceeded to make it clear that although he differed from the court below, that was not on the basis that the credit of the witnesses who had given evidence in the Scottish courts fell to be impugned. The only other speech to which with respect it is necessary to make reference is that of Lord Davey, who put the matter somewhat differently than had the Lord Chancellor. Dealing with the submission for the respondent that the House would not overturn concurrent findings on a question of fact made by the courts below, he said (82 – 83):
"In the case of the Owners of the P. Caland and Freight v Glamorgan Steamship Co.  AC 207, 215 Lord Herschell is reported as saying:
'Now I quite agree with what has been said in this House in previous cases as to the importance of not disturbing a mere finding of fact in which both the Courts below have concurred. I think such a step ought only to be taken when it can be clearly demonstrated that the finding is erroneous…'
My Lords, I do not disagree with what was thus stated, if it be regarded merely as a guide to the judgment of the tribunal and not as a rule of law or practice. In all cases your Lordships should and would pay the greatest respect to the concurrent findings on a question of fact of two Courts. When the question depends on the credibility of witnesses the opinion of the judge who heard the evidence would in most cases be conclusive. In every case the appellant assumes the burden of shewing that the judgment appealed from is wrong, and when it depends on an estimate of probabilities or inferences so nicely balanced that it is impossible to say that a decision either way would be wrong, every material fact having received due consideration, your Lordships would, I make no doubt, be disposed to affirm the concurrent decision of the Courts below…"
" Before us it was accepted on behalf of the Secretary of State that the Tribunal should act even-handedly and should only set aside a decision of an adjudicator who has heard the evidence if it is plainly wrong or unsustainable…"
"13. There is… room for some debate about nuances of meaning between terms such as 'wrong', 'plainly wrong', 'clearly wrong', or 'unsustainable'. But consideration of all of those cases and the principles which they adopt leads me to the following propositions:
(1) The [IAT] is not different from this court or any other court with jurisdiction to hear appeals on fact as well as law…
(2) The [IAT], like this court or any other court, can only interfere if there has been an error: that is, if, on analysis, the adjudicator's decision was wrong… It is not enough that the [IAT] might have reached a different conclusion itself.
(3) I… do not find adverbs such as 'plainly' or 'clearly' wrong helpful in the context of a fact-finding exercise. They have sometimes proved useful for appellate courts when reviewing the exercise of a discretion.
(4) The test is the same, whatever the nature of the error alleged, but its application will often depend on the type of evidence on which the finding of fact is based. One can distinguish at least four different types:
i) There are findings of fact based on oral evidence and the assessment of credibility. These can only very rarely be overturned by an appellate Tribunal.
ii) There are findings based on documentary evidence specific to the individual case. These can be more readily overturned because the appellate tribunal is in just as good a position to assess it. But even there there may be an important relationship between the assessment of the person involved and the assessment of those documents. If so, great caution once again will be required.
iii) There are findings as to the general conditions or the backdrop in the country concerned which will be based on the objective country evidence. The [IAT] will be at least as well placed to assess this as is the adjudicator. Although in our law the notion of a factual precedent is, as Laws LJ termed it in S and Others v Secretary of State for the Home Department  INLR 416 at paragraph 28, 'exotic', in this context he considered it to be 'benign and practical'. There will be no public interest and no legitimate individual interest in multiple examinations of this backdrop at any particular time once that had been considered in detail and guidance is given by the [IAT].
iv) There are findings as to the application of those general country conditions to the facts of the particular case. These will be an inference to be drawn by the adjudicator and then, if appropriate, by the [IAT]. The [IAT] will be entitled to draw its own inferences, just as is the appellate court under the CPR, once it has detected an error in the adjudicator's approach.
14. How should those principles be applied to this case? The question, as I have already indicated, is whether the [IAT] was simply taking a different view from the adjudicator. If that were the case that would be an error of law on the part of the [IAT], with which this court could interfere. On the other hand, was the [IAT], having found an error in the adjudicator's approach, simply substituting its own inferences for those drawn by the adjudicator? This is something that the [IAT] is entitled to do and this court cannot interfere."
"The powers of the adjudicator and the [IAT] are… very wide. They are both entitled to hear evidence and come to conclusions of fact which may or may not accord with the conclusions respectively of the respondent and of the adjudicator. They can accordingly correct errors of fact or of law made in the decision appealed against. As a matter of general practice, however, the [IAT] does not often hear any new evidence, and is content to accept the findings of the adjudicator as to fact unless the adjudicator was plainly wrong. The approach of the [IAT] to cases where the facts or inferences to be drawn from the facts are in issue has been considered very recently by this court in Indrakumar… I do not consider that it is necessary for the purposes of this judgment to repeat what was said by Hale LJ in that case. She sought to reconcile what were apparently divergent or conflicting dicta as to the scope of appeals to the [IAT] in such cases."
We should also cite this passage from paragraph 19 of Latham LJ's judgment:
"… [O]ne of the functions of the [IAT] is to review decisions of different adjudicators in order to secure a consistency of approach. In carrying out that function, although the [IAT] would necessarily hesitate before interfering with the decision of an adjudicator, it is bound to do so if it considers that the decision is wrong. That does not mean that every decision by an adjudicator in a doubtful case must be the subject matter of an appeal to the [IAT]. Leave to appeal will only be granted in a case where it was shown to be arguable that there was an error in the way the adjudicator assessed the issue."
"While in our general law this notion of a factual precedent is exotic, in the context of the IAT's responsibilities it seems to us in principle to be benign and practical. Refugee claims vis-à-vis any particular State are inevitably made against a political backdrop which over a period of time, however long or short, is, if not constant, at any rate identifiable. Of course the impact of the prevailing political reality may vary as between one claimant and another, and it is always the appellate authorities' duty to examine the facts of individual cases. But there is no public interest, nor any legitimate individual interest, in multiple examinations of the state of the backdrop at any particular time. Such revisits give rise to the risk, perhaps the likelihood, of inconsistent results; and the likelihood, perhaps the certainty, of repeated and therefore wasted expenditure of judicial and financial resources upon the same issues and the same evidence."
The Primary Issue Confronted – Conclusions
THE INDIVIDUAL APPEALS
"I have considered the recent developments with anxious care. During the hearing I wondered whether the government's understandable anxiety not to upset the peace process would lead to a more liberal and less oppressive approach to returnees: they would hardly want to inflame the situation by arresting low-level LTTE activists. However on reflection I think that it is too soon to say. It takes a long time for government thinking to reach the operatives at street level and previous official liberalisation and concern for human rights has not yet led to the elimination of abuses."
The IAT (paragraph 8) cited this paragraph of the Adjudicator's determination. Then at paragraph 11, we find this:
"We are bound to say that we reach the conclusion that things have moved on even since Jeyachandran was decided. The ceasefire has continued… We have considered the particular circumstances of this Respondent and we have reached the conclusion that he would not be at risk if he was returned. The government's attitude in Sri Lanka has changed in respect of the LTTE. Indeed, the LTTE have been allowed to open offices in Jaffna and elsewhere. We have not heard of any ill-treated Tamil returnee to Colombo since February 2002… In this case we are merely considering the circumstances of a low-level supporter of the LTTE… It would seem to us that the only difficulty that he might face would arise from the fact of his escape. The Adjudicator has taken the view that this escape would be a matter of record and on his return he would be sent back to the army and then ill-treated… We consider that the improvements in the situation in Sri Lanka… are such that the authorities there would have no interest in the Respondent if he returned…"
"The facts of the Respondent's case do not make him an exceptional case even taking into account his escape from army custody and the perception of the authorities that his father was involved with the LTTE… [O]n return and because of his temporary travel documents the Respondent is likely to be identified as a returning failed asylum seeker who will be stopped and questioned. It is possible that… he may reveal that he was given military training by the LTTE… [T]he other country information show[s] that the ceasefire is holding and that the negotiations, which it is hoped will lead to a peaceful settlement, are continuing. The country information to which [counsel for Subesh] directed our attention does not support his submission that an individual involved in the conflict at such a low level as the Respondent would be at risk of detention and torture on return. Notwithstanding his escape from custody he is not likely to be a wanted man. In the light of paragraph 6.61 of the Country Assessment his scarring is not likely to be as serious a factor as was often considered to be the case before the ceasefire. Even if the authorities became aware of his scarring it is not likely to make a material difference or, even combined with his other characteristics, result in detention, serious ill-treatment or torture."
"Given that this appellant is a young male Tamil who has significant scarring on his body and who was previously detained by the Sri Lankan authorities and escaped from custody, I find in those circumstances, that he is at real and serious risk of being detained by the authorities at Colombo Airport and taken into custody… It is quite possible that the appellant's identity will come to light and the fact that he confessed to being involved with the LTTE. If further enquiries reveal that the appellant was, in fact, not just involved with the LTTE but actually a fighting member of the LTTE, it is almost certain that he will then be detained for a much longer period and will be subjected to interrogation and torture."
"8… We consider that the Adjudicator has not sufficiently considered the considerable improvements that have developed in Sri Lanka in the last twelve months. Indeed, the improvements continue and we note that the LTTE as an organisation have offices in Jaffna… The ceasefire continues… We cannot conclude that it is reasonably likely that this Respondent will face any difficulties on his return to Colombo… [T]the Respondent has not admitted that he was a fighting member of the LTTE. He was not charged or wanted. It is true that he was able to escape from the army but this must have been in the course of a somewhat confused situation. We do not think it is at all likely that the escape is a factor which would place him in any difficulties. We are not aware of any objective evidence which indicates that LTTE supporters or members have been subjected to ill-treatment on their return to Colombo, since March 2002… [The words 'since March 2002' are added in manuscript; but I understand it to be accepted that this is the IAT's own amendment.]
9. We take the view that even if the authorities in Colombo or elsewhere appreciate it [sic] that the Respondent was a member of the LTTE this would not put him into difficulties. We do not consider it is reasonably likely in his particular circumstances that he would be detained for a much longer period or would be subjected to interrogation or torture. We do not conclude that his scars are likely to place him in any difficulties. In short, we do not consider that this particular Appellant [sic] would be of any real interest to the authorities."
"Earlier advice from UNHCR has also focused on the fact that returnees may face arrest at the airport (however, in most cases they are released within a very short period of time. Others may be detained for a few days. If suspected of serious links with the LTTE, they may face long term detention). The situation today has eased on that account. Yet, questioning upon arrival continues to take place, and detention, too, may occur in certain instances."
Leaving aside any question as to the document's precise date, this does not to our minds disclose any conflict with what the IAT was saying. UNHCR say nothing here about ill-treatment or torture. The furthest it goes is the statement that persons "suspected of serious links with the LTTE… may face long term detention". And on a fair reading of the document (as Miss Anderson for the Secretary of State submitted in the context of the Subesh appeal), it rather appears that that observation is made in contrast to "[t]he situation today".
"12… In my view it is too early to reach a settled conclusion on the effect of the cease-fire. Such a view was taken by the President in Jeyachandran…
13. From my reading of the most up to date background material and Tribunal decisions I conclude that on return to Sri Lanka a failed asylum seeker may be stopped and questioned and that such may lead the authorities to make further enquiries as a result of which previous record [sic] is likely to be discovered. If somebody is believed to be a wanted man or to have been involved with the LTTE, there is a real risk of detention for a longer period and serious ill treatment which would amount to persecution or infringement of his Article 3 human rights."
There is no recognition here of Collins J's general statement in Jeyachandran (paragraph 8) that "it is only the exceptional cases that will not be able to return in safety".
"Having considered the submissions on both sides, we have concluded that the Adjudicator was wrong to treat this as an exceptional case in accordance with Jeyachandran, i.e. that 'he is someone who is wanted and is someone… wanted in a relatively serious fashion'. There is in our view insufficient evidence to warrant a finding that the Respondent is on a wanted list, and bearing in mind that scarring is now to a large extent a discredited issue we do not consider that his scarring is of such a nature as would be likely to bring him to the attention of the authorities."