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England and Wales Court of Appeal (Civil Division) Decisions
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LD (Algeria) v Secretary Of State For Home Department [2004] EWCA Civ 804 (30 June 2004)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2004/804.html
Cite as:
[2004] EWCA Civ 804
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Neutral Citation Number: [2004] EWCA Civ
804 |
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Case No:
C1/2003/2402 |
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL
DIVISION)
ON APPEAL FROM IMMIGRATION APPEAL TRIBUNAL
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Royal Courts of Justice Strand,
London, WC2A 2LL
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|
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30th June
2004 |
B e f o r e :
THE RIGHT HONOURABLE LORD JUSTICE JUDGE
THE RIGHT HONOURABLE
LORD JUSTICE TUCKEY
and
THE RIGHT HONOURABLE LORD JUSTICE
KAY
____________________
|
LD (Algeria)
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- and -
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Secretary of State for the Home
Department
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____________________
(Transcript of the Handed Down Judgment of
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)
____________________
R. Singh QC and E. Fripp (instructed by Wilson &Co) for the
Appellant
A. Hunter (instructed by Treasury Solicitor) for the Respondent
____________________
HTML VERSION OF JUDGMENT
____________________
Crown Copyright ©
Lord Justice Judge:
- This is the judgment of the Court.
- LD (Algeria) (the appellant) was born in March
1972. He is a national of Algeria. He arrived in the United Kingdom on 1st
September 1995, entering as a visitor with leave to remain for 6 months. On
30th October he claimed asylum. This claim was refused by the Secretary of
State for the Home Department (SSHD) on 14th August 1996. He appealed to an
adjudicator, who, after a hearing on 17th December 1997, found that he was not
at any relevant risk and dismissed his appeal in a decision promulgated on
18th May 1998 (the first adjudication). An application to appeal further to
the IAT was rejected on 30th June 1998.
- The appellant did not leave the United Kingdom, and
as far as we are aware, no steps were taken to remove him before 2nd October
2000, when the Human Rights Act 1998 came into effect. Thereafter he made a
further application, in effect arguing that his removal from the United
Kingdom would contravene his rights under the 1998 Act, and in particular
those arising under Articles 2, 3, 5 and 8 of the ECHR. This application was
rejected by the SSHD, by letter dated 19th September 2001. His subsequent
appeal (the second adjudication) was upheld. The determination was promulgated
on 28th October 2002. The SSHD was granted permission to appeal to the IAT.
This appeal was allowed by a determination promulgated on 9th September 2003.
- This is an appeal, with permission of the single
Lord Justice, from the determination of the IAT dated 9th September 2003.
The first adjudication
- The grounds of appeal from the August 1996 refusal
were prepared by legal representatives. Some three weeks before the hearing
before the first adjudicator, due to non-payment of their fees, the legal
representatives withdrew. At the hearing the appellant requested permission to
represent himself. The first adjudicator agreed to his request. The appellant
gave oral evidence in support of his claim.
- He described an attack on him in early 1995, in
which he was beaten up by a group of 5 or 6 students at the university. He was
being punished for the "crime" of having defended the use of the French
language at the university and organising a petition to have it re-instated in
the faculty of economics. After beating him, his assailants warned him that if
he continued these activities he would be killed. He took these threats
seriously, and complained directly to the police. Their response was that the
affair should be dealt with internally at the university. Accordingly, he
returned to his village. A group was formed to provide him with protection.
Nevertheless he received a series of anonymous telephone calls threatening his
family, which was frightened by the threats and told him that he should leave.
And that is what he did.
- The appellant told the first adjudicator that if he
returned to Algeria his life would be in constant danger. He would only
survive for a short period. The authorities would be looking for him and he
would be targeted and killed. He explained that simply by being an
intellectual, he was disobeying the government and Islamist fundamentalists.
He was pleading for the right to free expression, and to use several languages
including his own Berber language as well as French. However, by doing so he
had become a target for terrorists. He said that he had been told that he was
a mischief-maker, defying the Koran and God, and he deserved to die. If he did
not leave Algeria, or cease his intellectual activities, he would end up dead.
He said that he would prefer to die physically rather than intellectually.
- The appellant submitted and relied upon a statement
attacking the Home Office refusal letter. In essence, he complained that there
was no understanding of the realities in Algeria, in which innocent people
were being massacred. He also said that he had further documents which would
demonstrate that individuals using French in Algeria were being charged with
criminal offences. The only official language was Arabic, and as a Berber
activist, he was under threat. However he did not disagree that shortly before
he left Algeria, a Commission for Berber affairs had been created by the
Algerian government.
- We can take the essential conclusions directly from
the written determination by the first adjudicator, Ms S. Beg.
"I have not found the appellant entirely credible. I accept that
the appellant is committed to the reinstatement of the French language in
Algeria, and in particular in the Faculty of Economics of the University of
Tizi Ouzou.
The assault of the Appellant at the University in 1995 was
carried out by fellow students. Whilst the appellant said that he reported
it to the Police, he did not take up the matter to any great degree with the
University or assist them in tracking down his assailants. The Appellant's
attackers cannot be described as "Agents of Persecution" since the
Authorities in Algeria would not knowingly tolerate them or refuse to prove
unable to offer effective protection. The Country Information contained in
the file refers to action taken against Islamists by the Authorities.
The Appellant left the University and clearly abandoned his
campaign for the reinstatement of the French Language at the University. I
find that the Appellant could have availed himself of the protection of the
Algerian Authorities with regard to the further threat that received once he
went home to his family. I find that the Appellant was neither sought nor
targeted as he claims. I find that he made no effort to go and live in
another part of Algeria or change his telephone number. The Appellant said
in cross-examination that his brother was beaten up in 1980 for supporting
the Berber people. However, the Appellant accepted that after 1980 there was
an improvement and did not disagree with the Respondent's assertion that in
May 1995 the Algerian government created a High Commission for Berber
Affairs.
I find that the Appellant provided no documentary evidence to
support his assertion that the Consulates of France, Spain and Italy did not
issue Visas or if they did, it was certain periods in the academic year. The
Appellant gave that as the reason for his delay in leaving Algeria and for
obtaining a British Visa from the British Consulate in Tunis. I accept the
Respondent's view that in British diplomatic world the issue of visas is not
limited to specific times of the year.
Prior to coming into the United Kingdom, the Appellant had
travelled to France, Spain and South Africa. I find that the Appellant's
explanation as to why he did not claim Asylum on arrival into the United
Kingdom implausible. The Appellant said his life was quite normal before the
assault at University.
I find that the Appellant does not have a well-founded fear of
persecution for a Convention reason. I further find that the decisions of
the Respondent have been in accordance with the law and the Immigration
Rules."
The first appeal to the Immigration Appeal Tribunal (IAT)
- Grounds of appeal to the IAT were served. Legal
representatives were once more employed on the appellant's behalf. The grounds
for the proposed appeal included no relevant complaint about the procedure
before the first adjudicator, and made nothing of the appellant's possible
inability adequately to represent himself. In essence the first adjudicator's
adverse findings about the appellant's credibility, particularly in relation
to his failure to pursue his complaint to the police, and the university
authorities, were criticised. The application for leave to appeal was refused.
The determination reads:
"The special adjudicator heard oral evidence from the applicant,
whom she assessed as not credible on matters at the heart of his claim; the
applicant had every opportunity at the hearing to reply to the submissions
going to credibility made on behalf of the respondent. It is only rarely
that a tribunal will interfere with findings of primary fact by a special
adjudicator, and there is no basis for doing so in this case.
The special adjudicator appears to have considered all the
evidence before her … she properly directed herself as to the correct
standard of proof and applied it. The tribunal considers that the
conclusions of the special adjudicator are fully supported by the evidence.
Read as a whole the determination is a full, fair and reasoned review of the
applicant's case. There is no misdirection in law …"
- There was some dispute before us about the true
effect of the adjudicator's adverse conclusion about the appellant's
credibility. Certainly, she did not say that she disbelieved his evidence in
its entirety. Equally however, as her subsequent findings demonstrate, she did
not believe significant parts of the case he was supporting in evidence. In
our view the determination is clear enough. The adjudicator indicated those
parts of the evidence which she accepted, and those which she rejected. She
neither believed nor rejected it in its entirety, but she rejected the
essential foundations for the claim.
- The appropriate forum for an appeal against this
decision was the IAT. That of itself demonstrates beyond argument that the
later, second adjudication was not and could not be an appeal from the first
adjudicator.
- During the first adjudication, the ECHR was not
engaged. The question for decision was whether, if returned to Algeria, the
appellant would have a well-founded fear of persecution for a Convention
reason. As already indicated, the basis of his first claim was that his life
would be in danger and that he would be at risk of serious violence if he were
returned. In ordinary language that is not remote from torture, or inhuman or
degrading ill-treatment or punishment. As Auld LJ explained in R
(Bagdanacius) v SSHD [2003] EWCA Civ 1605, there is a
"broad symmetry between the asylum test of a well-founded fear
of persecution for an Asylum Convention reason and the Article 3 test of a
real risk of exposure to ill treatment that it proscribes"
Although "symmetry" will not invariably arise (Chahal v United
Kingdom 23 EHRR 413), in this case there was a clear factual overlap
between the rights protected under the Convention and the fears on which the
claim for asylum was based. They were however under examination at different
times, and at the risk of stating the obvious, the failure of the first
application for asylum did not preclude a second and successful application
under the Human Rights Act when it came into force.
The human rights claim
- The appellant was entitled to and did take
advantage of the opportunity to make a further application. In doing so, he
was taking a course followed by many others before him. In Devaseelan v
SSHD [2003] Imm AR 1 leave to appeal to the IAT was granted because the
case raised "several important issues including to what extent an adjudicator
in an appeal based solely on human rights grounds should rely on findings made
in a previous determination dealing with an asylum claim". The IAT, in a
starred determination, directly addressed the issue on which leave was
granted, and provided guidelines for adjudicators. Later in this judgment we
shall have to consider the legitimacy of this guidance and whether it is
correct.
- The human rights claim was set out in a
solicitor's letter dated 14th June 2001. It is unnecessary to recite the
contents of the letter, or the reasons why the SSHD rejected the application.
The second adjudication
- The second appeal was based on lengthy material.
Three main alternative grounds were identified. First, as a failed asylum
seeker, the appellant was at "real risk". The authorities in Algeria would
wish to question him about any possible links he might have with armed Islamic
Fundamentalist opposition overseas, and to decide whether he could provide any
information about the networks of Islamic Fundamentalist terrorist activity in
the UK. This would lead to a risk of arbitrary detention, contrary to Article
5, and a risk of prohibited ill-treatment during detention, which would
violate Article 3. Second, he was at risk of detention and interrogation on
his return to Algeria because of his in-country activity as a Berber activist.
It was reasonably likely that he would be subjected to physical force during
the process of detention and interrogation, violating Articles 5 and 3. Third,
there was a real likelihood of ill-treatment by armed Islamic Fundamentalists
on account of his earlier commitment to the French language, and his
continuing current commitment to what was described as "the Berber cause".
This would contravene Article 3.
- The first and second grounds represented a
completely new basis of the claim, which was not before the first adjudicator.
The threat to the appellant's human rights was said to arise not from the
activities of extremists in Algeria, but from the authorities themselves,
reacting to Berber spring riots in 2001, and the events on 11th September 2001
in the United States. The third ground of appeal effectively repeated the
original case.
- The grounds also referred to expert evidence from
Dr Joffe dated 5th May 2002. It was suggested that there were exceptional
circumstances for admitting the evidence, arising from the fact that the
appellant was not represented before the first adjudicator, who lacked any
expert report on the relevant issues. The appellant had been "left in the
lurch" by his previous representatives. The evidence of Dr Joffe was strongly
commended.
- The appeal was heard on 21st June 2002. The
appellant gave oral evidence. An interpreter was available, but the appellant
rejected his use. His command of English was sufficient. He spoke directly to
the adjudicator, who satisfied himself that an interpreter was not needed. The
interpreter was therefore released. Apart from the oral testimony of the
appellant, the second adjudicator received and took account of the detailed
written submissions, as well as the oral arguments, of the appellant's
counsel.
- The structure of the determination by the special
adjudicator (J. Traynor Esq) is clear. After reminding himself of the
guidelines in Devaseelan, and summarising them briefly, he examined the
determination of the first adjudicator. He concluded that the appellant was
"still substantially arguing exactly the same case". So indeed he was. On this
aspect of the claim however the second adjudicator noted that "substantial
documentation" which had not been before the first adjudicator was produced
before him. In this context, he identified the evidence of Dr Joffe, evidence
which would have been available at the first adjudication.
- The special adjudicator concluded that he should
admit and rely on Dr Joffe's report because he was satisfied that "whilst this
material could have been placed before the previous adjudicator the reason why
it was not available stemmed from the poor representation of the appellant's
case by his former representatives". Having considered Dr Joffe's report the
special adjudicator concluded that it provided "clear historical evidence" of
the difficulties which the appellant would have faced if he had returned to
Algeria immediately after the first adjudication. If that material had been
before her, the first adjudicator "would not have been so certain in her
assessment of risk".
- The special adjudicator then turned to the threat
faced by the appellant from the Algerian authorities. He concluded that he
should examine those arguments as they covered matters which were not before
the first adjudicator. Relying virtually exclusively on the report from Dr
Joffe, which he described as "compelling", he concluded that there was a
sufficient threat to the appellant's rights under Article 3, 5 and 8 of the
Convention for the decision of the SSHD effectively to contravene the
obligations of the United Kingdom under the 1950 Convention.
The decision of the Immigration Appeal Tribunal
- The IAT decision was based on three major
premises. First, it concluded, that although referring to them, the second
adjudicator had failed properly to apply the Devaseelan guidelines. In
particular he misdirected himself about the circumstances in which it was
permissible for him, as the second adjudicator, to allow the re-litigation of
issues already determined by the first adjudicator. This conclusion is
encapsulated in paragraph 14 of the IAT determination that it
"is in no doubt whatsoever that the excuse advanced by the
respondent in the present case in no sense constitutes 'a very good reason'
within the meaning of guideline (7) of Devaseelan. The adjudicator was
accordingly wrong to take account of so much of Mr Joffe's report as sought
to put a different slant on evidence which had been fully considered by the
first adjudicator, and rejected by her."
- Next, the IAT concluded that the second
adjudicator's approach to events which occurred after the first determination
was "also flawed". It was particularly concerned about the issue of "current
risk on return", and the adjudicator's "total reliance on the views of Dr
Joffe, to the exclusion of anything else". The IAT noted that guidance had
been given in an earlier starred decision, Slimani (01/TH/00092), about
the way in which reports produced by experts should be treated, Dr Joffe
himself falling within the ambit of a comment in that appeal that his reports
were of the kind which "suffer from the difficulty that very rarely are they
entirely objective in their approach and that sources relied on are frequently
(and no doubt sometimes with good reason) unidentified. Many have fixed
opinions about the regime in a particular country and will be inclined to
accept anything that is detrimental to that regime. This means that more often
than not the expert in question, even if he has the credentials which qualify
him in that role, will be acting more as an advocate than an expert witness."
In brief, such evidence needed to be approached with caution.
- The IAT expressed its surprise that the
adjudicator had accepted the observations made by Dr Joffe "in a wholesale and
entirely uncritical manner". We discern, too, that it was troubled at his
failure to address a substantial body of further evidence to the contrary
effect. The Country Assessment pointed out that the UNCHR had not called for a
ban on the return of rejected asylum seekers, and indeed reported that
"persons returned to Algeria did not encounter problems". Those who returned
home following an unsuccessful application for asylum in another country were
interrogated to determine their identity and check whether there were any
outstanding criminal proceedings or unfulfilled military service obligations.
However there have been "no known cases in any European country of former
asylum seekers who were maltreated or tortured upon their return". Attention
was also drawn to the recent country report for Algeria, December 2002, from
the Netherlands Department of Immigration Affairs, which appeared to address
part of the material relied on by Dr Joffe based on CIPU enquiry to, among
other countries, Germany, in February 2000. The IAT's view was that the
authorities in Algeria had adopted "what can only be described as a
constructive and conciliatory approach" to the Berber demonstrations in 2001.
None of this material was properly addressed. Perhaps more important, none of
this material was properly addressed by the second adjudicator.
- The IAT reconsidered the evidence. On proper
analysis it was "manifest" that the appellant could "safely be returned to
Algeria". Accordingly the appeal of the SSHD was allowed.
The appeal
Devaseelan
- The first major ground of challenge directs
criticism at the guidance provided in Devaseelan. Mr Rabinder Singh QC
suggested that the juridical basis for the Devaseelan guidance was to
be found in common law principles of res judicata and estoppel. He referred us
to Thrasyvolou v Secretary of State for the Environment [1990] 2 AC
273. He pointed out that these principles could properly be excluded in any
self-contained statutory scheme, both expressly and inferentially. In the
Nationality Immigration and Asylum Act 2002 provision is expressly made to
prevent repetitive appeals following earlier adjudications (s 96(1) and (2))
and, by certification, to estop a claimant from relying on any ground already
considered in another appeal (s 96(3)). Express provisions like these meant
that the IAT could not rely on the principles of res judicata as a
justification for the guidance provided in Devaseelan.
- The problem with this argument is simply
expressed. The second application is a fresh application requiring proper
consideration on such merits as it may enjoy, approaching the issues
contemporaneously. Although it is indeed a "fresh" application, a second or
subsequent application is not and is not deemed to be a first application, and
it is not properly to be treated as if it were. Re-litigation of issues which
have already been resolved is contrary to the public interest, and nothing in
the process suggests that the first application should or must automatically
be treated as irrelevant to second applications arising in cases like those
with which we are presently concerned. If the first application may be
relevant, then the extent of its possible relevance and the proper approach to
it should be addressed as a matter of principle. That is what the guidance
purported to provide.
- In our judgment, the IAT, specialising in this
field, was entitled to provide guidance to the entire body of specialist
adjudicators about how they should deal with the fact of an earlier
unsuccessful application when deciding the later one. Such guidance was
essential to ensure consistency of approach among special adjudicators. The
guidelines remedied an immediate and pressing difficulty, with direct
application to, but not exclusively concerned with, the many cases in which,
after unsuccessfully exhausting all the possible legal channels, asylum
seekers remained in the United Kingdom, and put forward a case on human rights
grounds after October 2000.
- Perhaps the most important feature of the guidance
is that the fundamental obligation of every special adjudicator independently
to decide each new application on its own individual merits was preserved. The
guidance was expressly subject to this overriding principle.
"The first adjudicator's determination … is not binding on the
second adjudicator; but, on the other hand, the second adjudicator is not
hearing an appeal against it … the outcome of the hearing before the second
adjudicator may be quite different from what might have been expected from a
reading of the first determination only. … The second adjudicator must,
however, be careful to recognise that the issue before him is not the issue
before the first adjudicator. In particular, time has passed; and the
situation at the time of the second adjudicator's determination may be shown
to be different from that which was obtained previously. Appellants may want
to ask the second adjudicator to consider arguments on issues that were – or
could not be – raised before the first adjudicator; or evidence that was not
– or could not have been – presented to the first adjudicator."
The guidance concluded with similarly unequivocal language. Guideline 8
says in terms:
"We do not suggest that, in the foregoing, we have covered every
possibility. By covering the major categories into which second appeals
fall, we intend to indicate the principles for dealing with such
appeals. It will be for the second Adjudicator to decide which of them is or
are appropriate in any given case."
This is not the language of res judicata nor estoppel. And it is not open
to be construed as such. In view of the argument, we must emphasise that in
Devaseelan the IAT purported to do no more than provide guidance, and
in our judgment, properly exercising its responsibilities, that indeed is what
it did.
- In passing, we should note, that it is a measure
of the practical value of this guidance that the present case appears to be
the first challenge made to any aspect of it in this Court, and as far as we
are aware, it has not created any difficulty for or inconsistency among
special adjudicators.
- We must now examine Mr Singh's criticism of the
terms of the guidance itself. Subject always to the overriding principles
already identified, this reads:
"39. In our view the second Adjudicator should treat such
matters in the following way.
(1) The first Adjudicator's determination should always
be the starting-point. It is the authoritative assessment of the
Appellant's status at the time it was made. In principle issues such as
whether the Appellant was properly represented, or whether he gave evidence,
are irrelevant to this.
(2) Facts happening since the first Adjudicator's determination
can always be taken into account by the second Adjudicator. If those
facts lead the second Adjudicator to the conclusion that, at the date of his
determination and on the material before him, the appellant makes his case,
so be it. The previous decision, on the material before the first
Adjudicator and at that date, is not inconsistent.
(3) Facts happening before the first Adjudicator's determination
but having no relevance to the issues before him can always be taken
into account by the second Adjudicator. The first Adjudicator will not have
been concerned with such facts, and his determination is not an assessment
of them.
40. We now pass to matters that could have been before the first
Adjudicator but were not.
(4) Facts personal to the Appellant that were not brought to the
attention of the first Adjudicator, although they were relevant to the
issues before him, should be treated by the second Adjudicator with the
greatest circumspection. An Appellant who seeks, in a later appeal, to add
to the available facts in an effort to obtain a more favourable outcome is
properly regarded with suspicion from the point of view of credibility.
(Although considerations of credibility will not be relevant in cases where
the existence of the additional fact is beyond dispute.) It must also be
borne in mind that the first Adjudicator's determination was made at a time
closer to the events alleged and in terms of both fact-finding and general
credibility assessment would tend to have the advantage. For this reason,
the adduction of such facts should not usually lead to any
reconsideration of the conclusions reached by the first
Adjudicator.
(5) Evidence of other facts – for example country evidence – may
not suffer from the same concerns as to credibility, but should be treated
with caution. The reason is different from that in (4). Evidence dating from
before the determination of the first Adjudicator might well have been
relevant if it had been tendered to him: but it was not, and he made his
determination without it. The situation in the Appellant's own country at
the time of that determination is very unlikely to be relevant in deciding
whether the Appellant's removal at the time of the second Adjudicator's
determination would breach his human rights. Those representing the
Appellant would be better advised to assemble up-to-date evidence than to
rely on material that is (ex hypothesi) now rather dated.
41. The final major category of case is where the Appellant
claims that his removal would breach Article 3 for the same reason that he
claimed to be a refugee.
(6) If before the second Adjudicator the Appellant relies on
facts that are not materially different from those put to the first
Adjudicator, and proposes to support the claim by what is in essence the
same evidence as that available to the Appellant at that time, the second
Adjudicator should regard the issues as settled by the first Adjudicator's
determination and make his findings in line with that determination
rather than allowing the matter to be re-litigated. We draw attention to
the phrase 'the same evidence as that available to the Appellant' at
the time of the first determination. We have chosen this phrase not only in
order to accommodate guidelines (4) and (5) above, but also because, in
respect of evidence that was available to the Appellant, he must be taken to
have made his choices about how it should be presented. An Appellant cannot
be expected to present evidence of which he has no knowledge: but if (for
example) he chooses not to give oral evidence in his first appeal, that does
not mean that the issues or the available evidence in the second appeal are
rendered any different by his proposal to give oral evidence (of the same
facts) on this occasion.
42. We offer two further comments, which are not less important
than what precedes then.
(7) The force of the reasoning underlying guidelines (4) and (6)
is greatly reduced if there is some very good reason why the
Appellant's failure to adduce relevant evidence before the first Adjudicator
should not be, as it were, held against him. We think such reasons will be
rare. There is an increasing tendency to suggest that unfavourable decisions
by Adjudicators are brought about by error or incompetence on the part of
representatives. New representatives blame old representatives; sometimes
representatives blame themselves for prolonging the litigation by their
inadequacy (without, of course, offering the public any compensation for the
wrong from which they have profited by fees). Immigration practitioners come
within the supervision of the Immigration Services Commissioner under part V
of the 1999 Act. He has power to register, investigate and cancel the
registration of any practitioner, and solicitors and counsel are, in
addition, subject to their own professional bodies. An Adjudicator should be
very slow to conclude that an appeal before another Adjudicator has been
materially affected by a representative's error or incompetence; and such a
finding should always be reported (through arrangements made by the
Chief Adjudicator) to the Immigration Services Commissioner. Having said
that, we do accept that there will be occasional cases where the
circumstances of the first appeal were such that it would be right for the
second Adjudicator to look at the matter as if the first determination had
never been made. (We think it unlikely that the second Adjudicator would, in
such a case, be able to build very meaningfully on the first Adjudicator's
determination; but we emphasise that, even in such a case, the first
determination stands as the determination of the first appeal.)."
- Mr Singh suggested that the effect of the
guidance, dependent as he submits it is, on principles of res judicata, was
too narrow, and inconsistent with the approach adopted in asylum cases, and
cases where where human rights considerations were in play. He referred to
what we can summarise as the more apparently generous approach to second or
fresh applications in four specific areas. First, he identified fresh
applications which in fact were repeat applications, in which the SSHD made a
"characterisation" decision whether or not the application should be treated
as a fresh application leading to an appeal. The acid test whether a positive
categorisation was appropriate was identified by Sir Thomas Bingham MR in R
v SSHD ex p. Onibiyo [1996] QB 768:
"[The test] must always be whether, comparing the new claim with
that earlier rejected and excluding material on which the claimant could
reasonably have been expected to rely on the earlier claim, the new claim is
sufficiently different from the earlier claim to admit of a realistic
prospect that a favourable view could be taken on the new claim despite the
unfavourable conclusion reached on the earlier claim."
(See also R v SSHD ex p. Boybeyi [1997] Imm AR 491.)
- Next, Mr Singh identified those cases in which it
is accepted that the first determination should be treated as a miscarriage of
justice. In these circumstances, where the appellant has not been at fault,
the fresh notice of refusal is issued by the SSHD, and a fresh right of appeal
is created. (R v SSHD ex p. Syed Mohammed Kazmi [1995] Imm AR 73.) The
third category concerned the system for certification for appeals where
previous appeal proceedings had already taken place, or where repeated claims
were characterised as manifestly unfounded. Mr Singh pointed out that in R
(Yogathas) v SSHD [2003] 1 AC 920,
Lord Hope described the concept of "manifest unfoundedness" as one where a
claim was "so clearly without substance that the appeal would be bound to
fail". Our attention was also drawn to R (ZL and VL) v SSHD [2003] IMLR
224 where Lord Philips MR explained that
"If on at least one legitimate view of the facts or the law the
claim may succeed, the claim will not be clearly unfounded. If that point is
reached, the decision maker cannot conclude otherwise. He or she will by
definition be satisfied that the claim is not clearly unfounded."
- The fourth category of cases related to fresh
evidence on appeal, and the discretion to admit new evidence in the interests
of justice. In his skeleton argument, Mr Singh referred to a number of
authorities, but his submission can be encapsulated by a brief reference to
the judgment of Keene LJ in A v UK [2003] EWCA Civ 175:
"The proper approach was to consider the wider interests of
justice. This must be right both in asylum cases and in those where Articles
2 or 3 are invoked. After all, one has to consider the context in which
these cases are brought. … This further evidence is credible and it is
potentially significant, going much further than the material which the IAT
had. I for my part am quite satisfied that the wider interests of justice do
require the fresh evidence to be considered by this Court."
- Each of the categories identified by Mr Singh is
characterised by the sensitivity of the issues which are engaged. Put starkly,
the wrong decision may condemn an unsuccessful appellant to persecution,
torture, or death. That said, however, in our judgment the guidance given by
the IAT does not overlook these disturbing realities, nor imply, let alone
suggest, that adjudicators considering a fresh application in circumstances
like the present should be blind to them.
- In his submissions Mr Singh addressed particular
criticism of guidelines 5 and 7. In relation to guideline 5, he suggests that
on one construction, this may penalise an applicant involved in a second
application, for failing to produce evidence which could have been available
at the first application but was not. This is not how the guidance reads. This
part of the guidance is intended to contrast the problematic issue of
credibility (addressed in guideline 4) which may arise when an applicant has
failed to give evidence of material known to or personal to himself and his
own condition, and then seeks to add something about these matters in the
course of a second application. The risk identified in guideline 4 is
embellishment or fabrication. In short, its purpose is to give a warning in
these broad terms: if the evidence is true, why was it not given at the first
hearing? Even so, it does not automatically follow that the evidence must be
untrue. The words "not usually" expressly demonstrate that the guidance
is not intended to impose a credibility finding on the second adjudicator. It
is however sensible to seek an explanation for the omission. One such
explanation, referred to in guideline 7, may be the low quality of the
representation before the first adjudicator.
- By contrast with the "great circumspection" with
which guideline 4 is concerned, guideline 5 merely suggests a degree of
"caution". It is concerned with evidence for which the applicant personally is
not the source. It may, for example, be expert evidence. This guideline
highlights the risk of over-reliance on evidence independent of the applicant
which, even if accurate at the time when it was given at the first
adjudication, may have become out of date by the time of the second. This
guidance is not concerned with and does not address the broad issue of
credibility. It does no more than emphasise that the second application is
indeed a fresh application, and that some evidence from the previous
application – favourable to the applicant as well as unfavourable, - may no
longer be accurate. More important, it does not preclude the re-use of
objective and expert evidence the impact of which, notwithstanding the passage
of time remains undiminished. What it advises is that care should be taken not
to assume that it does.
- Specific criticism is also directed at guideline
7. The objection is that its approach to allegations of incompetent
representation in the first application is too restrictive. In particular Mr
Singh was concerned at the requirement that an adjudicator was effectively
precluded from finding that legal representation before the first adjudicator
was inadequate unless that finding was reported to the Immigration Services
Commissioner. If this were so, then there would be force in his criticism. In
our view however, guideline 7 does no more than warn against the ease with
which allegations of inadequate or incompetent representation may be made. The
issue is of sufficiently broad importance for the IAT to require that cases
where professional incompetence or error have been demonstrated should be
reported. The guidance does not tell adjudicators that they should refuse to
make such findings where they are appropriate, and equally, it is not
suggesting whether and when such findings should be made. All that it is
requiring is that if they are made, in the overall interests of the
administration of justice in this particular and sensitive field (including
those of potential applicants themselves) such findings should be reported. In
our judgment, no-one benefits if they are not so reported, and the requirement
that they should be does not impinge on the second adjudicator's obligation to
act on findings of legal incompetence in the course of the first adjudication
if such findings are justified.
- The specific criticisms directed at guidelines 5
and 7 fail. Having analysed the guidelines as a whole, in the light of the
specific criticisms, it seems to us that it would be positively
disadvantageous for this Court now to attempt to rewrite any part of the
guidance by expressing the same ideas in different language. We have no reason
to believe that adjudicators approach this guidance as if they were construing
statute or regulation, or apply it as if it were, without regard to the true
merit (or otherwise) of the fresh application. The great value of the guidance
is that it invests the decision making process in each individual fresh
application with the necessary degree of sensible flexibility and desirable
consistency of approach, without imposing any unacceptable restrictions on the
second adjudicator's ability to make the findings which he conscientiously
believes to be right. It therefore admirably fulfils its intended purpose.
The IAT decision
- The final area of criticism is directed at the
SSHD's successful appeal to the IAT. In essence it is submitted that the IAT
was not justified in nor entitled to interfere with the second adjudication.
- The relevant principles have recently been
summarised in Subesh & ors v SSHD [2004] EWCA Civ 56. We shall apply but not repeat them, acknowledging simply that the
appellant had the advantage of the second adjudicator's finding in his favour,
and that it was for the SSHD to persuade the IAT that it was "required" to
adopt a contrary view.
- The relevant facts are sufficiently summarised in
the judgment. The issues were very stark. The second adjudicator was invited
to consider a claim which, in part, effectively repeated the original grounds
rejected by the first adjudicator, which were based on a threat to him by
Islamic fundamentalists from which the authorities in Algeria would not or
could not protect him. The claim was advanced on the further grounds that in
consequence of events which took place after the first determination, the
appellant was now susceptible to a serious risk from the authorities in
Algeria. This claim plainly was not and could not have been advanced to the
first adjudicator.
- The successful appeal to the second adjudicator
stemmed from the admission in evidence of the written evidence of Mr Joffe. No
rigid application of res judicata principles was required to question the
reliance placed on Mr Joffe's evidence in relation to the repeated claim of a
threat from fundamentalists. The second adjudicator was satisfied that the
absence of this evidence from the first adjudication stemmed "from poor
representation". To the extent that this implied that the appellant had been
legally represented at all before the first adjudicator, it was wrong.
Perhaps, the second adjudicator was doing no more than saying that this
evidence could have been available, but was not put before the first
adjudicator. However that is not how he expressed himself. In any event, it
did not necessarily follow from the failure to deploy evidence from Mr Joffe,
or a similar expert, before the first adjudicator, that the appellant's
self-representation was deficient. Be that as it may, on this topic, the
second adjudicator confined himself to recording that Mr Joffe's report
provided historical evidence of the "difficulties" which the appellant would
have faced if he had returned to Algeria immediately after the first
adjudication. His finding, however, was that if this material had been before
the first adjudicator it would have made her less "certain" of the absence of
risk to the appellant. It is difficult fully to comprehend what the second
adjudicator means when he adds that he can "confirm" that this material would
have produced increasing uncertainty in the first adjudicator. These are
nebulous findings, perhaps exemplifying the dangers of repeated litigation of
the same issues. In any event, reading the determination as a whole, if the
second adjudicator decided the human rights claim on the basis that he
accepted the factual matters relating to the appellant's claim which had been
rejected by the first adjudicator, the IAT's criticism of that aspect of the
determination was amply justified.
- The centrality of Mr Joffe's evidence to the
second adjudicator's decision is plain. Without Mr Joffe's support, the new
grounds for the claim were bound to fail. The IAT was concerned that the
second adjudicator had failed to address the concerns to which it had earlier
directed attention in Slimani. The IAT was right. The adjudicator had
not done so. It was equally concerned at his failure to address the body of
seemingly impressive evidence which served to contradict much of what Mr Joffe
was saying. Again, he did not do so. Although the adjudicator would have been
entitled to accept Mr Joffe's evidence, it was entirely reasonable for the IAT
to expect that before doing so, he would address what we shall describe as the
Slimani reservation, and, further, even if briefly, explain the reasons
for rejecting the apparently reputable body of evidence on these important
issues put before him on behalf of the SSHD. None of this was done. That was
not good enough. The IAT was therefore entitled to interfere.
- For these reasons the appeal against the IAT's
determination fails.
Order: Appeal dismissed. No order as to costs save for detailed
Community Legal Services assessment of the appellant's costs.
(Order does not form part of the approved
judgment)