COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM IMMIGRATION APPEAL TRIBUNAL
London, WC2A 2LL
B e f o r e :
THE RIGHT HONOURABLE LORD JUSTICE TUCKEY
THE RIGHT HONOURABLE LORD JUSTICE KAY
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A. Hunter (instructed by Treasury Solicitor) for the Respondent
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Lord Justice Judge:
The first adjudication
"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)
"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 …"
"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 second adjudication
The decision of the Immigration Appeal Tribunal
"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."
"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.
"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.)."
"[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  Imm AR 491.)
"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 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."
The IAT decision