England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
IMMIGRATION APPEAL TRIBUNAL

		Royal Courts of Justice The Strand London WC2A 2LL
		26 April 2005

Tuesday, 26 April 2005

THE LORD CHIEF JUSTICE: I will ask Lord Justice Scott Baker to give the first judgment.

LORD JUSTICE SCOTT BAKER:

1. This matter came before the court today with the applicant seeking permission to appeal against a decision of the Immigration Appeal Tribunal of 8 July 2004. We have granted permission to appeal and the disposal of the appeal has now been agreed by Miss Bond on behalf of the appellant and Mr Tam who represents the respondent.
2. Before I come to the detail of what the parties have agreed, and with which agreement, subject to my Lords, I approve, it is desirable to say a word or two about the background.
3. This case concerns Article 3 of the European Convention on Human Rights which provides:

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

4. The appellant is a national of Ethiopia, where she was born on 24 May 1982. She is therefore now 22 years old, almost 23. Her parents divorced when she was very young. Her mother went to Saudi Arabia. She remained with her father in Ethiopia and he remarried.
5. In 1996 the appellant was at home with her father, her stepmother, her sisters and her brother when two soldiers came into the house. Her father was beaten and taken away. The soldiers returned and beat up her stepmother who was pregnant. She later died in hospital.
6. The appellant initially went to stay with her aunt, but her mother soon arranged for her to go to Saudi Arabia. Her mother was working there as a domestic servant and she arranged for the appellant to obtain work with a Saudi Arabian family. This family treated her very badly and in due course she moved on to an American family with whom she appears to have got on. But they moved back to the United States of America and were unsuccessful in obtaining a permit for the appellant to go with them. So the appellant went to work for another family. They, too, mistreated her. After two months -- that is in the summer of 1998 -- they came to the United Kingdom during the summer holiday and brought the appellant with them. After about two weeks the appellant ran away from the family. At that time she was aged 16. She was taken into care by Westminster Social Services. By then she had no contact with any member of her family and no means of finding them. She was effectively alone in the world.
7. On 27 January 1999, an application was made on her behalf for exceptional leave to remain in this country. She had no one and nowhere to return to in Ethiopia.
8. A further letter was sent to the Secretary of State the following June setting our the appellant's vulnerability. It is very regrettable that the Secretary of State did not deal with the application for over four years. Eventually, on 12 February 2003 the appellant was interviewed, and on 7 April 2003 her application for exceptional leave to remain was refused. Her application was treated also as an implicit application for asylum and this, too, was refused.
9. On 24 July 2003, the Secretary of State issued a refusal notice with directions that she be removed to Ethiopia. The appellant appealed to an adjudicator. The Secretary of State chose not to be represented before the adjudicator, no doubt because of the number of cases that he had at the time and a shortage of staff. But he nevertheless asked for the appeal to be dismissed, relying on the documents in the bundles before the adjudicator. This placed the adjudicator in a difficulty because he only heard argument on one side.
10. The adjudicator found in favour of the appellant, having accepted as credible her evidence as to what had happened to her. He had before him a psychiatric report from a Dr Al-Yassiri, whose findings he took into account. He said that the appellant suffered from excessive anxiety, difficulty in controlling the worry that she suffered, feelings of relentlessness, difficulty in concentrating and disturbed sleep. There was in the psychiatrist's view a high probability of her developing a major depressive episode as well as deterioration of her existing psychological symptoms if she was forcibly repatriated to Ethiopia. The adjudicator found that the appellant could not remember much about life in Ethiopia and would for all intents and purposes be returning to unfamiliar territory. The adjudicator found that the Article 3 claim was made out. The asylum claim in the event was not pursued and he made no findings about it.
11. The Secretary of State appealed to the Immigration Appeal Tribunal on the ground that it does not follow that because there is a general risk of ill-treatment of women in Ethiopia, there was a real risk that this appellant would be ill-treated. The Immigration Appeal Tribunal noted that the adjudicator had accepted the appellant's evidence. The Tribunal, however, did not identify the adjudicator's error of law, which it should have done. It is for this reason that Mr Tam concedes that it is appropriate for this court to remit the case for rehearing to what is now the Asylum and Immigration Appeal Tribunal. However, it is also conceded as a matter of fairness to the appellant that when the Tribunal rehears this matter, the adjudicator's findings as to the appellant's credibility should be ring-fenced and should remain. It is further agreed that the Tribunal will reconsider the case in the light of whatever up-to-date evidence each party seeks to file as to the position about women in Ethiopia and the risk to which they are subjected of rape and abduction, and in particular whether the risk to this appellant would be such as to cross the Article 3 threshold.
12. For my part I am very concerned that a 16 year old girl making a claim for exceptional leave to remain should have had to live with that claim undetermined for a period in excess of four years. Mr Tam concedes that that can have done little to assist with the appellant's mental health problems. She has put down some roots in this country and is plainly on the evidence that we have seen doing the best that she can to advance her prospects for the future. It will be a very grave blow to her indeed if after this considerable length of time -- and even further time will pass now that the matter has to go back to the Tribunal -- before her future is finally decided. In my judgment, however, the course that has been agreed by the parties is one that is in all the circumstances one which ought to be approved by this court and I would accordingly approve it.
13. LORD JUSTICE CHADWICK: I agree.
14. This application, with appeal to follow if permission were granted, was originally listed for hearing in the Court of Appeal on 15 and 16 February 2005. Very shortly before that date, another Division of the court (Brooke, Latham and Neuberger LJJ) in the appeal of Mlauzi v Secretary of State for the Home Department (7 February 2005) gave guidance in relation to appeals that were coming through from the Immigration Appeal Tribunal. Brooke LJ pointed out that although it was now well known that Parliament had revoked the powers of the Immigration Appeal Tribunal to hear appeals on fact in relation to any decision by an adjudicator made after the first week of June 2003, the effect of that revocation was taking time to percolate through to those who practise before the Appeal Tribunal. The Appeal Tribunal had made a number of determinations in which it had not clearly identified the point of law which under the changed regime alone gave it jurisdiction to hear the appeal.
15. This court indicated on 7 February 2005 that those advising the Secretary of State should look carefully at pending applications and appeals, and should consider whether the Immigration Appeal Tribunal had in truth identified the point of law which gave it jurisdiction to intervene. In those cases in which there was doubt they should consider whether the Secretary of State really could resist the appeal or should obtain a remission.
16. It was, perhaps, inappropriate for that judgment that, immediately before the hearing in February, a remission was offered to the appellant. The appellant did not then find that offer attractive. The offer has been made again at the hearing today. The remission would now be to the new Appeal Tribunal rather than, as before, to the adjudicator. That offer is now accepted. I agree that this court should make an order which gives it effect.
17. THE LORD CHIEF JUSTICE: I also agree. Accordingly, the appeal will be allowed. The case will be remitted to the Tribunal on the basis that the Tribunal will not disturb the finding of facts made by the adjudicator as to the circumstances in which the appellant came to be within this jurisdiction.

ORDER: (Not part of judgment)

Appeal allowed; the appellant's case to be remitted to the AIT for rehearing and redetermination by a different constitution; the findings of the adjudicator about the appellant's history up to and including her arrival in the United Kingdom and about the appellant's family and the extent of the contact that she had with them and her credibility in relation to those matters are to remain undisturbed in the new determination by the AIT; no order as to costs; Legal Services Commission Funding assessment of the appellant's costs.