England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand London, WC2
		18th May 2005

1. LORD JUSTICE SEDLEY: The appellant, a Sudanese citizen who asserts that he is a member of the Massaleit tribe, was refused asylum by the Home Secretary on 27th February 2003, essentially on the ground that the Secretary of State did not accept that his account of state persecution of himself and his family was truthful. On appeal the adjudicator too found the history given by the appellant to be so riddled with inconsistencies as not to meet even the modified standard of proof applicable to asylum claims. But he allowed both the asylum appeal and the human rights appeal on the ground that the objective evidence showed the appellant, as a member of the Massaleit tribe, to be at present and future risk of persecution by militias which the state either could not or would not control.
2. The adjudicator's consideration of Mr Daoud's tribal ethnicity was open to criticism. At paragraphs 11 to 13 of his reasons he set out the evidential issues relating to it as follows:

"11. The appellant comes from Western Darfur, which is a province in Western Sudan. Darfur has a border with Chad as well as other countries. The appellant says he is a member of the Massaleit tribe. This is an African tribe, which the appellant says was frequently attacked by Arab tribes such as Rirzigat, Baggara and Hamar.

12. The appellant says that his mother actually belongs to the Baggara tribe, but his father is from the Massaleit tribe. He says in Sudan a child always follows the father's race. Thus he says he is definitely a member of the Massaleit tribe. Doubt was cast on this by the Secretary of State, because in his screening interview he is recorded as having said that he was Baggara. This is recorded as his ethnic origin. The appellant says that he was trying to explain to the woman from the Home Office that his mother belonged to the Baggara tribe and his father to the Massaleit, but before he finished giving his answer, she was asking him another question. She did not give him the chance to finish answering the question and explaining.

13. The appellant says that the Massaleit are a minority tribe and they are a weak tribe. They have been suffering persecution for a long time. This is always at the hands of the Arab tribes. The appellant says that the Arab tribes have been supported by the Sudanese Government."

3. At this point of his decision, quite logically, the adjudicator, Mr Markham David, turned to the personal history given by the appellant. Over the next seven carefully reasoned paragraphs he reached the conclusion that, albeit the account made a good fit with the objective evidence about the situation in Darfur, the appellant's particular account of his own and his family's past persecution was so inconsistent as not to be credible. The adjudicator therefore turned back to the question of the appellant's tribal ethnicity as a discrete risk factor. He said at paragraph 21:

Thus the position is that I accept that the appellant is from the Massaleit tribe. I do not accept that he has been persecuted in the past for the reasons I have given. Thus the question is whether there is a real risk that the appellant will be persecuted in the future if returned to western Darfur in Sudan."

4. The adjudicator went on to consider the evidence that members of Darfur tribes, including the Massaleit, are at constant risk of persecution by reason of who they are. He concluded at paragraph 22:

"There is no suggestion the appellant is personally targeted. However, he is a member of the Massaleit tribe from Western Darfur who have been persecuted over a substantial period. It seems clear that the overall situation is deteriorating, and that the risk must therefore be increasing. As a member of the Massaleit, there must be a real risk of the appellant being a victim of an armed raid, and therefore being killed or wounded. On the evidence before me, those carrying out the raid would be agents of persecution, in that the Government is unable or unwilling to provide the necessary protection."

5. Lastly, the adjudicator went on to say this at paragraph 23 about the question of internal relocation:

"I have considered the question of internal relocation within Sudan. The issue was not raised in the respondent's refusal letter, and there was no Presenting Officer at the hearing. There is no evidence before me that the appellant would be safe in other parts of Sudan. Bearing in mind that there is Arab dominance in the north and a war in the south of Sudan which has been in progress for a very long time, I do not think it would be safe for the appellant to relocate elsewhere, nor that it would be reasonable to expect him to do so."

6. The Secretary of State sought permission to appeal to the Immigration Appeal Tribunal on essentially two grounds. The first was:

"The adjudicator has erred in law in accepting that the applicant is from the Massaleit tribe. At paragraph 18 the adjudicator found the applicant not to be a credible witness. He has given no reasons why. Therefore he has accepted that applicant's explanation in paragraph 12 of why he is recorded as a Baggara rather than a Massaleit. The applicant was given the opportunity to add anything he wished on conclusion of the interview, (E22 of the Home Office bundle) but still failed to say that he was a Massaleit."

The second ground, albeit spread over three further paragraphs, was that the adjudicator should have found it reasonable for the appellant to move to a safer part of the Sudan. The Vice-President who considered the application, Mr Moulden, gave permission to appeal in these terms:

"It is arguable that having found the claimant not to be a credible witness the adjudicator should have given reasons for his conclusion that he did belong to the Massaleit tribe. All the grounds may be argued."

7. By the date of this appeal the Immigration Appeal Tribunal's jurisdiction was confined by section 101 of the Nationality, Immigration and Asylum Act 2002 to points of law, as by virtue of section 103 is ours. The Immigration Appeal Tribunal, consisting of Ms Gill, the chair, and Mr Sandall, set out in detail the submissions of the Home Office presenting officer who appeared before them. The arguments appeared to have been in support of two propositions only. The first is that it had not been open to the adjudicator to believe the appellant's evidence about his ethnicity given their disbelief of the history he gave. In the alternative, the adjudicator should have found it reasonable for the appellant to relocate elsewhere in the Sudan. When, however, counsel for the appellant, Mr Patel, addressed them, the Immigration Appeal Tribunal did focus his attention on the question which had principally occupied the Vice-President who gave leave, namely whether there was a void in the reasoning. Mr Patel accepted that there was a gap in this respect, but this is not a concession which has been accepted by Miss Fielden, appearing today for the appellant, as sufficiently serious to be fatal to the adjudicator's reasons, and has not been relied on forensically by Miss Stern, appearing for the Secretary of State. She seeks to support the Immigration Appeal Tribunal's decision upon its intrinsic merits.
8. The Immigration Appeal Tribunal was certainly correct in identifying the absence of any seamless process of reasoning between the evidential material that I have quoted about the appellant's ethnicity in the adjudicator's conclusion. Miss Stern says that, although that conclusion is introduced by the word "thus", nothing in the intervening parts of the decision, which have posed but not resolved the conflicts of evidence, explains how this particular conclusion has been arrived at. Miss Fielden submits that the word "thus" indicates, albeit opaquely or obliquely, that the adjudicator has accepted the appellant's evidence, as summarised earlier in his reasons, with regard to his ethnicity. Miss Stern says that this will not do in a case where everyone, including the Secretary of State, is entitled to an intelligible and, if appropriate, an appealable explanation of why a man, found to be unworthy of belief about everything else, is to be believed about this one issue. I will return to this question, which is the only critical one in the case, after dealing with the other matters.
9. The next thing that the Immigration Appeal Tribunal did, having identified this gap, was to say this:

"Having considered all of the evidence, it is abundantly clear that the claimant was saying that, on account of his ethnic origin as a member of the Massaleit tribe, he and his family had experienced persecution in the past. Given the adjudicator's rejection of his and his family's alleged past experiences, the adjudicator was duty bound to explain why he nevertheless accepted the claimant's claim as to his ethnic origin. It is clear that he gave no reasons for this finding. The failure to give any reasons is an error of law. We do not accept that the adjudicator was entitled to accept the claimant's claim as to his ethnic origin, whilst rejecting his claims as to his alleged past experiences. This is because, as we have said, the claimant has stated that the reason why he and his family experienced problems in the past is because of his ethnic origin. Given the adjudicator's rejection of the claimant's claims as to his alleged past experiences, there is no proper basis for the finding that the claimant is a member of the Massaleit tribe. It is a finding that no reasonable adjudicator, given the adverse credibility assessment at paragraphs 14 to 18 of the determination, would be entitled to make. Given the adjudicator's adverse credibility assessment as to the claimant's alleged past experiences and the fact that the adjudicator was aware that the Massaleit tribe from the Western Darfur region is one which has suffered persecution over a substantial period (see paragraph 22 of the determination), it was a finding which, quite simply, was not open to the adjudicator."

10. It seems to me that the Immigration Appeal Tribunal, having correctly identified a gap in the reasoning of the adjudicator, have substituted for it an error of law of their own. It is fallacious to say that the adjudicator was not entitled to accept the appellant's claim about his ethnicity whilst rejecting his claims about his past experiences, both as a general proposition and in relation to his findings in the present case. The two things can co-exist. To hold, as the Immigration Appeal Tribunal did, that the rejection of the appellant's personal story means that there is no proper basis for finding him to be of the Massaleit tribe and, even more extreme, that no reasonable adjudicator could make the latter finding having made the former, is as illogical as it would be to hold that, having found in an appellant's favour on one factual issue, it was not open to an adjudicator to find against him on another.
11. The final reason given by the IAT is in my view no better. At the end of 11.3 they say:

"We agree with Mr Parker (the Home Office presenting officer) that the claimant's claims as to his alleged ethnic origin are inseparable from his accounts of his alleged past experiences, because he has based his alleged past problems on his alleged ethnic origin."

To claim falsely that you have been persecuted in the past because of your ethnicity does not mean that you may not face risks in the future because of it. As before, if the linkage of allegations had some binding legal force it would work both ways, with completely intractable results.

12. The Immigration Appeal Tribunal did not deal with the appeal on internal relocation because their finding that the appellant had failed on the issue of a well founded fear of persecution made it irrelevant. In my judgment, however, internal flight was irrelevant for the more fundamental reason given by the adjudicator in the first three sentences of paragraph 23, which I have quoted. Internal relocation is not, as Home Office presenting officers seem often to think it is, a throw-away submission in case other arguments fail. It is a serious and frequently problematical issue, requiring proper notice, proper evidence and proper argument, and it is governed by legal tests to which this court has more than once devoted attention. In the situation before the adjudicator, who (it is fair to say) seems to have been the only person to have raised the question of internal relocation in the first place, his view was that internal relocation was not a legitimate issue. He was right to deal with it in the way that he did.
13. I return to the apparent gap between the evidential conflict set out by the adjudicator and the conclusion expressed by him in favour of the appellant's credibility on the question of his ethnicity. While I would consider it desirable that an adjudicator who makes differential credibility findings should spell out his process of reasoning, what he accepts and what he rejects in terms of evidence is ultimately a matter of judgment, item by item. If the adjudicator had begun his paragraph 22 with words such as these:

"Notwithstanding my rejection of the history given by the appellant, I accept his account of the misunderstanding that arose at interview and accordingly accept that the appellant is from the Massaleit tribe",

it seems to me that the objection would fall away.

14. Not without a certain amount of hesitation, I accept Miss Fielden's submission that, to all intents and purposes, on the facts and in the mode of dealing with the facts in this particular decision, that is what the adjudicator has said. Had I been against her on this issue, the most I would have been prepared to do, and the most in my view that the Immigration Appeal Tribunal could properly have done, would have been to remit the case to the adjudicator to spell out his reasons for accepting that the appellant was a member of the Massaleit. There is in my judgment, for the reasons I have given, no obstacle in law to his having had and being able to give sound reasons for this differential finding and no reason, on reflection, why any reasons that he gave need have been deficient. It seems to me that they are implicitly there and that nothing would be gained by remitting the case for him to spell it out further. I would allow the appeal.
15. LORD JUSTICE RIX: I agree.
16. LORD JUSTICE CLARKE: I agree. The decision of the adjudicator is restored.

ORDER: Appeal allowed with costs on the standard basis; decision of adjudicator restored.