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 IMMIGRATION APPEAL TRIBUNAL
BUXTON & MAURICE KAY LJs
C4/2005/0216

		Royal Courts of Justice Strand, London, WC2A 2LL
		20 July 2005

Lord Justice Carnwath :
 


Background

1. The Appellant is a Liberian national. He arrived in the United Kingdom on 14^th October 2002 on a false UK passport and claimed asylum. The Secretary of State's refusal was upheld by the Adjudicator in a decision dated 30^th September 2003.
2. The Appellant had been a freedom fighter between 1992 and 1994, but had then surrendered to the United Nations. He had lived peacefully in Monrovia until 1997, working as a security guard. He claimed to have been arrested and beaten, in September 1998 and December 1999, at the instigation of a government official. He had then joined a political group called LURD. His brother was a high profile opponent of the government, who was arrested in or about July 2002, at which point the appellant decided to leave the country and seek asylum in the UK.
3. By the time of the hearing of the appeal in September 2003 there had been significant developments in Liberia. A peace agreement had been signed in August 2003, providing for the resignation of the former President (Charles Taylor), and an interim Government to take power for a two-year period from mid October 2003, made up of representatives of different groups. According to recent news reports referred to by the Adjudicator (without objection from the parties), there were, in addition to troops from the United States, 3,500 troops from Nigeria and Ghana to promote the implementation of the peace agreement.
4. Before the Adjudicator, the appellant was represented by Mr O'Donnell, who also appeared in the IAT and this court. The Adjudicator found the appellant's evidence to be broadly credible, but concluded that, against the background of the ceasefire, there was no real risk to the appellant on his return. He noted that the UNHCR had advised against removal of failed asylum-seekers, particularly in relation to vulnerable categories, such as unaccompanied minors, those in poor health and single women. However, the Appellant was a "fit young man with broad experience", and there was no suggestion that his brother's arrest had led to the detention of other members of the family.

The Appeal to the IAT

5. At this time there was a right of appeal to the IAT on a point of law only. This limitation was introduced by a change to the law which applied to Adjudicator decisions made after 9^th June 2003. However, as has been apparent from several cases before this court, it took some time for the change to be fully understood by the IAT and all those practising before it. Indeed, as this case appears to show, this confusion seems to have continued in some quarters even after July 2004, when the effect of the change was comprehensively explained by this court in CA v Secretary of State [2004] EWCA Civ 1165.
6. Before this court it was common ground that the essential starting point for the Appellant must be to show an error of law in the Adjudicator's decision on the material before him. As Laws LJ said in CA (para 30);

"It may be that it is perfectly possible to conclude that the Adjudicator was wrong on the merits. Such a conclusion might have justified overturning his decision under the earlier wider Appellate jurisdiction… But the jurisdiction under section 101 forbids in effect the IAT deciding the merits itself unless at least it first concludes that the Adjudicator's decision cannot stand because it is marred by error of law."

7. Mr O'Donnell's grounds of appeal to the IAT sought to identify two alleged errors of law: first, that it was wrong in law to require evidence that other members of the family had actually been detained in order to establish a risk of persecution; secondly, that the conclusion that there was no risk was "perverse". The latter point was explained as follows:

"The airport was reported to have remained in the hands of the government (CIPU Bulletin paragraph 3.2). The UNHCR have requested governments not to enforce removal of failed asylum seekers… It is submitted that having found (the Appellant) credible, it is perverse to find that there would be no risk returning him via an airport; controlled by a government that still detains his brother, has previously detained him and was actively seeking him when he left; in conditions of continuing tension".

8. On 11^th December 2003, the IAT granted permission to appeal, the reasons being stated in these terms:

"I find some merit in the Grounds. Having found the claimant credible the continued detention of his brother and harassment of his family must raise concern as to safety upon return now"

I make two comments at this stage. First, it is not clear on the face of the document granting permission whether the member regarded either point as raising an issue of law. Secondly, although the second sentence appears directed to the first ground of appeal only, the consent was not limited to that point (as could have been done, under rule 18(5) of the Immigration and Asylum Appeals (Procedure) Rules 2003).

9. The appeal was heard on 6^th October 2004, and the decision notified on 15^th October. The decision records that Mr O'Donnell "adopted all the detailed grounds of appeal". However, it contains no further reference, either in the report of submissions or in the IAT's conclusions, to the two specific issues of law raised by the grounds of appeal, or to any other error of law. Instead, as far as one can judge from the decision, all parties appear to have proceeded on the basis that it was open to the Tribunal to consider the factual merits on the basis of the most up-to-date information available, regardless of whether it could have been available to the Adjudicator. Thus, Mr O'Donnell is recorded as relying on the Liberia Country Report of April 2004, which referred to continuing human rights abuses. For the Secretary of State, Mr Elks "pointed to the clear change of circumstances following the change of regime", and referred to the same Country Report, according to which the Appellant's party was now actively involved in government.
10. It is recorded that the hearing was re-opened at the request of Mr O'Donnell, with an application to submit new evidence, in the form of a very recent letter from the Appellant's brother, who by this time had been granted asylum in the United States. The letter spoke of attacks by armed men on their family home, during which two sisters had been raped. The IAT refused to admit the letter saying:

"It appears to contain substantial additional factual information, which was not, and could not have been, before the Adjudicator. We therefore take the view that it is not proper for us to admit this documentation as evidence for the purposes of determining the current appeal." (para 7)

11. The IAT dismissed the appeal. They referred to the change of regime, following which -

"…it appears from the background evidence that the government is now in the hands of parties, who include those who were supported by the Appellant. It is clear that the Appellant was not involved, in the same degree, in relation to human rights' activity as was his brother, and we did not doubt that the brother's recognition as a refugee in the United States was based specifically on the individual circumstances of the brother, as such a high level human rights activist." (paragraph 8)

They concluded

"Standing the change of regime, it seems to us that there is no real risk to this Appellant of persecution for political reasons, or indeed any other bases. We therefore consider that the conclusions, which were drawn by the Adjudicator were fully warranted, and that the appeal was correctly dismissed, by the Adjudicator" (paragraph 9)

12. The Appellant applied to the IAT for permission to appeal to the Court of Appeal on two grounds: (a) the IAT erred in restricting their assessment of risk to the risk to the Appellant emanating from his brother; and (ii) the IAT's refusal to admit the evidence in the affidavit from his brother was perverse and irrational. The IAT refused permission on 10^th January 2005.
13. An application was then made to this court for permission to appeal. It was refused on 11^th March 2005 by Kennedy LJ, but granted on 20^th April 2005 by Buxton and Maurice Kay LJJ. From the transcript of Buxton LJ's judgment, it is clear that he was doubtful whether the IAT had any jurisdiction to hear the appeal, having failed to identify an error of law when granting permission to appeal. He suggested that this was matter the court would wish to review on the substantive hearing. On the IAT decision itself, he thought it arguable that they were in error in taking account of the up-to-date position in Liberia, and also, having done so, in using that as a reason for refusing to admit the new evidence.

The issues in the appeal

14. Before this court, Mr O'Donnell relied in his skeleton argument on two points:

i) The airport issue

"…it is plainly an error law to find no risk to A at the airport, controlled by those who were actively seeking him and detaining his brother. It is submitted that insofar as the IAT considered whether the Adjudicator erred in law and affirmed his findings their conclusion is perverse."

ii) The new evidence issue

"…the IAT's reasoning, approach and decision in declining to consider the affidavit from (the brother) was perverse and irrational….

The Respondent did not object to the admission of the evidence and the challenge was put on the basis of unreliability. The nature of the evidence is such that there would have been little if any prejudice to the Respondent were it admitted; and certainly none that could not have been cured by an adjournment to allow for its consideration….

In essence this showed that the United States authorities were of the view that as recently as 23 August 2004 A's brother had a well founded fear in Liberia and that members of his family had been persecuted since his release i.e. two years after the change in regime…."

15. At the hearing the issues were narrowed further. Mr O'Donnell accepted that the starting-point must be an error of law in the Adjudicator's decision. Unless and until such an error were shown, the IAT would have no jurisdiction to consider the factual merits afresh, and thus the new evidence issue would not arise. For the Secretary of State, Mr Patel fairly accepted that, if the IAT had properly reached the stage of looking at the factual merits on the basis of the up-to-date evidence, he would find it difficult to defend their refusal to consider the brother's letter.
16. On that basis, everything depends on the first ground. Mr O'Donnell reverted to the way the matter had been put in the original grounds of appeal from the Adjudicator. Notwithstanding the peace agreement, the CIPU report showed that improvement in conditions was not universal. In particular, the airport, through which the Appellant would have to pass if returned to the country, "was reported to have remained in the hands of the government" (CIPU Bulletin paragraph 3.2). Taking that with the UNHCR request not to enforce removal of failed asylum seekers, it was perverse to find that there would be no risk to him on returning.
17. Reduced to this short point, I am unable to accept the submission. In the first place, there is no indication in the Adjudicator's decision that the airport point was put to him in these terms. Mr O'Donnell fairly accepts that he cannot positively assert that he did make the point, but he says that it should have been apparent from the CIPU report. However, his reference to the CIPU report is not complete. The airport is said to be controlled by "the Government", but "working with the assistance of peacekeepers". The precise significance of this addition may be a matter for debate. But it certainly points to a change from the position when the former government was in total control. Even if this point had been specifically drawn to the Adjudicator's attention, it would in my view have been a wholly inadequate basis for deciding that the airport posed some special risk to the Appellant, sufficient to justify his claim. In any event, such a risk cannot be said to have been obvious on the face of the document, and the Adjudicator cannot fairly be criticised for not giving it weight.
18. In my view, Mr O'Donnell has failed to get over the initial hurdle of showing an error of law in the Adjudicator's decision. It accordingly becomes unnecessary to embark on the more problematical issues raised by the IAT's reasoning, including those which troubled Buxton LJ. I would therefore dismiss the appeal.

Lord Justice Rix:

19. I agree.

Lord Justice Chadwick:

20. I also agree.