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 ASYLUM AND IMMIGRATION TRIBUNAL

		Royal Courts of Justice Strand London, WC2
		21st December 2006

1. SIR IGOR JUDGE, P: I shall ask Lord Justice Laws to give the first judgment.
2. LORD JUSTICE LAWS: This an appeal in form against the decision of the Asylum and Immigration Tribunal ("the AIT") made on 12th May 2006 dismissing the appellant's asylum and human rights appeals. Keene LJ had refused permission to appeal on the papers on 31st July 2006, but permission was granted in court by Moses LJ on 18th October. I say "in form" because the appellant's case on appeal is in reality directed at an earlier decision of 21st November 2005 in circumstances which I will shortly explain.
3. The appellant is a citizen of Guinea born on 19th November 1976. He arrived in the United Kingdom on 1st March 2005 and claimed asylum on 4th March 2005. The basis of his claim is crisply described by the AIT in their determination of 21st November 2005 as follows:

"The Appellant's claim is based on his membership of the UFR (Union des Forces Republicaines, Union of Republic Forces) and his political activities for that party. He joined the party in January 2002 and later became the spokesman for the youth committee and supervisor for the presidential elections, which were held on 31 December 2003. He was arrested and detained once - i.e. on 3 March 2004, when he and the UFR leader (Monsieur Touré) were arrested and detained, as well as some other members of the UFR party. Monsieur Touré was arrested from a restaurant in the morning whereas the Appellant was arrested from his home. The Appellant was detained for one month and tortured. He signed a confession to the effect that he was responsible for the coup attempt. He was released provisionally on 10 April 2004 by the authorities. On 19 January 2005, there was a coup attempt on the President, following which the President appeared on television stating that he knew the people responsible for the coup attempt. The Appellant feared that he might be one of the people the President was talking about. He therefore left the country."

4. The Secretary of State rejected the appellant's claim on 4th May 2005. The appellant appealed. The appeal came before immigration judge Mr Camp on 10th June 2005. His decision was promulgated on 24th June 2005. Mr Camp accepted the appellant's account and allowed his appeal. The Secretary of State however sought a reconsideration. Accordingly, under the current statutory regime, he had to show an error or errors of law perpetrated by Mr Camp.
5. On 21st November 2005 the AIT held that Mr Camp's decision was vitiated by legal errors. They gave very detailed reasons. They said:

"37. Thus, having considered all of the Immigration Judge's remaining reasons for his positive credibility assessment and giving a great deal of weight to the fact that the Immigration Judge heard and saw the Appellant give oral evidence, the Tribunal has concluded that this is one of the rare cases when it can legitimately be said that, in the absence of adequate reasoning, the Immigration Judge's acceptance of the Appellant's claim that he was a UFR activist and that he was arrested in March 2004 is perverse, as it is based on a combination of speculation and a lack of evidence. The Tribunal is satisfied that the high test for perversity is, indeed, reached in this case."

6. I should say that Mr Johnson for the Secretary of State this morning put his argument on the live points in the appeal which I will describe on reasons grounds. He was pressed by the court as to whether he pursued a perversity challenge. He was (if I may use the expression) shy of putting the case that way, because it was not so put in the Secretary of State's grounds for reconsideration. We are only concerned with the quality of Mr Camp's reasons.
7. The AIT, having concluded as I have explained, adjourned the Secretary of State's application so that the appeal could be reconsidered on the merits. It came before immigration judge Mr Spencer on 14th March 2006. His decision was promulgated on 12th May 2006 and is (as I have said) formally the subject of this appeal. Mr Spencer disbelieved the appellant's account and dismissed the appeal. The appellant's real complaint is that the AIT were wrong to hold on 21st November 2005 that Mr Camp had made any error of law. So the case turns on the quality of Mr Camp's decision.
8. At paragraph 17 of that decision Mr Camp stated that the appellant had been consistent in his evidence and had not been shaken in a thorough cross-examination. He found him to be an honest and credible witness. He, Mr Camp, also accepted (paragraph 18) the authenticity of certain documents produced by the appellant. These conclusions are of course cast in very general terms. However in paragraph 19 Mr Camp stated that he accepted "in their entirety" the submissions which had been made on the appellant's behalf. Those are recorded in paragraph 11 of the determination. Paragraph 11 reads:

"11. Mr Jaferjee, for the appellant, submitted that credibility issues were basic. The refusal letter had flaws, such as referring to Zimbabwe. It ignored everything favourable to the appellant's claim. In particular, it ignored the appellant's very detailed account of what had happened in Guinea, which had been given both in his application for asylum interview. He had maintained his account in his oral evidence. It had been detailed and consistent. He had submitted documents. The respondent, in the refusal letter, had dismissed these simply by saying that such documents were 'easily obtained'. The respondent 'wanted it both ways'. The documents constituted corroboration of the appellant's claim. The appellant had displayed a detailed knowledge of the situation in Guinea. If the appellant had made up his account, he would not have said that the last instance of persecution took place a year before he left the country. He had left because an assassination attempt had changed the situation. The fact that the US State Department Report said that Monsieur Touré had been arrested in April 2004 did not mean that he had not been arrested in March 2004. There was a clear difference between what was described in the report and what the appellant described. The appellant had explained (paragraph 16 of his SEF statement) that the leader had been free to leave the prison at night and to come back in the morning. Contrary to what was said by the respondent, there was evidence of arrests after the coup. There were reports contained in the respondent's bundle."

9. The grounds for reconsideration put forward by the Secretary of State asserted that in light of certain inconsistencies between the appellant's evidence and objective material before the court, notably a United States State Department report, Mr Camp had not given legally sufficient reasons for accepting the appellant's credibility. There was also a challenge to a finding by Mr Camp about the risk that the appellant might face if he were returned.
10. The AIT on 21st November 2005 did not accept the whole of the Secretary of State's case. It did not accept that the finding as to risk on return was unsustainable (see paragraph 28), nor did it accept a particular credibility point relating to the appellant's knowledge of the aims of the UFR (see paragraphs 29 and 30).
11. There remain three other credibility points. As regards these the AIT concluded that Mr Camp had fallen into error for want of reasoning, or (on one issue) illegitimate speculation. These are the findings which are assaulted by the appellant in this appeal and defended by the Secretary of State.
12. The first of the three credibility points concerns Mr Camp's treatment of an inconsistency or apparent inconsistency between the appellant's evidence and the State Department report on a particular factual matter, namely the date when Mr Touré, leader of the UFR, had been arrested. The appellant had said that Mr Touré had been arrested in March 2004 when he had been arrested himself. The report stated that Mr Touré had been arrested in April 2004. All that had been said about this by the appellant's representative before Mr Camp was that the fact that the report stated he had been arrested in the April did not mean that he had not been arrested in the March. That submission is recorded in paragraph 11 of Mr Camp's determination, which I have read. Mr Camp added nothing about this issue of the date of Mr Touré's arrest. The AIT held (and the Secretary of State submits) that this is a legally inadequate response to the point. It is not apparently suggested that the appellant made an honest mistake about the date. There is in fact no evidence that Mr Touré was arrested in March 2004. If he had been (the Secretary of State would no doubt say) one would have expected to see that recorded. Mr Johnson this morning articulated the reasons point in this proposition: Mr Camp gave no reasons for accepting the submission made on behalf of the appellant against the background of the fact that there was in fact no evidence that Mr Touré had been arrested in the March.
13. For my part I do not accept that on this point Mr Camp failed to give legally adequate reasons. It is very important to have in mind - and this is material also to the two remaining credibility points which I will address in a moment - that a credibility issue has to be considered by the fact-finder in the round. Reading his determination as a whole, that is what Mr Camp did here. In the context of his overall approach to the appellant's evidence his acceptance of the representative's submission about the discrepancy on the dates is understandable, notwithstanding the absence of any reference to March 2004 in the in-country material. Mr Camp's engagement with the point was admittedly sparse. It might well have been done more fully and more clearly. It would have been better if it had been. But I am unable to find that Mr Camp failed to give reasons for his view. Mr Johnson's submission that Mr Camp gave no reasons for accepting the appellant's submission about Mr Touré in light of the absence of any objective evidence is, I venture to think, really seeking reasons for reasons.
14. The second remaining credibility point concerns an assertion (see paragraph 5 of his statement) by the appellant that the UFR had been founded in the year 2000, whereas in fact it had been founded in 1992. The appellant sought to explain the error by saying (supplemental statement paragraph 6) that the party had become well known in 2000 when Mr Touré came onto the scene or became leader. Mr Camp regarded this as a satisfactory explanation (see paragraph 14 of his decision). The Secretary of State says that the matter was not properly reasoned. There is no explanation for accepting, as a proper basis for his account, the appellant's reference to the fact that the party became well known in the year 2000. That is a different matter from the date of its being founded. Moreover the AIT observed that the appellant's account was rendered "even more incomprehensible" in light of the appellant's answer in interview that he did not know the name of the person who founded the UFR in the year 2000.
15. These criticisms are in my view considerably overstated. Mr Camp accepted the appellant's evidence that the UFR became a well-known political force in 2000. A person may believe that a political party was formed at the time he became aware of it. The appellant may not have known who had founded the UFR at the time he was interviewed. It is entirely possible that he would have looked into his mistake after he was later challenged about the very issue of the date of the UFR's foundation.
16. The third and last credibility issue concerns another answer given by the appellant in interview, this time to question 83. He had said that the UFR had not formed an alliance with any other party in Guinea other than one by name the PUP. In fact the UFR had allied with a number of other political parties to form an organisation called FRAD in May 2002. Given that the appellant claimed to have risen to a relatively senior position in the UFR, the Secretary of State says that this was an important credibility point and the AIT so described it (see paragraph 34 of their decision), but Mr Camp did not expressly deal with it. In fact Mr Camp stated (paragraph 14) that:

"... members of a political party may support the party without possessing detailed information about its formation and history."

17. It is in my view elementary that the duty to give reasons does not entail a requirement that the fact-finding judge deal expressly with every point. The Secretary of State concedes as much in counsel's skeleton argument. Again in the context of Mr Camp's overall view of the appellant's credibility, the complaint here does not in my judgment rank as a point of law which vitiates his decision.
18. Now I do not suggest that there may not be a credibility case in which the immigration judge is indeed obliged to provide a substantial explanation of his or her approach to discrepancies which are found to exist. That was the position in Malaba [2006] EWCA Civ 820 (see the judgment of Dyson LJ at paragraphs 19 and 20) and also AK [2006] EWCA Civ 1182. But every case is of course different. Discrepancies may sometimes be more important where they are internal to a witness's evidence. The duty to give reasons is not a matter of ticking a checklist. Its essence is to ensure that the parties to a decision - and indeed any relevant appeal court - should understand why one has won and the other has lost. Here the immigration judge Mr Camp gave objective overarching reasons for accepting the appellant's testimony: its internal consistency in the face of thorough cross-examination (paragraph 17); its detailed nature; the support given on some points by documents found to be genuine; and a point about the date when he left the country. The three individual points on which the AIT founded on 21st November 2005 could (and I am bound to say should) have been dealt with more fully than they were, and it may be that a different immigration judge might have found them more damaging to the appellant's credibility. But in the end that is neither here nor there. Looking at the matter in the round, the parties reading the decision made by Mr Camp know why he accepted the appellant's evidence.
19. I venture to add that in my judgment the Secretary of State's position here - or perhaps more particularly that taken by the AIT on 21st November 2005 - suffers from the vice so often castigated in this court in appeals of this kind: a failure to respect the true limits of an appeal on law only. The AIT in truth has formed its own view of the facts. To condemn a credibility decision on reasons grounds amounting in truth to a legal complaint requires defects to be shown of greater substance than can be found here.
20. For all those reasons, I for my part would allow the appeal.
21. LORD JUSTICE LEVESON: I agree.
22. SIR IGOR JUDGE, P: I have some sympathy with the concerns which engaged the attention of the AIT about the quality of Mr Camp's determination and judgment. However, I agree with Lord Justice Laws that an error of law has not been established and accordingly that the appeal from Mr Camp's decision was not sustainable.
23. By way of footnote, I should add nothing in the judgments which have just been given implies the slightest criticism of the characteristically meticulous determination by Mr Paul Spencer, following the hearing which itself followed the decision of the AIT.

ORDER: Appeal allowed with costs, to be assessed if not agreed; the determination of the Mr Camp to be restored; detailed assessment of the appellant's Legal Services Commission Funding certificate.

(Order not part of approved judgment)