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 & IMMIGRATION TRIBUNAL
[AIT No. AS/02991/2004]

		Royal Courts of Justice Strand London, WC2
		2nd March 2006

1. LORD JUSTICE BUXTON: The appellant, Miss A, is a citizen of the republic of the Sudan. She claims to be a member of the Massaleit tribe, and she claims to fear persecution in her native country, first of all as a person of mixed race, her father being a Massaleit but her mother being Arab by ethnic origin. She also fears such persecution by reason of her membership of a women's group, an association not popular in that country, and her case to the Secretary of State was that she had been arrested on two occasions for one or other of those reasons and that her village had been attacked by militia groups. The Secretary of State did not believe her case. She appealed against his refusal of asylum, and on human rights grounds as well, to an adjudicator, a Mr Billingham, who promulgated his determination on 2 April 2004. It was agreed at an earlier stage in this case that Mr Billingham's adjudication had been unsatisfactory, and on appeal to the Immigration Appeal Tribunal submissions were made, indeed on behalf of the Home Office, that the determination should be remitted.
2. What Mr Billingham found, and also the reaction to it and the order of the Immigration Appeal Tribunal in its determination of 2 March 2005, is set out in paragraphs 3 to 10 of the Immigration Appeal Tribunal's determination. It will be convenient to set those out as part of this judgment at this point, not least because the appeal before us turns on an analysis of what the Immigration Appeal Tribunal then said:

"3. At paragraph 12 of the determination the Adjudicator found the appellant to be an educated and intelligent young woman and a member of the Massaleit tribe. He also said, 'I also consider that the evidence that she had been active in the women's movement to be convincing.

4. At paragraph 30 for the determination the Adjudicator found that the appellant had been persecuted because he refers to 'the persecution she suffered' but he did not accept that she was persecuted for a Convention reason.

5. At paragraph 14 of the determination the Adjudicator referred to a ceasefire in Dafur and appeared to find that the appellant could safely relocate to Khartoum. The Adjudicator said, 'I am not convinced that 'the appellant] is being persecuted by the government specifically'.

6. With respect to the Adjudicator, there is much muddled thinking in this paragraph. What the Adjudicator should have been doing was finding whether or not the appellant faced a real risk of serious ill-treatment in the event of her return and if she did, if it was for a refugee Convention reason. He does not seem to have done that.

7. It is, we hope, obvious that the Adjudicator did not have to be convinced before allowing an appeal and the question was not if the appellant 'is being persecuted by the government specifically' but if she faced a real risk of being persecuted at all.

8. We cannot accede to Mr Wood's submission that the only possible interpretation of the evidence is that the appellant would be at risk throughout Sudan because of her political activities. This is something about which there has to be a proper finding.

9. Neither can we accept that the appellant is necessarily at risk throughout Sudan because she is a Massaleit. Mr Wood submitted that was in fact the case but did not point us to an authoritative decision of the tribunal to support that argument. Certainly there is evidence that the background material produced before the tribunal that shows how the Massaleit have been attacked in Dafur state in the North West of Sudan. They have been victims for a policy of 'Arabisation' and there is evidence that the government sponsored militia groups are trying to eradicate other black tribes from western Sudan. This is a very serious matter but we are not persuaded that this particular appellant could not avoid trouble by establishing herself in a different part of Sudan. This is a point which the Adjudicator has touched upon but, for the reasons indicated above, not considered properly.

10. In the circumstances we find that we must allow the appeal only to the extent that we direct that it be decided again by an adjudicator other than Mr Billingham".

3. So far so good. The matter therefore was remitted to be, as the tribunal put it, decided again by somebody other than Mr Billingham. That was on 2 March 2005. However, legislation altered the system as to the hearing of renewed appeals against immigration decisions. That alteration came into effect on 4 April 2005. Transitional provisions were provided in respect of cases that, like our case, were pending at that date. Those are to be found in the Asylum and Immigration (Treatment of Claimants) Act 2004 (Commencement No. 5 and Traditional Provisions) Order 2005. Article 5 thereof reads as follows:

"1. This article applies in relation to any appeal which immediately before commencement, that is 4 April 2005, is pending before an adjudicator having been remitted to an adjudicator by a court or the Immigration Appeal Tribunal.

The Asylum and Immigration Tribunal shall after commencement subject to rules under section 106 of the 2002 Act deal with the appeal in the same manner as if it had originally decided the appeal and was reconsidering its decision."

4. It was under that provision that the matter came before a new adjudicator – though by now sitting as an immigration judge in the Asylum and Immigration Tribunal – Mr Khan, on 1 August 2005. It is a point of some significance that Mr Khan heard detailed evidence effectively about the whole case, not only from the appellant but also from a gentleman who was described as her husband (I hope I will be forgiven for expressing it in those terms, because it was not entirely clear that he was her husband as opposed to her partner), and also from another gentleman who was, or said he was, a member of the Massaleit tribe. Although he did not know this applicant, he was a friend of the applicant's elder sister and gave evidence about the family situation in the Sudan.
5. At that hearing, Miss A was represented by counsel; not counsel who settled the grounds of appeal and not Mr Mahmood who has appeared before us today, but represented by counsel she certainly was. No submissions appear to have been made to suggest that Mr Khan should not hear evidence in general, and I am satisfied that such submissions were not made, because Mr Khan's judgment is extremely careful and detailed and it is inconceivable that, if it had been submitted to him that evidence was inappropriate, he would not have recorded his determination on that point. The point is of some importance at a later stage of the appeal. For the moment I will record that in a detailed and careful judgment, that Mr Mahmood has very properly said he has no complaints about in general terms, Mr Khan made detailed findings.
6. More particularly, first, and contrary to Mr Billingham, he found that the appellant was not a member of the Massaleit tribe and was not of mixed race, and secondly, that she had not been detained or arrested as she had alleged in her case before him and before Mr Billingham. He therefore concluded that she in fact had no well-found fear of persecution if she returned to her native country. That finding is unappealable and is not appealed, or at least an attempt was made to appeal it but permission was not granted by the single Lord Justice.
7. When the matter was before the single Lord Justice, the central ground really appears to have been a contention that Mr Khan should have followed the procedure laid down in section 103(A) of the 2002 Act, which obliged him first to find whether his predecessor tribunal had made an error of law and only then enter upon the appeal proper. The point was completely misconceived, I have to say, because that section applies to the new procedure under which matters are remitted by a court. It does not apply to the procedure with which Mr Khan was concerned. The remission had been made by the Immigration Appeal Tribunal not under Section 103(A), which was not in fact in force when it acted, but under section 102.1(C) which was repealed on 4 April 2005 at the same time as the new procedure came into force. That is why, being a section 102 case, it falls under the transitional provisions that I have already cited. I say no more about that point because Mr Mahmood, who has only very recently taken over the case and was not responsible for that ground of appeal, and who has appeared before us this morning with clear and helpful submissions, very properly abandoned that ground before us.
8. The point that we have to consider is the second point that was taken in the grounds of appeal and upon which the single Lord Justice did give permission, and upon which Mr Mahmood today concentrates. Mr Mahmood submits that it is necessary to scrutinise with care the reason why the Immigration Appeal Tribunal remitted the appeal to Mr Khan, because the terms of that remission circumscribed Mr Khan's discretion, indeed his jurisdiction, as to how he should consider the case further. We have already seen the guidance that the transitional provisions give as to how the new adjudicator should act. That is to say that the new adjudicator – if I can call him that, although he is in fact an immigration judge now – should:

"deal with the appeal in the same manner as if it had originally decided the appeal and it was reconsidering its decision."

9. At the same time as that order came into operation, the president of the Asylum and Immigration Tribunal, Hodge J, issued a detailed practice direction as to the forthcoming conduct of that tribunal. In paragraph 14.11 of that he said this:

"Where immediately before the 4 April 2005 an appeal is pending for an adjudicator having been remitted to an adjudicator by a court or the IAT it will already have been decided that the original adjudicator's determination cannot stand. The tribunal will accordingly proceed to re-hear to appeal."

I mention in passing, before coming to it, that that paragraph of Hodge J's practice direction was cited with approval in this court in the case of Mogos decided by this court on 18 January 2006, not yet reported.

10. Both of those formulations indicate, in my respectful view, that there is no assumption that the second immigration judge cannot hear evidence or that he cannot go behind previous credibility findings. That is the posture that everybody before Mr Khan took, as we have seen by his hearing the detailed evidence to which I have referred previously. There may, however, be cases, of which the case of Mogos has already been referred to as an example, where a remission is made on a very specific basis. That was so in Mogos itself, as this court there found. The remission was to consider and only to consider what was there described as "the Huckstep point". I say no more about that than that it related to the specific handling by the previous tribunal of the evidence of one identified witness, a Dr Huckstep.
11. In such a case, if that is the basis and limit of the remission, the tribunal to which the matter is remitted has to limit itself to that very issue. That was what was said by Laws LJ in Mogos. Summarising what the case decided, he said on the penultimate page of his judgment:

"The proposition which seems to me to be at the heart of this case [I interpose the word 'is'] that it is necessary to glean from all the facts and circumstances what was the true basis on which the case was remitted by the IAT to the immigration judge."

In my view, that basis can only have been a resolution of the question relating to Dr Huckstep's evidence. It may be that the IAT could have remitted it on a wider basis. It is not necessary to go into that. Given the basis on which they did so remit, that is the end of the case, because it means that the immigration judge was right so to express the limits of his jurisdiction. Laws LJ said in support of that that it was necessary, therefore, as I have said, to understand what was the true basis upon which the question was remitted to the IAT. Mr Mahmood argues that the correct basis of the remission in our case, applying the analysis of Laws LJ, was simply for consideration of the issue of risk on return, with the credibility finding already made by Mr Billingham being as he, I think helpfully, described it, "ring fenced". He took us carefully through the determination, the passages in which I have already set out.

12. The two most obvious points to make are, first, that that limitation was not what was stated by the tribunal in paragraph 10 of its determination, which appears to envisage a general remittal; and second, that that limitation would have been entirely contrary to what was assumed by everybody in this case and in respect of which no appeal is brought, that is to say that Mr Khan should hear evidence about the whole case. Reverting with Mr Mahmood to the earlier parts of the IAT's determination (which he says, rightly, should be read in conjunction with paragraph 10) he points to the criticisms that are made, but made, as he says, on the basis of Mr Billingham's initial findings of credibility, that is to say that the finding about whether she could re-locate to Khartoum referred to in paragraph 5 is vague and unspecific; and in paragraph 6 that there is no proper analysis of the remittal point. I would also point to paragraph 8, where it is suggested that there was no proper finding about risk relating to her political activities.
13. All this, says Mr Mahmood, is on the assumption that she was telling the truth about the matters in respect of which Mr Khan subsequently found that she was not telling the truth. I approach this argument in this way. As I have already said, the statutory background, and the approval of Hodge J's practice direction, strongly suggest that the normal case will be one where the remittal is of the whole case. Exceptions will only arise in the type of case of which Mogos is an example. In this case, however, both reading the determination of the IAT as a whole and also looking at the reality of the case, where the issues as to internal protection and more particularly vulnerability with regard to political activities are wholly bound up with the nature, state, background, ethnicity and condition of the applicant, it seems to me both on the terms of the Immigration Appeal Tribunal's determination and on, I have to say, simple common sense, that it was wholly unlikely that what they intended to do was to leave Mr Billingham's findings necessarily untouched and to preclude the second immigration judge from going into them. Had they sought to do that in a case where the issues are complex and run into each other, it would be necessary for them to say so in very clear terms, particularly in a context where, as I say, the starting assumption is that the whole case had been remitted. I therefore do not find myself able to agree – and this is essentially a matter of construction – with what Mr Mahmood says the Immigration Appeal Tribunal decided in this case. The matter, in my view, was remitted to Mr Khan as a whole, and he properly decided it as a whole.
14. We were also taken briefly to a determination of Mr Ockleton, Vice President, in a case [2006] UKAIT 13, where Mr Ockleton refers in particular (in paragraph 20) to the obligation under the new procedure in a unified Asylum and Immigration Tribunal, if a judge is reconsidering a case, if needs to be to seek illumination from the previous tribunal as to the metes and bounds of the remission. Mr Mahmood properly accepted that that case was not a section 102 remittal and Mr Ockleton's observations, if I may respectfully say so, helpful as they are, clearly relate to a case that is being tried, if I may put it in this way, de novo by the Asylum and Immigration Tribunal under the new process; rather than a case such as our own which is a section 102 remittal under the old system, in which later circumstances it would not have been open to Mr Khan, even if he were in doubt about what he had been told by his predecessor Immigration Appeal Tribunal, to seek help from them.
15. That, therefore, in my judgment concludes the matters that were argued, and I am obliged to dismiss this appeal. I have two footnotes. The first is that in the submissions in writing, settled again by Mr Mahmood's predecessor, some attempt was made to rely on R v IAT ex parte Ghambarpar, a well-known decision of Sir Michael Harrison, suggesting that parties should not be lightly deprived of a credibility finding in their favour. Far from that case helping the applicant, it in fact, on the narrow point before this court, goes against her, because Sir Michael Harrison's concern about whether the case should in that instance be remitted was precisely because he accepted that, if it were remitted, previous credibility findings would come back into issue; so that is no doubt the reason why Mr Mahmood, with the good judgment he has demonstrated throughout this appeal, did not take us to it.
16. The second point I would mention is this. Mr Mahmood, in a footnote to his skeleton argument, referred to further difficulties that may now unhappily afflict persons who are returned to the Sudan, with which however this case is not concerned and thus this court is not concerned. I am confident that if there are any further issues that ought properly be brought to the attention of the Secretary of State on behalf of Miss A, in the context of her being returned to the Sudan, Mr Mahmood can be relied upon to give appropriate advice to that effect. For today, the appeal is dismissed.
17. LORD JUSTICE LLOYD: I agree that the appeal should be dismissed for the reasons given by my Lord.
18. LORD JUSTICE RICHARDS: I also agree.

Order: Application refused.