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 HIGH COURT
ASYLUM AND IMMIGRATION TRIBUNAL

		Royal Courts of Justice Strand London, WC2
		18th January 2006

1. LORD JUSTICE LAWS: This is an appeal, with permission granted by Lord Justice Neuberger on 26 September 2005, against the determination of the Asylum and Immigration Tribunal (AIT), in the shape of a single immigration judge Mr Kinloch, promulgated on 5 May 2005. By that decision the immigration judge dismissed the appellant's appeal on human rights grounds against a refusal by the Secretary of State, dated 1 November 2001, to allow him to remain in the United Kingdom.
2. The case has an extremely convoluted procedural history, to which I will come. The appellant was born of Eritrean parentage in Addis Ababa on 6 July 1982. He has been treated by the Home Office as being of Eritrean nationality. He has not previously been in Eritrea. He arrived in the United Kingdom on 9 April 1999 and applied for asylum some days later. His claim for asylum is summarised in a number of places in the documentation. I take the crisp summary given by Mr Talbot, an adjudicator, who, on 27 June 2003, gave one of a succession of rulings in the appellant's case. Paragraph 6 of his determination reads:

" ..... The appellant was born in Addis Ababa, both of his parents having been born in (what is now) Eritrea, but they moved to Ethiopia when they were young. His father worked for the police security and his mother was a nurse with the Defence Force. When they were assigned to Asmara in 1989 for two years, the appellant remained with his aunt in Addis Ababa. His parents returned to Ethiopia in 1991 when the EPLF gained control. Soon afterwards they were arrested by the new Ethiopian Government on account of previous service for the Dergue regime and imprisoned for three years. After release they worked in the private sector. Problems started when the border dispute began between Ethiopia and Eritrea in May 1998. In March 1999, he returned home from school to find that his parents had disappeared and he went into hiding with his aunt. Within two weeks arrangements were made for his departure and he flew to the UK. The appellant claimed he could not return to Ethiopia, as they would regard him as Eritrean, and he could not return to Eritrea safely, as his parents had worked for the Dergue. Also he would be liable to perform military service in Eritrea and fight against the Ethiopians, which he could not agree to do, as he regarded them as his brothers."

3. The asylum claim was refused on 13 July 2000. The appellant's appeal was dismissed by an adjudicator, Mr Varcoe, on 5 December 2000. Mr Varcoe (paragraph 25) found the appellant to be "entirely unreliable" and "deliberately withholding a good deal of information, particularly about his parents". He gave detailed reasons for this view. He found that the parents had not been in prison for three years as claimed. He also held (paragraph 26) that even if he was wrong he was not satisfied that on return to Eritrea the appellant would face persecution for a Convention reason.
4. After Mr Varcoe's decision and refusal of leave to appeal to the Immigration Appeal Tribunal (IAT), the appellant made an application for leave to remain in this country on human rights grounds, specifically by reference to Articles 3 and 8 of the European Convention on Human Rights. That application was refused by the Secretary of State on 1 November 2001. As I have indicated, this was the decision which was ultimately the subject of consideration by the immigration judge in 2005 in the determination now under appeal. The appellant's appeal against the decision of 1 November 2001 was, in the first place, heard by another adjudicator - Mr Talbot - on 30 May 2003. I have referred, in passing, to his determination promulgated on 27 June 2003. He dismissed the appeal. He adopted Mr Varcoe's credibility findings. He observed that the only relevant new evidence before him was a claim by the appellant that he had been abused by his parents and that was why he had made no efforts to trace them.
5. The appellant obtained leave to appeal against Mr Talbot's decision to the IAT. Their decision was in due course promulgated on 2 March 2004. There was fresh medical evidence before the IAT; it took the shape of a report from Dr Mark Huckstep. The basis on which leave was given to appeal to the IAT was that it was arguable that Dr Huckstep's report undermined Mr Talbot's dismissive treatment of a certain letter from a MIND counsellor in paragraph 19 of his decision. That letter was said to support the allegations of abuse which had surfaced. The IAT dismissed the appeal on 2 March 2004. They agreed with Mr Talbot about the MIND counsellor and accepted criticisms of Dr Huckstep which were advanced by the Secretary of State. Dr Huckstep had not given oral evidence before them.
6. The appellant applied to the IAT for permission to appeal that decision to this court. The Deputy President of the IAT, Mr Ockelton, considered that the grounds put forward had merit. Here is his ruling:

"Given the history of Dr Huckstep's report and the respondent's treatment of it, it is arguable that the tribunal should not have allowed the respondent to mount challenges to it in its author's absence or should have allowed an adjournment for Dr Huckstep to give live evidence. I propose under rule 30 to set aside the tribunal's determination and direct that the appeal to the tribunal be re-heard. Any representations to the contrary must be made within 14 days of this notice."

That opportunity to make representations having been given, Mr Ockelton proceeded to act as he had indicated, and on 27 May 2004 he set aside the decision of the IAT of 2 March and ordered that the human rights appeal be re-heard by a different tribunal.

7. The re-hearing took place on 1 November 2004. The IAT's determination was promulgated on 13 December 2004. It is important to notice, given the primary issue in the case to which I will shortly come, that the tribunal decision is entirely taken up with discussion of what may be called the Huckstep point, that is to say, the issue upon which Mr Ockelton had directed a re-hearing. At length at paragraph 12 of its determination the IAT say this:

"Dr Huckstep attended at the hearing before us. Mr Gillespie [counsel for appellant, as he has been in this court] confirmed that one of the reasons for the report was to deal with the credibility findings of the adjudicator. Accordingly it seems to us that the report of Dr Huckstep cannot be considered in isolation to the appellant's evidence and that we cannot deal with the doctor's report without having regard to the adjudicator's findings on credibility as the two are inextricably linked. We are not the primary finders of fact. In those circumstances we do not have any other option than to remit this appeal."

After observing that the advocates on both sides were in agreement that there should be a remittal, the tribunal finally say at paragraph 14:

"Accordingly this appeal is allowed but only to the extent that it is to be remitted to be heard afresh by an adjudicator other than Mr Talbot and Mr Varcoe."

8. So, at length, the matter came before the immigration judge, Mr Kinloch. Dr Huckstep gave oral testimony before him. The immigration judge said:

"3 Since the date of the second tribunal hearing in November 2004 the IAA [Immigration Appellate Authority] has of course become the AIT. The hearing before me is no longer, as I understand it, technically a hearing de novo, but is a reconsideration. As I understand the currently accepted view, the error of law which is required for a reconsideration is the error identified by the second tribunal which resulted in the decision to remit for a rehearing. Although there seems to be some divergence of views as to the appropriate approach in a transitional case like this, the majority view appears to be that the reconsideration ought to be treated as a hearing de novo in the same way that it would have been treated prior to new procedures coming into force on 4 April 2005."

I shall refer briefly to the statutory position in a moment. The immigration judge proceeded to conclude:

"29 However, having taken into account Dr Huckstep's view, I find that they are not sufficient to cause me to set aside the credibility findings of Dr Varcoe. As I have narrated above, Mr Varcoe's findings were based only in part on the position regarding the appellant's parents. Essentially, Mr Varcoe commented that he believed that the appellant was withholding information about his parents. That, it would now appear, was true, although not in the way that Mr Varcoe anticipated. In relation to the parents, however, Mr Varcoe really did not go much beyond saying that he felt that information had been withheld. His other credibility findings, which were crucial to the asylum appeal, were made independently. Even if it is accepted (following Dr Huckstep's views) that the appellant had a good reason for not trying to find his parents, with the result that the part of Mr Varcoe's determination regarding information being withheld is ignored as being unsafe, in my view there is no new evidence put before me which allows me to interfere with the other basis for the credibility findings. The appellant's claims, as I have said, were not rejected just because Mr Varcoe was suspicious of his claim that he had not tried to find his parents. They were rejected for other, different, reasons, and there is no new evidence before me which suggests that the other reasons were flawed in any way.

30 I accordingly come to the conclusion that the appellant has failed to lead evidence which allows the original credibility findings to be overturned.

Other matters

31 The material error of law identified by the tribunal was in relation to the possible effect of Dr Huckstep's views on the credibility findings. No other material error of law was identified as having taken place in either the determination of Mr Talbot, or in the subsequent consideration of the determination by the first tribunal. It therefore seems to me that I may not be required to go beyond the reconsideration on the point of law narrated above. Nevertheless, in case I am wrong about this I will go on to indicate, albeit briefly, my views on the appellant's other Human Rights arguments as set out in his counsel's skeleton argument."

The important paragraph, as I shall show in a moment, is paragraph 31.

9. Thereafter the immigration judge proceeded to consider, relatively shortly, the other matters. He concluded that there would be no violation of Articles 3 or 8 in the event of the appellant being sent to Eritrea.
10. There are three issues in the appeal formulated in the appellant's skeleton argument prepared by Mr Gillespie as follows:

"(1) Did the immigration judge err in law in finding he was not entitled to consider afresh the merits of the appellant's human rights claim?

(2) So far as the immigration judge did consider the appellant's human rights claims, albeit 'briefly', did he err in law in failing to address the claim as put to him and in failing to address relevant tribunal decisions and evidence showing that there was a risk of torture for persons regarded as draft evaders?

(3) Did the immigration judge err in finding that there was no basis for reaching a different conclusion on credibility."

11. I turn to the first of these issues, described as the jurisdiction issue. Mr Gillespie's argument is based on paragraph 31 of the immigration judge's determination. He characterises this as a decision that "his jurisdiction on the appeal was limited to considering whether there was any error of law in Mr Talbot's determination" (see paragraph 10A of Mr Gillespie's skeleton argument). By the time the immigration judge was dealing with the matter, as he indicated in paragraph 3, the statutory regime for the disposal of asylum appeals had changed; that was by force of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 which had come into force on 4 April 2005. Adjudicators had become immigration judges. There were transitional provisions. The Asylum and Immigration (Treatment of Claimants etc.) Act 2004 (Commencement No 5 and Transitional Provisions) Order 2005 provides, in part, as follows:

"(1) This Article applies ..... in relation to any appeal which immediately before commencement is;

(a) pending before an adjudicator, having been remitted to an adjudicator by a court or the Immigration Appeal Tribunal .....

(2) The Asylum and Immigration [Appeal] Tribunal shall, after commencement, subject to Rules made under section 106 of the 2002 Act, deal with the appeal in the same manner as if it had originally decided the appeal and it was reconsidering its decision."

12. Mr Gillespie says this has to be read together with a Practice Direction issued by Mr Justice Hodge on 4 April 2005, the date when the new regime took effect. Paragraph 14.11 of the Practice Direction is in these terms:

"Where immediately before 4 April 2005, an appeal was pending before 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 the appeal."

13. Mr Gillespie says that in the circumstances and given those provisions the immigration judge in May 2005 was accordingly required to carry out a full re-hearing. He says that is what the term used by the IAT at paragraph 14 of their determination of 13 December 2004 means. He submits that paragraph 31 of the immigration judge's determination shows that he failed to execute that task.
14. I should say first that I would accept the submission made by Miss Gallafent for the Secretary of State, that the immigration judge did not confine his consideration of the case quite to the extent that Mr Gillespie suggests. Miss Gallafent offers the following synopsis of the immigration judge's approach at paragraph 15 of her skeleton argument, which it is convenient to set out. This is how Mr Kinloch, in her submission, approached the appeal:

"15.1 Following the changes to the immigration appellate structure, the hearing before him was no longer technically a re-hearing de novo but a 'reconsideration' (see paragraph 3) [of the determination].

15.2 However, although there was some divergence of views as to the appropriate approach in a transitional case such as this, the majority view was that the reconsideration ought to be treated as a re-hearing de novo in the same say as it would have been treated prior to the new procedures coming into force (see paragraph 3).

15.3 It was agreed on both sides that in accordance with the case of Devaseelan v Secretary of State for the Home Department [2002] UKIAT 00702, [2003] Imm AR 1, the starting point in his reconsideration of the appeal was the credibility findings made by the original adjudicator in the asylum appeal, Mr Varcoe (see paragraph 5).

15.4 The only substantial evidence before him that was not before Mr Varcoe was the evidence of Dr Huckstep, and accordingly he had to take as his starting point the findings of Mr Varcoe as to credibility and look at those findings in the light of the views of Dr Huckstep to see if the credibility findings ought to remain (see paragraph 19).

15.5 Taking into account Dr Huckstep's views, he found that they were not sufficient to cause him to set aside the credibility findings of Mr Varcoe (see paragraph 29).

15.6 Having concluded that the appellant had failed to lead evidence which allowed the original credibility findings to be overturned ..... the immigration judge proceeded to 'other matters' ([see the cross] (heading before paragraph 31)."

Paragraph 31 then follows.

15. The reasoning of the immigration judge, summarised in counsel's skeleton argument for the respondent, in my judgment properly disposed of the only legal point which had been identified by the IAT when they dealt with the case and remitted it on 13 December 2004. It is important to have in mind, at least as a matter of background, that the jurisdiction of the IAT in December 2004 in the events which had happened was limited to points of law only. Section 101 of the National Asylum and Immigration Act 2002 conferred a jurisdiction on the IAT to entertain an appeal from an adjudicator only on law. Mr Talbot's decision had been promulgated after the date - 9 June 2003 - when that provision took effect.
16. In this case, as it seems to me, following Mr Ockelton's direction which I have read, the IAT on 13 December 2004 were required, first and foremost at least, to deal with the Huckstep point. That was the only point of law on which Mr Ockelton directed a re-hearing by the IAT, and it was the only matter with which the IAT itself dealt on 13 December 2004. It is to be noted, as Miss Gallafent submitted, that other matters relating for instance to issues concerning military service had not been accepted by the earlier tribunal on 2 March 2004.
17. Had the IAT on 14 December 2004 allowed the appeal without any re-committal for reconsideration on the basis that the point about Dr Huckstep undermined the earlier credibility finding, then I would accept that the door might have been opened for other issues - indeed other evidence - to be considered so that the IAT might decide what order ought to be made. However that did not happen. They remitted the case. I have read the terms in which they have remitted it. It seems to me to be inescapable that the only basis for that remittal, on the facts here, was so that the Huckstep point might be properly resolved with evidence. That is, in effect, what the tribunal say in paragraph 12 in the determination of 13 December 2004. That fits entirely with the only basis on which the case was before them following Mr Ockelton's direction. Mr Gillespie accepts that there was power in the IAT to order a remittal as appropriate either for an appeal to be re-determined at large or on a narrower basis.
18. Miss Gallafent referred to a tribunal decision - YF - and it is useful in this context to notice paragraph 34 of what was there said:

"We see nothing in terms in which the Vice President granted permission to appeal to the Immigration Appeal Tribunal or in which that tribunal remitted that appeal for rehearing to indicate that it was the intention of either of them that the reconsideration now before us should be carried out on the basis of the adjudicator's original findings of fact. We see no grounds for inferring any such intention on the part of either of them. Accordingly, we conclude that the reconsideration is to be carried out on the basis referred to in paragraph 14.11,"

that is of course of the Practice Direction which I have cited -

"namely, that we are to 'proceed to re-hear the appeal', and arrive at our own findings of fact on the basis on the evidence adduced before us."

That helps to underline the proposition which seems to me to be at the heart of this case, 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 for resolution of the question relating to Dr Huckstep's evidence. It may be that the IAT could have remitted the case on a wider basis. It is not necessary to go into that.

19. Given the basis on which they did so remit, if my Lords agree, that is the end of the case; for it means that the immigration judge was right in paragraph 31 to express the limits of his jurisdiction in the events which happened as he did. It means also that his consideration of the "other matters" was strictly beyond his power. Mr Gillespie's second and third grounds of appeal relate to those. In the circumstances it does not seem to me either necessary or desirable that I should go into them.
20. I would therefore dismiss the appeal on the basis that the immigration judge's view of his jurisdiction was correctly arrived at. I would only add, as perhaps is obvious, that with respect to the IAT it would have been highly desirable had they spelt out with greater clarity the basis on which they were deciding to remit the case.
21. LORD JUSTICE RICHARDS: I agree that the appeal fails on the jurisdiction issue for the reasons given by Lord Justice Laws.
22. The second issue relates to a matter that did not fall within the scope of the remittal to the immigration judge and therefore does not arise for consideration.
23. It might be said that the third issue - whether the immigration judge erred in finding that there was no basis for reaching a different conclusion on credibility - relates to a matter that did fall within the scope of the remittal to the immigration judge and does therefore arise for consideration.
24. For completeness I would add that, in my judgment, the appeal must plainly fail on that issue too. Lord Justice Neuberger gave permission to appeal in respect of the issue only because it could be tied up with the first ground, not because he considered it to have a real prospect of success as an independent issue. It seems to me that is the correct analysis.
25. I do not need to set out the detail of the immigration judge's reasoning. It suffices to say that I am satisfied that it was reasonably open to him to reach the conclusion he did in paragraph 29, which Lord Justice Laws has already quoted, on the credibility issue. I would reject Mr Gillespie's short submissions to the contrary.
26. LORD JUSTICE AULD: I, too, agree that the appeal should be dismissed for the reasons given by my Lords. The appeal is therefore dismissed.

Order: Appeal dismissed