England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		20/04/2007

Lord Justice Keene:

1. This appeal raises issues about the effect of a decision by an appellate tribunal in immigration and asylum cases when that decision has been designated a Country Guidance case. Although this is an appeal from a decision of the Asylum and Immigration Tribunal ("AIT") promulgated on 27 April 2006, the appeal to that tribunal was against a decision of an Adjudicator made on 28 September 2004. The latter date has this significance: at that time, neither section 107(3) of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") nor the AIT's Practice Direction 1/2005 had come into force. That only happened, in both instances, on 4 April 2005. Consequently the present case is not concerned with the effect of a Country Guidance case on the determination of a decision-maker, whether an Immigration Judge or the AIT in its appellate role, made on or after that date.
2. The processing of designating certain decisions of the Immigration Appeal Tribunal ("the IAT") and its successor the AIT as Country Guidance cases and attaching the letters "CG" to them seems to have begun in a formal way in early 2004. It was not at that stage a process described in any Practice Direction issued by the President of the IAT, but seems to have represented a formalisation of a practice which had been increasingly adopted by that tribunal of seeking in certain of its decisions to carry out a thorough review of background material about conditions in a particular country.
3. The appellant is a female national of Somalia who was aged 28 at the time of the Adjudicator's decision. She had entered the UK in October 2001 and claimed asylum. That was refused by the respondent, but she was granted exceptional leave to remain until 23 November 2002. Shortly before that date she sought to vary her leave to remain so as to extend it but that was eventually refused by a notice dated 7 May 2004. Her appeal was heard by an Adjudicator in early September 2004, by which time she had an 8 month old son in this country. Her appeal was brought both on asylum and human rights grounds.
4. She claimed to be a member of a minority clan, the Ashraf, and to have suffered persecution in Somalia from the Hawiye majority because of her ethnicity. She described attacks including rape. The Adjudicator did not accept that she was an Ashraf nor that she had suffered attacks from the Hawiye majority, and he consequently rejected her asylum claim. However, he did allow her human rights claim, finding that there was a real risk that she would be subjected to inhuman or degrading treatment if returned to her home area of Mogadishu. Her return there would thus be in breach of Article 3 of the European Convention on Human Rights.
5. This was a finding based on the fact that she was a single woman with a young child and on the background material placed before him about conditions for such a person in the Mogadishu area. He summarised that material at paragraph 33 of his determination as follows:

"The stance of the UNHCR is that persons originating from southern Somalia are in need of international protection and it objects to any involuntary return of rejected asylum seekers to the area south of the town of Galkayo (page 195 in the Appellant's bundle). Mogadishu is well within this area. The UNHCR view is based on the lack of security in southern and central Somalia as well as the problem of IDP's. As regards Mogadishu, it is stated in the Fact Finding Mission report 2004 (page 225 in the Appellant's bundle) that the threat to security remains constant and that it is not possible to identify stable areas of the city. There is said to have been serious human rights violations there towards woman and children. An international NGO has confirmed that women and children have become a new target of human rights violations in Mogadishu (page 226 in the bundle). Simone Wolken has referred to young females returning from abroad being at risk of rape (page 250 in the bundle). It appears from paragraph 6.79 of the CIPU report that IDP's returnees and minorities have been categorised as vulnerable and women and children are particularly identified in this regard."

It can be seen that his summary covers a range of relevant material, including both the Home Office CIPU Report and the UNHCR paper.

6. Having arrived at this finding about the risk if returned to the Mogadishu area, the Adjudicator went on to consider the possibility of internal relocation within Somalia. This option he rejected, partly because of the difficulties she would face in relocating in an area where she would not be accepted and also because of concerns as to whether she could safely travel within Somalia to a safe area. These factors made it unreasonable for her to be expected to relocate.
7. The latter was not challenged by the respondent in his grounds of appeal to the IAT. The material part of those grounds reads:

"Given that the adjudicator found against the appellant on the issue of clan membership, his finding that to return her to Mogadishu would constitute a breach of her Article 3 rights is unsustainable. The Secretary of State will rely on the case of [2003] UKIAT 00175G in which the Tribunal held that:

"We do not feel on the evidence that the return of the appellant would expose her to a real risk of inhuman or degrading treatment. While there are cases of rape in Mogadishu, it is not established that the appellant, admittedly as a single woman, would herself be at risk given that she is a member of a sub clan of a majority clan""

Permission to appeal to the IAT was granted in November 2004. The Secretary of State's appeal to that body had not been heard by the 4 April 2005, the date on which the IAT was replaced by the AIT, with the result that this appeal was a transitional case, to be determined by the AIT. It is important to note that in effect such an appeal could only be brought on the basis that the Adjudicator had made an error of law. That is common ground in this appeal.

8. In its decision the AIT found that the Adjudicator had made two errors of law. The first concerned the IAT decision referred to by the respondent in his grounds of appeal, more accurately cited as FG (risk –single female – clan member – Article 3) (Somalia) [2003] UKIAT 00175. For brevity's sake, I shall refer to it as FG (Somalia). The AIT observed that it seemed that neither party had referred the Adjudicator to that case, which it said was a pity. In FG (Somalia) the IAT had not accepted that a lone woman was generally at risk in Mogadishu, unless she was a member of a minority clan. This appellant is not, said the IAT, at greater risk on account of her having a child.
9. It then continued as follows in paragraph 9:

"We are satisfied that the Adjudicator did err in law by not dealing with appropriate Country Guidance. It is an error that we can correct. The decision in FG has been subsumed into the further Country Guidance given in NM and Others (lone woman – Ashraf) (Somalia) CG [2005] UKIAT 00076. This was notified on 31 March 2005 and shows that, as a general rule, women are not particularly at risk of persecution unless they are members of a minority clan."

10. The second error detected by the AIT was put very briefly in paragraph 10:

"However, although no one drew it to our attention, we have considered the starred decision JM (Rule 62(7); human rights unarguable) (Liberia)*) [2006] UKAIT 00009. There has been no decision to remove this appellant and so there can be no question of there being any threat to her human rights."

11. The decision of the AIT there relied upon has since been reversed by this court in JM v. Secretary of State for the Home Department [2006] EWCA Civ 1402, which held that a human rights claim is justiciable on a variation of leave appeal, even though removal would only be an indirect consequence of a refusal to vary. The Secretary of State accepts that that basis for the AIT's decision in the present case no longer remains valid, but he contends that the first error as detected by the AIT was separate and was sufficient by itself to allow the tribunal to substitute its own decision, which it duly did. Its reasoning for its ultimate decision to dismiss the appeal was extremely brief. Beyond the reference to NM (Somalia) already cited, the AIT simply said

"In the circumstances we find that the Adjudicator erred in law but we can correct the error by applying his facts to the appropriate Country Guidance."

12. The Secretary of State now accepts that that was too cursory an analysis of the situation if the guidance in NM (Somalia) is applied. In that determination the AIT, while finding that lone women from a majority clan were not generally at risk in southern Somalia merely because they were lone female returnees from this country, went on to emphasise that a careful examination was required of the safety of internal travel to a safe place. It said at paragraph 122 that

"The mere un-announced deposit, even of a majority clan member, and especially a female, at Mogadishu airport would be likely to put them at real risk, in the absence of special factors."

Consequently there needed to be an investigation into whether such a person could safely negotiate the clan militia in control of the airport and secure a safe passage to his or her home area. It is acknowledged on behalf of the Secretary of State that the AIT in the present case failed to examine that issue, and for that reason it is accepted that this appeal should be allowed and the matter remitted for rehearing, but only on that point.

13. That does not satisfy the appellant, who takes issue with the first alleged error of law identified by the AIT, namely the Adjudicator's failure to take account of the decision in FG (Somalia). On the appellant's behalf, Miss Hooper does not seek to argue that there is no error of law if an Adjudicator fails to take account of a Country Guidance case not put before him. She expressly concedes that such a failure is an error of law even in those circumstances. I would myself have thought that the converse could properly have been argued, at least when the Adjudicator's decision preceded the coming into force in April 2005 of section 107(3) and the new AIT Practice Direction, which have given Country Guidance cases some additional force. Nonetheless, despite some encouragement from the court to take the point, Miss Hooper declined to do so, and one must proceed on the basis of her concession that the Adjudicator here did make an error of law.
14. The appellant's case is that, prior to April 2005, a failure to apply a Country Guidance case relevant to the country in question was an error of law but not necessarily a material error. It is contended that the decision in FG (Somalia) was based only on limited material and that much more material had been put before this Adjudicator in September 2004. Miss Hooper emphasises that there is little reference in FG (Somalia) to reports or other documents apart from the relevant Home Office CIPU report and that it had not originally been determined as a Country Guidance case. It was promulgated as a more conventional determination in December 2003; only in June 2004 was it designated as a Country Guidance case. It was far less comprehensively researched than one would expect, given the comments of this court in S and others v. Secretary for State for the Home Department [2002] EWCA Civ 539; [2002] INLR 416. There this court stressed the need for such guidance cases to be based upon a comprehensive analysis: see paragraph 29. The appellant does not argue that the Adjudicator was excused from taking account of FG (Somalia) because of the limited amount of research which underlay it. Rather it is submitted that that last factor means that the Adjudicator would have been likely to have decided not to follow its guidance because of the other material put before him. Reliance has been placed on part of the IAT's decision in NM (Somalia), already cited, where in one of the appeals (that of LA) the tribunal found that there was a risk not covered by FG (Somalia), a risk to the returnee at or between the point of return and the clan area: paragraph 44.
15. At one point Miss Hooper sought to submit that it was for the Secretary of State to show that, if the Adjudicator had had FG (Somalia) before him, he would have come to a different conclusion. Only then would the Adjudicator's error of law become a material error. I cannot accept that: in public law cases, an error of law will be regarded as material unless the decision-maker must have reached the same conclusion without the error. Mr Chamberlain for the Secretary of State drew our attention to this court's decision in Detamu v. Secretary of State for the Home Department [2006] EWCA Civ 604, where Moses LJ said at paragraph 18:

"The question for us is whether the error of law was material in the sense that the Adjudicator must have reached the same conclusion." (emphasis added)

I agree, and in the end Miss Hooper agreed that an error of law is material if the Adjudicator might have come to a different conclusion, had he taken account of the decision in FG (Somalia).

16. If one applies that test, the answer seems to me to be straightforward. True, the Adjudicator had additional material before him, which he would have had to weigh up together with the FG (Somalia) decision. But I cannot say with confidence that he would have arrived at the same conclusion as he did, had he taken the Country Guidance case, determined by the IAT, into account. That is perhaps well illustrated by the NM (Somalia) case itself, decided only six months after this Adjudicator's decision, where the IAT generally endorsed the proposition contained in FG (Somalia) after an examination of much the same material as the appellant had relied on in the present case.
17. One should add that the eventual decision in respect of the appellant LA in the NM (Somalia) case does not assist this appellant. It merely demonstrates that a Country Guidance case is only authority for the proposition contained within it. If there is subsequently evidence of a risk from a source or of a nature not dealt with in the Country Guidance case, then the latter may not be applicable. But that is not the situation in the present appeal, save to the extent that there may be a risk to a returnee such as the appellant at or between the place of return and a place of safety with her majority clan. That risk has already been acknowledged by the Secretary of State in the concession he has made, referred to earlier.
18. Consequently, on the assumption that the Adjudicator's failure here in 2004 to take into account a Country Guidance case which had not been put before him amounted to an error of law, I am satisfied that it was a material error of law. The AIT was entitled so to find and to embark on its own reconsideration of the position. That reconsideration was flawed to the limited extent already accepted by the Secretary of State, but only to that limited extent.
19. I would for the reasons given allow this appeal, but only to the extent of remitting the case for rehearing on the issue of the risk to the appellant, if returned, at and between the airport and a safe area in Mogadishu itself.

Lord Justice Rix:

20. I agree. Given Miss Hooper's concession, we did not need to face the argument referred to in paragraph 13 above. However, I would have needed persuading that the tribunal's failure to apply a Country Guidance case, even before the entry into force of the new practice direction in April 2005, was not an error of law: see R (Iran) v. Secretary of State for the Home Department [2005] EWCA Civ 982, [2005] INLR 633 at paragraphs 21/27.

Lord Justice Tuckey:

21. I also agree. I express no view as to how arguable the paragraph 13 point is.