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
AS/09402/2004

		Royal Courts of Justice Strand, London, WC2A 2LL
		17/05/2007

Lord Justice Carnwath :

Introduction

1. The appellant, HF, was born in 1979. He came to the UK from Algeria in February 2004, and claimed asylum. His case in summary was that since 2001 he had acted as an informer for the police against the GIA (Groupe Islamique Armé); that this had led to him receiving threats from the GIA, and to his family being attacked and his father killed; that he had moved twice to escape from the GIA, but was afraid of being found by them; and that the police were unable or unwilling to protect him.
2. In April 2004, the Secretary of State refused the claim. Although he accepted that there was evidence of "indiscriminate attacks and killings" by the GIA, he did not regard as credible HF's account of his own treatment, nor did he accept that the Algerian police would not protect him. That decision was upheld by an Adjudicator (Mr Saffer) in August 2004. Although he believed much of HF's story, he thought that internal relocation was feasible and that there would be adequate protection. There was an application for leave to appeal on grounds that the decision on internal relocation was perverse, and not supported by previous IAT decisions. In October 2004, the AIT granted permission to appeal, and in December allowed the appeal. The grant of permission merely stated that the application raised arguable issues, and the appeal was allowed "for the reasons given in the grant of leave and in the absence of any objections".
3. The remitted appeal was heard in June 2005 by Mrs Kempton (IJ), when HF was represented by Counsel. The decision was given on 20^th June 2005. She allowed the appeal. She regarded HF as a credible and consistent witness, and accepted his story. By this time another factor was in play. It emerged that the documents on which he was relying had come from a police archive, and had been obtained irregularly by his friend Kamal, who was a police officer. In the words of the judge:

"… Kamal came under suspicion and he is now languishing in a prison on account of a political offence. The appellant has now obtained further documents from Algeria in relation to him being charged with possessing a judicial document and taking it out of Algeria. He has also been found guilty in absentia of illegal possession of a judicial file…. "

4. The judge accepted this account. She said:

"On return, the appellant then fears the authorities and the GIA. He will most definitely not have police protection in the light of the case against him for taking the documents outwith the country. In addition, on return, he fears detention and ill-treatment." (para 26)

She referred to CIPU reports of conditions in Algerian prisons, and to UNHCR advice that rejected applicants should be returned "reluctantly" because of risk of "torture, disappearance or killing", unless they could be seen as "economic migrants". She said:

"However, this appellant cannot at all be regarded as an economic migrant. He had a good job, which he left out of fear from the GIA as he considered he could not be protected. Even if the appellant were not ill-treated by the authorities on return, he cannot expect any state protection on account of his theft of police documents. He will be at the mercy of the GIA, who will no doubt soon be aware of his return to Algeria." (para 27)

5. She concluded:

"I consider that the appellant runs a real risk of being sought out by the GIA on return on account of them seeking revenge against him for the ambush in 2003 and as they were unsuccessful in killing him in November 2003. The police will not offer state protection to the appellant given his theft of state documents. Internal flight is not viable in the light of a lack of state protection. The appellant has attempted internal relocation twice. How often does he have to try? It is unreasonable to expect the appellant to spend the rest of his life moving about the country to avoid detection by the GIA." (para 28)

6. The Secretary of State applied for reconsideration on the grounds of errors of law in that decision: first, inadequate reasoning to support the conclusion as to lack of police protection, and, secondly, failure to take account of the evidence that he had previously relocated without problems to Algiers. There was no challenge to her findings on his treatment by the GIA, or his credibility generally. Reconsideration was ordered by Professor Casson (SIJ) on 14^th July 2005 ("the Casson decision"). On 7^th February 2006, a panel presided over by Mr Jordan (SIJ) ("the Jordan panel") decided that Mrs Kempton had made a "material error of law" in holding, without any adequate reasons, that because he had committed a criminal offence, no state protection would be available to him. They concluded:

"We think that the appropriate course is for the appeal to be heard afresh by an Immigration Judge other than Mrs Kempton. The assessment of risk in this case requires a comprehensive survey of the evidence and the findings of fact made by the Judge are inadequate to form the basis for a future reconsideration."

7. The rehearing was before Judge Sacks (IJ). On this occasion HF was not represented (because, we were told, of changes in the funding rules), but he gave evidence and presented submissions. The judge rejected the appeal.
8. The decision dated 18^th July 2006 is an impressive and carefully constructed document, providing a comprehensive re-examination of all aspects of the case. They are considered under eight headings (para 51), including the credibility of his accounts of involvement with the GIA and as an informer for the police. Unlike Mrs Kempton, Judge Sacks did not regard his evidence as credible on either issue (paras 56, 58). In any event in the light of the evidence of the much reduced strength of the GIA (which HF did not seriously challenge), he found that they were no longer a significant threat (paras 44, 47, 58). He accepted the evidence of his sentence of imprisonment for taking police documents, but said that this was "by way of prosecution not persecution". On the basis of the CIPU reports, he was not satisfied that HF's treatment in prison would breach his Article 3 rights (para 61).
9. HF sought leave to appeal. He appeared in person before Pill LJ who adjourned the case for a full hearing, without granting permission. Before us, HF has been represented by Mr Gillespie relying on a skeleton prepared by Miss Jegarajah. The proposed grounds on which permission is now sought have been extended to three, on which we heard argument from both sides. In summary they are:

i) The Jordan panel erred in holding that there had been a material error of law in Mrs Kempton's decision;

ii) They erred in any event in ordering a full rehearing of the factual issues;

iii) On the rehearing, Judge Sacks erred in failing to make adequate findings as to whether HF would face oppressive treatment on return to Algeria.

The law

10. The general principles governing such appeals are not in dispute. Both parties rightly rely on R (Iran & Others) v Secretary of State for the Home Department [2005] EWCA Civ 982, as an authoritative, and for most purposes more than sufficient, statement of the law. As Brooke LJ's summary (para 90) explains:

i) Before a decision may be set aside on the grounds of error of law, the Court must be satisfied that the correction of the error would have made a material difference to the outcome or to the fairness of the proceedings.

ii) A finding may only be set aside for error of law on the grounds of perversity if it was irrational or unreasonable in the Wednesbury sense, or is one that is wholly unsupported by the evidence.

iii) A decision should not be set aside for inadequacy of reasons, unless the decision maker has failed to identify and record the matters that were critical to his decision on material issues, in such a way that the reviewing court is unable to understand why the decision was reached.

The latter proposition is a synthesis of his earlier review of the authorities on reasons (para 11-14), in which he emphasised –

"… the anxiety of an appellate court not to overturn a judgment at first instance unless it really cannot understand the original judge's thought processes when he/she was making material findings." (para 15)

11. It is also necessary to refer to the principles governing reconsideration under the procedures of the unified AIT. These were recently reviewed by this court in DK v Home Secretary [2006] EWCA Civ 1747. Although not available to the Jordan panel, this case is strongly relied on by Mr Gillespie in support of his submission (under his second ground of appeal) that the scope of the issues on the rehearing before Judge Sacks should have been limited.
12. The relevant parts of the new rules and practice direction were set out in the judgment in DK (paras 7-13). The court summarised the effect of the changes:

"14. The two substantive changes to the appeal structures under the 2002 Act and its predecessors… first, there is now only one appellate body to which an appellant can appeal from a decision of the Secretary of State, and, second, that the appeal to a second level specialist tribunal from the appellate authority has been replaced by the right to seek "reconsideration" of the appellate authority's decision if it has erred in law.

15. In one respect these changes replicate the previous position. Reconsideration is only ordered if there is an arguable error of law; and, on reconsideration, the first question that the Tribunal has to answer is whether or not there has been an error of law. It is only if it can discern such an error that it can proceed to "reconsider" the substance of the appeal. This is provided for in the rules to which I have referred, and is reflected in both practice directions."

13. Thus the full process of reconsideration involves three steps:

i) A decision that the tribunal may have made an error of law, which might have affected the decision, leading to an order for reconsideration (in this case, the Casson decision);

ii) Reconsideration itself, falling into two stages:

a) A decision that there has been an error of law (the Jordan panel);

b) If so, reconsideration of the substance of the appeal (the Sacks hearing).

The "nub" of the problem in DK itself was the scope of the final stage.

14. On that question , Latham LJ (with the agreement of the rest of the court) said:

"20… The jurisdiction is one which is being exercised by the same tribunal, conceptually, both at the first hearing of the appeal, and then at any reconsideration. That seems to me to be the key to the way in which reconsiderations should be managed in procedural terms.

21….

22. As far as what has been called the second stage of a reconsideration is concerned, the fact that it is, as I have said, conceptually a reconsideration by the same body which made the original decision, carries with it a number of consequences. The most important is that any body asked to reconsider a decision on the grounds of an identified error of law will approach its reconsideration on the basis that any factual findings and conclusions or judgments arising from those findings which are unaffected by the error of law need not be revisited. It is not a rehearing …" (emphasis added)

15. He later summarised the correct approach on the rehearing:

"25…That assessment should prima facie take place on the basis of the findings of fact and the conclusions of the original Tribunal, save and in so far as they have been infected by the identified error or errors of law. If they have not been infected by any error or errors of law, the Tribunal should only re-visit them if there is new evidence or material which should be received in the interest of justice and which could affect those findings and conclusions or if there are other exceptional circumstances which justify reopening them."

16. It is also important to see how that approach was applied in practice. In one of the cases before the court, PE, the adjudicator had accepted the applicant's credibility, but had rejected the claim on other grounds. The AIT directed reconsideration. Having found an error of law in the defective reasoning, it rejected the appellant's entire account as "completely unreliable". It also held that there was no obstacle to relocation. Latham LJ upheld the decision on the latter ground, but said that the issue of credibility should not have been reopened:

"41. There is no doubt that the adjudicator's reasoning was seriously defective. However there is equally no doubt that the adjudicator had made a clear finding in paragraph 30 that the appellant's evidence was credible. It was because she found it credible that she concluded that he had a genuine subjective fear of persecution. The problem came when she turned to the question of whether or not, objectively speaking, he could properly be said to have a well founded fear of persecution….

42. However it does not seem to me that the error of law in any way vitiated the findings of the adjudicator as to the appellant's credibility. In those circumstances, there was no justification for directing that the whole of the appellant's appeal should be reconsidered including the issues of credibility. To that extent the Tribunal's decision is itself legally flawed. However, that did not preclude the Tribunal from considering whether or not the appellant's genuine subjective fear of persecution was well founded on the facts. That only partly involved an assessment of the appellant's credibility…." (emphasis added)

He concluded that the AIT had been entitled to find that the appellant could reasonably locate "in a country the size of Nigeria", and that "the passage of time meant that he was no longer at risk". That issue did not depend on the credibility of the appellant, but on "an evaluation by an expert Tribunal of the likely risks were this appellant to be returned to Nigeria" (para 43).

17. There is no dispute before us that those passages indicate the correct approach to reconsideration. I would add one comment. Latham LJ had earlier referred to support for that approach by Sedley LJ in Mukarkar v Home Secretary [2006] EWCA Civ 1045, [2006] INLR 486. He said:

" 43. I would add this on the procedural aspect of the case. Had the Tribunal been right in its critique of the determination in relation to Rule 31(7), it should have included in its order a direction that the immigration judge who was to continue the reconsideration should do so on the basis that the facts found by Mr Ince were to stand save in so far as the issue to be reconsidered required their significance to be re-evaluated.

44. The reason why it is important to be rigorous about this is that reopening a concluded decision by definition deprives a party of a favourable judgment and renders uncertain something that was certain. If a discrete element of the first determination is faulty, it is that alone which needs to be reconsidered. It seems to me wrong in principle for an entire edifice of reasoning to be dismantled if the defect in it can be remedied by a limited intervention, and corresponding right in principle for the AIT to be cautious and explicit about what it remits for redetermination."

18. As Latham LJ noted, those comments had not been the subject of argument in that case, nor were they in terms adopted by the other members of the court (of which I was one). I am happy now to adopt them. They remind us that there are two distinct aspects to the new approach, equally important. One is efficiency, the other fairness. On the one hand, the approach gives effect to the policy objective "to streamline the overall appellate process…" (DK para 4). On the other, the appellant should not be subjected without good reason to the stress and uncertainty of a new hearing on an issue on which he has succeeded. Both aspects are relevant to the present case.

Discussion

19. I turn to consider the three proposed grounds of appeal.

Reasons

20. I agree with the Jordan panel that Mrs Kempton's decision was subject to a material error of law on the issue of police protection. Lack of police protection was critical to the appellant's case since otherwise there was no basis for holding the state responsible for his treatment by the GIA. No reason was given for the finding that his conviction for taking police papers would lead to the loss of police protection against militant groups.
21. Mr Gillespie fairly accepts that the decision on this point was inadequately reasoned. He argues that the error was not "material" because the ultimate decision to allow the claim can be supported on other grounds. He points to what Mrs Kempton said about the risks to returning asylum-seekers, and conditions in Algerian prisons. However, it is no answer to a reasons challenge that the case might have been decided in the same way on other grounds, unless perhaps the answer is obvious. Mrs Kempton's comments on these aspects did not go so far. She expressed concerns, but one cannot read into her conclusions a finding that the likely treatment of HF by the Algerian authorities would of itself amount to persecution.
22. I would refuse permission to appeal on this ground.

Scope of reconsideration

23. On the second ground of appeal, it seems to me that the answer is equally clear the other way. In the light of DK it was in my view wrong for the Jordan panel to order reconsideration of the whole case, including credibility. The appellant's account of his treatment by the GIA, and of his role as an informer for the police had been accepted by Mrs Kempton. That finding had not been challenged on the request for reconsideration, nor had any new material or other exceptional circumstances been identified to justify reopening it. Had the guidance in DK been available to the Jordan panel, I would have expected them to have taken steps to limit the issues on the rehearing to exclude those not materially affected by the error of law. Although they cannot of course be blamed for the failure, it was nonetheless (as in PE) an error of law.
24. Mr Strachan argues against this simple view. He says, rightly, that the form of the rehearing is a matter for the judgment of the AIT. The panel was entitled to take the view that the issue of credibility should not be compartmentalised. As he puts it in his skeleton:

"… where Immigration Judge Kempton had not otherwise addressed the potential availability of state protection and internal flight on the facts because of her error regarding the effect of the criminal conviction, there were significant potentially unresolved factual issues about the Appellant's circumstances relevant to both state protection and internal flight. In this situation, the AIT is entitled to conclude the appropriate course for a reconsideration is to order the appeal to be heard afresh by a new Immigration Judge to enable a comprehensive survey of the evidence for an assessment of risk."

25. I see the theoretical force of this argument. But it ignores practical reality and human considerations. Judgment of credibility in cases such as this is inevitably a difficult and imperfect exercise. Different tribunals hearing the same witnesses may reach quite different views. A search for theoretical perfection is doomed to failure. In practice many of these cases fall naturally into two parts: the first depending on as assessment of the applicant's account of his own past experiences, the second on a more objective appraisal of his prospects on return. That was the distinction drawn in PE and it is equally valid here in my view. It is sensible case-management and convenient for everyone to treat the decision on the first part as a fixed factor, so that the debate concentrated on the second part.
26. From a human point of view, appearing in front of a tribunal in support of an asylum claim must be a gruelling experience at the best of times. To require it to be repeated on issues which have already been decided is not only wasteful of the tribunal's time and resources, but oppressive and potentially unfair for the applicant. This case illustrates both aspects. Instead of a relatively narrow inquiry into the threat currently posed by the GIA, and the consequences of the applicant's recent conviction, the tribunal had to undertake a full scale-review of the whole case from the beginning, leading to the laborious and time-consuming preparation of a decision running to 68 paragraphs. For his part, the applicant, now unrepresented and having to act as advocate and witness, was required to go back over the whole story for the third time, and reargue eight separate issues, without any credit for the favourable impression he had made on the two previous tribunals.
27. In my view, this ground of appeal is in principle entitled to succeed, subject to Mr Strachan's final point. He says that, even if the panel did err in this respect, it made no difference to the ultimate result. That point is tied in with the third issue to which I now turn.

Treatment on return

28. As has been seen the original claim was based on HF's fear of the GIA, and the prospective lack of the police protection from them. By the time of the Sacks hearing, the evidence was that the GIA was much reduced in numbers and influence, and had ceased to be a serious threat. The judge concluded that, even if he had accepted HF's story, he would have rejected the application because he "could relocate in any area in which he was not known where the GIA would be unlikely to find him" (para 58). That view of the present state of the GIA is not itself challenged. On this basis, submits Mr Strachan, the prospect of police protection from the GIA has become irrelevant, as has the credibility of HF's original story.
29. However, HF's real concern now is not lack of protection from the GIA, but the fear of maltreatment by the state itself, following his conviction in absentia. In a supplementary statement to Judge Sacks (dated 30^th May 2006), HF said this:

"While in detention, as his wife told my sister Amina, my friend Kamal was taken by the officers of the Département du Renseignement et de la Sécurité (DRS)… to an unknown place – where he was tortured and forced to confess his political offence, effectively my friend Kamal under torture had told the Algerian authorities everything about the stolen file. The Court came to the conclusion according to what my friend had confessed under torture and passed – four years in prison – on me in absentia for political offence (illegal possession and smuggling abroad of confidential documents).

Now I fear the State authorities, and I am not able to avail myself of the protection of my own authorities because by doing so I will expose myself to torture and imprisonment for four years at the very least for crime I had to commit in order to support my asylum claim in the UK, and what happened to my friend Kamal would certainly happen to me were I to be returned to Algeria…. "

He referred to extracts from the CIPU report for October 2005 (para 6.16), which spoke of the use of torture by the Algeria authorities "in most cases… to extract statements or 'confessions' from persons held in custody…", and of "torture being used systematically in 'terrorism'-related cases and selectively in other political and criminal cases…" He also relied on an expert report by Professor Seddon, who referred to the "risk of brutal and inhumane treatment while in detention for four years". He said:

"It is highly likely that he would be detained at immigration, given his status as a failed asylum-seeker, for more detailed questioning, and that his criminal record would then become evident. At that point he would almost certainly be turned over to the police and judicial authorities and sent to jail… he might be liable to other charges brought against him by the Algerian authorities. There is ample evidence from a variety of sources (including reports by Amnesty International) that the treatment of prisoners in Algeria, particularly political and quasi-political prisoners and those associated with security breaches of which HF will be accused – continues to be poorly regulated and often in breach of basic human rights. Under the circumstances, he might expect brutal and inhumane treatment, even torture, at the hands of the Algerian prison authorities, were he to be returned to Algeria."

30. The judge also had before him an Amnesty International report of May 2005, which refers to significant allegations of torture and ill-treatment by the DRS including "detention of the accused in places impossible for them to know the location of, and torture, including beatings and the torture known as the chiffon…"
31. The judge did not in terms reject the evidence of Kamal's treatment (para 47). Indeed, he treated the fact that HF had arranged for Kamal to steal the documents as indicating that the escape was carefully planned, rather than "the actions of a person who is panicking because of fears from the GIA…" (para 57). He noted the concerns expressed in the CIPU reports and in the expert report of Professor Seddon. On other side, he was also referred by the Home Office representative to CIPU extracts, which indicated that prison conditions "generally meet international standards" and are subject to "independent monitoring", although visits were not permitted to "military or high security prisons" (para 46, citing CIPU para 5.50, 53).
32. The judge concluded on this issue:

"I am satisfied, having considered all the objective evidence, that any conditions that the Appellant would have to endure, whilst they may not be as comfortable as in UK prisons, would not justify me coming to a finding that the prison conditions of themselves would breach the Appellant's Article 3 ECHR rights. Nor can I find any evidence which would satisfy me that this Appellant would be in any way abused or tortured during his serving of such a sentence to the extent that his Article 3 ECHR rights would be breached." (para 61)

33. Mr Strachan submits that this conclusion is unrelated to any issues relevant to the credibility of the particular applicant. It depends on an assessment of the objective material. Accordingly, even if the AIT was wrong to reopen those issues, it would have reached the same ultimate conclusion.
34. Having found an error of law, it would be wrong for this court to confirm the decision unless satisfied that the error could have made no difference. I am not able to go so far. The interpretation of the objective evidence cannot be wholly separated from the facts of the particular case. Having disbelieved the substance of HF's case, the judge was entitled to regard him as in effect an economic migrant who would be of no interest to the security police on return. If he had to serve a prison sentence, it would be as an ordinary prisoner, for whom there was no reason to fear abuse or torture. The evidence of Kamal's treatment, however, told a rather different story, and to some extent was consistent with the objective evidence of the treatment of those detained by the security services. It is true, as Mr Strachan says, that the purpose of his torture is said to have been to extract the confession which led to his and HF's conviction. One cannot assume that, following conviction, HF would be treated in the same way. Indeed, Professor Seddon implies that on return he would be likely to be handed over to the judicial authorities, not the security services, although he suggests that there might be other charges. However, if the judge had seen any truth in the account of Kamal's treatment, and any parallel with HF's position, it would have been difficult for him to say that he could not find "any evidence" to support the case.
35. More generally, HF would have been presenting his case on those aspects as someone who had been found to be generally credible, and a genuine fugitive from a situation he found intolerable; rather than as someone who had simply made up the whole story, "with the intention to come to the UK to better himself", as the judge put it (para 57). He would have started with the confidence and perhaps the sympathy of the tribunal. Those may be important assets, particularly for a litigant in person.

Conclusion

36. I am very reluctant to send the case back for a fourth hearing. However, the inescapable consequence of the decision of this court in DK is that the decision to open all aspects of the case for reconsideration was wrong in law. Although I make no criticism of Judge Sacks, that error potentially affected the fairness of the proceedings before him, and there is a possibility that the result might have been different. In these circumstances I see no choice but to grant permission on the second ground of appeal, and to allow the appeal.
37. The case should go back to a different tribunal, which should disregard the decision of Judge Sacks. It will start from the basis that the applicant's general credibility, including his account of his treatment by the GIA, his role as a police informer, and his conviction in his absence, has been accepted. Starting from that base, it will be for the AIT, in the light of the up to date submissions of the parties, to determine the scope of the issues. Regardless of Judge Sacks' decision, it seems unlikely that HF will be able in current conditions to base a case on the threat from the GIA itself. Accordingly, the real issue for the tribunal is likely to be the extent of the threat from the state authorities themselves on his return.
38. For these reasons, I would allow the appeal.

Lord Justice Lawrence Collins:

39. I agree.

Lady Justice Hallett:

40. I also agree.